Real Estate Services Act

Posted by Johannes Schenk on May 28th, 2008 — Posted in Professional Discipline

This case deals with a real estate agent discipline hearing and judicial review. The discipline committee and the appeal body, the Financial Services Tribunal, both made the error of relying on the old repealed statute that had formerly governed the issue at hand. An attempt was made to rectify the problem by re-considering the original hearing on terms of the new, and properly applicable, Real Estate Services Act.

The Judge hearing the judicial review ruled that this was not possible and that the original discipline committee hearing, was a nullity by virtue of the reliance on the repealed statute.

Bill 42: Don’t Put Your Money Where Your Mouth Is?

Posted by Johannes Schenk on May 16th, 2008 — Posted in Human Rights Law

Bill 42 has gotten a few of us a little worked up. See the offending language here. In Particular:

66 The following sections are added to Division 2:
Third party advertising limits

235.1 (1) In respect of a general election conducted in accordance with section 23 (2) of the Constitution Act, an individual or organization other than a candidate, registered political party or registered constituency association must not sponsor, directly or indirectly, election advertising during the period beginning 120 days before the campaign period and ending at the end of the campaign period

(a) such that the total value of that election advertising is greater than

(i) $3 000 in relation to a single electoral district, and

(ii) $150 000 overall, or

(b) in combination with one or more individuals or organizations, or both, such that the total value of the election advertising sponsored by those individuals and organizations is greater than

(i) $3 000 in relation to a single electoral district, and

(ii) $150 000 overall.

(2) In respect of a general election conducted other than in accordance with section 23 (2) of the Constitution Act, the limits under subsection (1) do not apply to the period beginning 120 days before campaign period, but do apply to the campaign period.

(3) In respect of a by-election, the limits under subsection (1) do not apply to the period beginning 120 days before campaign period, but the limits under subsection (1) (a) (i) and (b) (i) do apply to the campaign period.

(4) Section 204 applies to adjust the amounts under this section.
Penalties for exceeding third party advertising limit

235.2 (1) Unless relief is granted by a court under section 238, if a sponsor exceeds an election advertising limit, the sponsor

(a) is deregistered as a sponsor under Division 3 of this Part and is not entitled to be reregistered as a sponsor until after the next general election, and

(b) must pay to the chief electoral officer a penalty of 10 times the amount by which the value of the election advertising sponsored by the sponsor exceeds the limit.

(2) In the case of a sponsor that is an unincorporated organization, the members of the organization are jointly and severally liable to pay the penalty under subsection (1) (b).

(3) A penalty referred to in subsection (1) is effective as follows:

(a) if no application under section 238 is made in respect of the sponsor, at the end of the period for making such an application;

(b) if, on the final determination of an application under section 238, the court refuses to grant relief from the penalty, at the time of that determination.
Court order for relief from advertising limit

235.3 (1) A sponsor may apply to the Supreme Court in accordance with this section for relief from penalties under section 237.

(2) An application may be made only within 120 days after general voting day for the election in relation to which the election advertising limit was exceeded.

(3) The petition commencing an application must be served on the chief electoral officer within 7 days after it is filed and the chief electoral officer is a party to the application.

(4) On the hearing of an application, the court may

(a) grant relief from a penalty if the court considers that, in relation to the non-compliance, the sponsor acted in good faith, or

(b) refuse to grant relief.

I thought this was Canada?

Is it fair? Is it a constitutional infringement? Well I guess they got their opinion in advance. So did the waterboarding guys.

Do you ever read those ads anyway, before you get to the living section and the real estate section? Will this cause billboard advertisers heartache? What will I do for dart board targets?

Is there a real concern that voters are being coerced by people with way too much money to perpetuate their misguided opinions?

I suppose that the folks that don’t have money to advertise will now have a chance to get their face into it as much as the guys with the wheelbarrows of money for that kind of thing?

Whatever the problem that this legislation might cure, I don’t like it anymore than I like the dumb ads. I’d probably hold my breath and vote you out just on the basis of the above quoted sections. Oopsie, there goes my promotion.

I just had an idea. As law abiding as any lawyer can be I’m going to let people advertise on my website for free. I suppose there are other ways of testing this law. Nudge, nudge, wink, wink.

Wage Law

Posted by Johannes Schenk on May 10th, 2008 — Posted in Employment Law, Human Rights Law, Labour Law

See this employment law blog: Wage Law


Posted by Johannes Schenk on May 9th, 2008 — Posted in Municipal Law

Check out the IMLA Blog.

They Loves Me Just the Way I am

Posted by Johannes Schenk on May 9th, 2008 — Posted in Employment Law, Labour Law

Where the employer purports to change a provision in an employment contract and the employee rejects the change, the employer acquiesces in the employee’s refusal if the employment relationship continues on the original terms. The case at hand involved the employer’s purported reduction in a termination period provision. See Wronko v. Western Inventory Service Ltd., 2008 ONCA 327.

Justice Winkler says:

[40] Having been made aware of Wronko’s opposition to the new contract in September 2002 and his continued opposition thereafter, Western had two choices: it could advise Wronko that his refusal to accept the new contract would result in his termination and that re-employment would be offered on the new terms. If Western were to take this position, the termination provision in the December 2000 contract would be triggered. Alternatively, Western could accept that there would be no new agreement and that Wronko’s employment would continue on the existing terms. Having failed to choose the former course, Western must be taken to have acquiesced to Wronko’s position and to have accepted that the terms of the existing contract remained in effect. Western’s decision to terminate Wronko in September 2004 thus carried with it the consequence that Wronko was entitled to two years termination pay pursuant to the terms of his existing employment contract.

The Court really seems to be saying that if you are going to insist on a change in a contract implement it now and take the consequences. Don’t sit back in the weeds to see how the situation plays out.

The Wallace damages discussion in the case seems to take a harder line than the current vogue away from awarding such damages:

[51] In Wallace v. United Grain Growers Ltd., [1997] 3. S.C.R. 701 at para. 95, Iacobucci J. wrote: The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal. These legal protections are of little value to an employee who seeks to assert his rights in court, but is faced with an employer who engages in hardball tactics in the course of litigation. To ensure that employees have access to the justice system, the courts must renounce an employer’s use of such tactics. One way to do this is through costs sanctions.

The test doesn’t seem to be any specific bad faith argument. Instead the Court relies on a generally aggressive position taken by the employer. Good on the Ontario Court for that. You don’t see that in the BC Courts these days.