The Issue of "Issue": Construction of Wills When Parentage is Contested

It is common for testators to make gifts to their “children”, “descendants” or “issue”, such as a “gift of the residue of my estate to my issue per stirpes.” Because biological lineage is, it would seem, the criterion for entitlement to such gifts, beneficiaries under a will can try to increase their share of the gift by proving that other beneficiaries, such as their siblings, are in fact not biologically related to the testator and are thus not properly members of the class of beneficiaries. The relatively recent development of cheap and reliable DNA testing makes it easier than ever before to disprove biological descent. In estate litigation, this has the potential to significantly alter distributions, and even undermine the intentions of the testator.

10 Things to Know Before Making Your Will

10 Things to Know Before Making Your Will

Making your will can be a challenging experience. No one wants to think about death or the death of a loved one, but it’s important to have a will prepared in case of an unexpected event to ensure the handling of your estate is a straightforward and easy process for your loved ones. Because a will is a legally binding document that will hold up in a court of law, there are some decisions to be made to ensure that your will is aligned with your best interests. 

What to do in a Motor Vehicle Accident (MVA)

What to do in a Motor Vehicle Accident (MVA)

For drivers: Things to do if you are involved in a motor vehicle accident


First Steps

1.     Stay safe. Don’t rush. Stay in your vehicle. Take a breath. Take as long as you need to take stock of what has happened and note your surroundings. Are you hurt? Are your passengers hurt? Do you need to call 9-1-1?

The 2017 Federal Budget’s Impact on Workers

Dylan Snowdon

On March 22, 2017, the federal government released its 2017 budget.  The new budget includes proposed changes to the Canada Labour Code, the Employment Insurance Act, and other legislation that will affect Canadian workers and employers.  While many of the changes will only impact federally regulated employees immediately, provincial employment standards often follow the federal lead over time.  Because the Alberta government is currently reviewing employment and labour laws with a view to modernization, it is possible that Alberta could follow this lead in the near future.

We expect that under the new budget, Employment Insurance premiums will rise and EI benefits will increase. Skills training initiatives will be expanded to help retrain unemployed workers. Parental and caregiver benefits will be granted longer, more flexible arrangements.  The caregiver benefit granted under the EI Act has been expanded to cover more situations, such as a new 15 week benefit to care for an ill relative, and to allow the sharing of benefits between family members.  Both parental and caregiver benefits have been granted an option to receive 33% of average weekly earnings for up to 18 months, or the existing 55% for up to 12 months.  Although granting extended leaves is not required, federally regulated employers will likely need to provide a reasonable explanation if requests for extended leave are denied.

Should I Accept This Severance Package?

Dylan Snowdon

When your employment is terminated, and you are considering whether or not to accept a payment being offered in lieu of notice, there are some key elements you should think about.

First, you should review your written employment contact or offer letter if you have one.  Often, Canadian employees do not have an employment contract with a termination clause specifying the amount of working notice or payment they will receive when their employment is ended.  If you do, the contract should be reviewed by an employment lawyer to determine whether it is legal and enforceable or not.  If the termination clause is enforceable, then the only question is whether your former employer has paid the correct amount.

If you do not have a written termination clause, then the amount of notice (or pay in lieu) that must be provided is determined by the common law.  A “reasonable” notice period is assessed on a case by case basis and accounts for your length of employment, age, position, education, experience, market conditions, and other factors.  Depending on the circumstances, notice periods usually range from 2 weeks to 2 months per year of service. Your employment lawyer will be able to provide you with a review of court decisions in similar circumstances to provide an estimate of what a court would determine as the reasonable notice period.

Federally Regulated Employers Be Cautious

Important Change in Law Issued by Supreme Court of Canada, Giving Employees More Firepower in "Unjust Dismissal" Provisions of the Canada Labour Code

Joseph G. Oppenheim and Lauren A. Barteluk

In Wilson v. Atomic Energy of Canada Ltd.[1] the Supreme Court of Canada provided a critical clarification to the “unjust dismissal” provisions in the Canada Labour Code (the “Code”).[2] The Court ruled that the Code prohibits federally regulated businesses and organizations from dismissing most non-unionized employees without cause subject to certain exceptions. In its reasons, the Court stated that Parliament’s intention in drafting this part of the Code was “to offer an alternative statutory scheme consisting of expansive protections much like those available to employees covered by a collective agreement.” In other words, the intention was to provide protections similar to what unionized employees generally have.

The consequence of this decision is that unless specific exceptions apply, any without cause dismissal will be deemed “unjust.” The applicable exceptions are referenced in the Code. Examples of these exceptions include lay-offs due to lack of work or discontinuance of a function, dismissal of managers without cause, and people that have been employed for less than 12 consecutive months

The Pendulum Swings Toward Employees Regarding Bonus Entitlements

Spencer Hoffman & Joe Oppenheim

Bonuses are typically used by businesses to incentivize employees to perform better. However, when bonuses are paid year after year, they become reasonably expected components of annual compensation. Complications arise when employers seek to exclude such bonuses from pay in lieu of notice. 

Employers frequently implement a policy that makes “active employment” a condition for bonus eligibility. This seems perfectly clear. If employees are dismissed without cause, they are no longer “active” and bonuses are forfeited. Numerous cases suggested that such policies were enforceable if clearly worded and brought to the employees’ attention when they were hired. However, the recent Ontario Court of Appeal case of Paquette v. TeraGo Networks Inc. represents a departure from those decisions. The Court ruled that merely making “active employment” a condition for bonus eligibility will not allow an employer to exclude bonuses from its severance obligations to employees who have been dismissed without cause.

Changing (or Litigating) Workplace Policy: The Requirement of Consideration

Matthew Tomm

Workplaces are dynamic and workplace policies must evolve. However, effectively amending a workplace policy so that it is enforceable in court is not as straightforward as one might think. Changes to company policies can affect employee rights, benefits, or entitlements. For those changes to become enforceable elements of employment contracts, employers may have to provide their employees with consideration. This often overlooked requirement can be a source of unanticipated, and preventable, difficulties.

When an employer is considering making a change to its workplace policy, a number of questions arise:

  • What types of policy changes require consideration to be given to existing employees?
  • What constitutes “good” consideration at law?
  • What can employers and employees do to protect their interests in the face of a change to company policy?

A review of these issues shows that altering workplace policies can create a host of dangers, but both employers and employees have options to manage risk and protect their rights.

A Contract by Any Other Name: Hole v Hole, 2016 ABCA 34 (CanLII)

Eleanor A. Carlson

It may be trite to state that contracts are essential to business relations. It is a common perception that the words in a contract are determinative in understanding the parties’ rights and obligations. However, the words in the contract are sometimes just the starting point. There are occasions where Courts examine surrounding circumstances and ancillary documents in interpreting contracts and determining the intention of the contracting parties. When and how is such collateral information assessed?

The Alberta Court of Appeal provided significant guidance in the recent case of Hole v. Hole, 2016 ABCA 34. At issue were amounts owed to the appellants resulting from their withdrawal from a family business. The appellants argued some of their rights were set out in a “Letter of Understanding”, which had been written prior to a written contract, which set out the remainder of their rights. The respondents argued the Letter of Understanding was superseded by the later contract. If the Letter of Understanding was deemed an enforceable contract the appellants would be owed an additional $1 million. At trial, the Court of Queen’s Bench ruled that the Letter of Understanding was not intended to create legal relations and was not an enforceable contract. The Court of Appeal considered the trial evidence of circumstances surrounding the creation of the two documents and overturned the trial judge’s decision.

Personal Injury Law Update: Dismissals for Long Delay (“Drop Dead Rule”)

Joseph Oppenheim & Eleanor A. Carlson

The Alberta Rules of Court require a plaintiff in a civil lawsuit to advance an action towards trial. If a plaintiff does not “significantly advance” the action for three years, the Court must dismiss the action for “long delay” on application by the defendant. This is colloquially known as the “drop dead rule”.

We advise and guide plaintiffs to move legal actions forward expeditiously so as not to be in a position of having to respond to delay applications. However, delays are sometimes unavoidable, as in, for example, serious personal injury matters where damages cannot be fully assessed until the injuries have healed or recovery has plateaued. In those circumstances, plaintiffs should pursue standstill agreements or court sanctioned litigation plans that account for delay. 

Update on State of Law on Physician-Assisted Death in Canada (May 30, 2016) (Canada (Attorney General) v. E.F., 2016 ABCA 155 (CanLII))

Brynna Hambly

The Supreme Court of Canada in Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII) (“Carter”) outlined a constitutional exemption to sections 241 and 14 of the Criminal Code of Canada, which made it illegal to assist a person in committing suicide. An earlier entry on this case can be found here. As expressed by the Court in Carter and summarized in Canada (Attorney General) v. E.F., 2016 ABCA 155 (CanLII), (“EF”) for an applicant to meet the constitutional exemption he or she must be: 

[14] …1) a competent adult who 2) clearly consents to the termination of life and 3) has a grievous and irremediable medical condition (including an illness, disease, or disability that 4) causes enduing suffering that is intolerable to the individual in the circumstances of his or her condition.

In Carter, the Supreme Court gave the federal government 12 months to implement a new legislative scheme that permitted physician assisted death. The Court later granted the government a further 4 month extension before the relevant provisions of the Criminal Code of Canada would be deemed invalid (which expires June 6, 2016) (see link here for that decision). 

Unilateral Changes to Employment Contracts

Lauren A. Barteluk

Your employer has laid off many of your colleagues; but not you. Instead, your employer informs you that it is cutting your pay, increasing your hours, or changing your job duties. What options do you have? 

As an employer, finances are tight. Can you reduce an employee’s salary? Can you require that your remaining employees take over the job duties of their terminated colleagues?

Where employers are contemplating making unilateral changes to terms of employment (including changes to workplace policies), numerous issues arise. What follows is a general overview of the law and the strategies that are often considered. This should not be mistaken for legal advice, as every case must be dealt with on its own unique facts and circumstances.

Update on Assisted Death

The Globe and Mail recently published a news article concerning a May 17th, 2016 ruling by the Alberta Court of Appeal regarding assisted death. The Court reportedly ruled against the Attorney General of Canada, who was advocating for a restrictive interpretation of the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General), [2015] 1 SCR 331.

The timing of the decision is important because the federal government is currently debating Bill C-14, which proposes legislation that restricts medically assisted dying beyond what the Supreme Court of Canada stated in Carter

We will continue to watch with interest. Stay tuned.

Risks of asking employees to sign employment agreements after accepting initial offers

Holland v. Inc., 2015 ONCA 762 (CanLII)

In Holland v., the Ontario Court of Appeal illustrated the risk of asking an employee to sign an employment contract months after accepting an offer of employment. Where the new contract purports to limit the employee's legal rights beyond what was outlined in the offer, without new consideration, the contract may be deemed unenforceable. 

Employees Behaving Badly: Just Cause Termination for Conduct Outside the Workplace

Brynna Hambly

Dismissing an employee with cause (where no notice or pay in lieu of notice is given) is rarely justified at law, particularly for conduct outside of work. However, there are circumstances where off-work behaviour can lead to a dismissal with just cause. As a general rule, if the conduct materially prejudices the employer’s reputation, or destroys the employee’s ability to do his or her job effectively, summary dismissal is more likely to be deemed just.

It is important that employers know that they bear the burden to prove just cause for dismissal on a balance of probabilities. It is therefore essential that investigations are properly conducted and evidence is appropriately collected and preserved prior to issuing a summary dismissal.

The following are some examples of circumstances in which Courts or Tribunals have deemed discipline or summary dismissal just.

The New Paradigm of Summary Judgment

Matthew Tomm

With Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada ushered in a new paradigm for the law of summary judgment. The case holds that summary judgment rules must be interpreted to promote timely and affordable access to civil justice. The Alberta courts have been quick to fall into step. Recent jurisprudence makes it clear that justices and masters are more willing than before to decide matters summarily. The message is, if the case can be disposed of fairly without trial, it will be.

Yet the post-Hryniak world of summary judgment is new territory, and that means uncertainty for litigants and counsel. At present the law remains unsettled, as courts and the bar work out the new parameters of the game.

This article explores one pressing question: How will courts treat evidence, particularly prima facie conflicting evidence, under the new paradigm? I will first outline how the test has changed post-Hryniak. Then I will discuss tensions within the jurisprudence with respect to evidence.

Navigating the Complexities of an Employment Termination

Lauren A. Barteluk

In the past few months, we have heard many stories of both large and small companies located in Alberta laying off substantial numbers of employees. In this uncertain environment, it is essential that both employees and employers alike understand the legal principles surrounding employment terminations. Failing to do so may mean that as an employer, you risk significant liability in the event any of your employees file a wrongful dismissal lawsuit. As an employee, it may mean giving up significant rights to which you are legally entitled.  

Physician-assisted suicide [Carter v. Canada (Attorney General), 2015 SCC 5]

Brynna Hambly

In its landmark decision issued in February 2015, the Supreme Court of Canada struck the Criminal Code provisions that make physician-assisted suicide (“PAD”) illegal. It suspended the effect of its ruling for twelve months. This decision essentially reversed its earlier decision in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), in which it upheld the blanket prohibition on PAD.

This case arose when Gloria Taylor, suffering from ALS, brought a constitutional challenge of the Criminal Code provisions prohibiting PAD. She wished to end her life on her terms, but feared that her family members would be prosecuted if they assisted her in committing suicide. She argued that the law infringed on her constitutional right to life, liberty, and security of the person and amounted to unequal treatment.

Court Of Appeal Clarifies the Application of Section 28 of the Personal Property Security Act

Bobby Randhawa

This action stems from a conditional sales contract between TD Auto Finance (Canada) Inc. (“TD Auto”) and Ahmed Salman for the purchase of a vehicle. TD Auto also registered a security interest on the vehicle in the personal property registry.

A few months after entering into the contract, Mr. Salman defaulted on his loan payments to TD Auto. Weeks after Mr. Salman default on the loan, the vehicle identification number (“VIN”) on the vehicle was fraudulently altered. The result was that anyone doing a search of the personal property registry for the fraudulent VIN would not get notice of TD Auto’s security interest.