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    • Month: August 2021

    Did You Sign On The Dotted Line?

    Before participating in an activity that could lead to injury or death, a person may be required to sign a waiver as a form of expressed consent to the risks that exist, due to the inherent nature of the activity. By signing on the dotted line, the waiver could prevent an injured person or their family from advancing a claim against those responsible for permitting/facilitating the activity. Phrases such as “payment of this is confirmation of agreement to the following terms of usage” may also be equivalent to signing on the dotted line and agreeing not to advance a claim for personal injuries suffered while participating in the activity.

    In Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70 (CanLII), the plaintiff joined the defendant’s gym on a one-year membership agreement. Upon joining, she was presented with a contract which contained an exclusion clause. The exclusion clause provided that:

    “The Member releases the Club… from any claim whatsoever hereafter arising by reason of the Member suffering disease, deterioration of health, illness, or aggravation of condition or of ill health as a result of participation in the programs, acceptance of advice or use of the facilities provided by the Club or any claim for personal injury sustained by the Member in, on or about the facilities of the Club and its related companies, including and without limitation any claims for personal injuries resulting from and/or arising out of the negligence of the Club…and acknowledges that he/she is using the said facilities at his/her own risk.”

    After signing the release, the Plaintiff was injured while participating in an exercise class operated by the defendant. During the exercise class, the plaintiff was instructed to step off the step to her right. The plaintiff stepped on a circular metal dumbbell immediately to her right which caused her to lose her balance and fall on her back. The plaintiff took the position that she did not have an opportunity to actually read the Agreement and that no one brought the exclusion of liability clause to her attention when she signed the Agreement. The defendant argued that the plaintiff was solely responsible for her injuries and that she was able to read and understand the Exclusion Clause. The defendant brought a motion for summary judgment against the plaintiff.

    The Court relied on Section 5(3) of the Occupiers’ Liability Act which required that a gym must take reasonable steps to bring the provisions of the waiver to the attention of the member when she signed the agreement. In the current case, the Court found that the document itself did not take reasonable steps to bring the exclusion clause to the member’s attention as the provision was on the reverse side of the Agreement under the general heading “Membership Agreement – Terms and Conditions” and in tightly printed “fine print”. There was no place on the agreement for the member to sign or initial the provision which would have demonstrated that the gym made reasonable efforts to bring the provision to the member’s attention. As such, the defendant could not rely on the exclusion clause contained in the membership agreement (although the waiver was set aside, the Court found that the plaintiff could not establish that the defendant was negligent in any manner and held that the defendant gym was not liable to the plaintiff).

    The walk away from this case is that a waiver is meant by at least one party to prevent someone from making a claim. The validity of the waiver will depend on the wording of the waiver applying to what happened and whether the waiver was properly brought to the attention of the person. There has to be an agreement or deemed agreement between the parties for the waiver to be binding.

    The validity of sporting events and ski hill waivers are much less obvious than gym contracts signed and initialed with a person allegedly explaining details of the waiver. More recently your ski hill ticket is purchased online. You have to tick off that you read the conditions under which the ticket is being sold. In the conditions, you have to agree to not make any claim against the hill or its employees even if an accident occurs as a result of the negligence of the hill. You get to the hill and there are usually some signs at the lift about riding the lift at your own risk and there are signs warning you will ski at your own risk. The back of the ticket you are wearing usually has a waiver written in small print. You didn’t necessarily sign on the dotted line and you didn’t have someone explain to you the details of the waiver. Despite this, waivers are typically binding on foreseeable and usual risks, but perhaps not where unexpected things happen that are outside of the norm.

    Your best bet if you or your family are involved in an accident and a waiver may be applicable is to consult with an experienced personal injury lawyer as soon as possible.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Personal Injury

    Get A Tax Refund On Your New or Substantially Renovated Home

    If you bought a new or substantially renovated home, you may be entitled to a tax refund.

    As a consumer, you pay 13% Harmonized Sales Tax (HST) on most goods and services in Ontario. HST is a hybrid sales tax consisting of both federal and provincial sales taxes. As of June 2010, HST is now also payable on all new home sales in Ontario. However, you may be entitled to a rebate.

    Am I eligible?

    You may be eligible if you bought, built, or substantially renovated an existing house.

    This could include residential condominium units, duplexes, mobile or modular homes, or floating homes. You may also be eligible if you built a major addition, or if you converted a non-residential property for residential use. You may also be eligible if you bought a share of the capital stock of a co-operative housing corporation (co-op).

    You may not need to live in this home yourself. You may be eligible if the home is to be occupied by a relation—however, there are particular rules about who qualifies.

    You are likely not eligible if you are in the business of manufacturing or reselling homes, or if you are a corporation or partnership.

    How much is the refund?

    The federal component of the HST rebate is available in every province. Certain provinces—including Ontario—also offer a rebate on the provincial component of the HST.

    The amount of your refund will vary based on the province in which you live, and the fair market value of your home. In Ontario, where the fair market value of your home falls within the following brackets, you may be entitled to the following rebate:

    • Below $350,000: the potential rebate is 36% of the federal tax, and 75% of the provincial tax.
    • From $350,001 to $449,999: the potential rebate is up to 35.9% of the federal tax on a sliding scale, and up to 75% of the provincial tax to a maximum of $24,000.
    • $450,000 and above: the potential rebate is $24,000.

    Is there a deadline?

    Yes! You have two years to apply.

    The date upon which the clock starts ticking depends on the nature of your situation, and the circumstances of your purchase or renovation. Double-check the rules and do not miss your chance to apply for your refund.

    How do I apply?

    For complete instructions, review the official Guide from the Canada Revenue Agency (CRA) on the GST/HST New Housing Rebate. (You can also download it in PDF).

    There are two separate rebates for the federal and provincial components. If you live in Ontario, be sure to apply for both rebates.

    Due to the COVID pandemic, it is possible that the CRA will be evaluating rebate applications with greater scrutiny. Be certain that you follow the rules and regulations in your application to ensure that you have the greatest chance of successfully claiming your rebate.

    For more information, assistance, or any other questions regarding new home purchases, renovations, or other real estate transactions, please contact our Toronto real estate lawyers today. Do not delay.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Real Estate, Tax

    Student’s Rights During Covid-19

    School systems in Ontario have seen challenges over the last several years regarding funding allocations and other additional issues that come along when discussing a large-scale academic school system like most school boards in Ontario. These issues are even more prevalent when discussing the massive Peel and Toronto Public and Catholic School systems. These challenges are now exemplified when discussing the additional funding and protocol now required by school boards to be compliant with government, and Minister of Education, Stephen Lecce’s regulations. Minister Lecce announced on August 3, 2021, via Twitter, that students will be #backtoclass full time in the fall (via @sflecce, Minister Lecce’s Twitter hashtag used to announce in-person learning). This plan includes additional mental and physical health support as well as restoring physical education, sports, and other important activities that are essential to Ontario’s youth development.

    Although Minister Lecce has a fantastic and exciting plan to bring Ontario Students back to school, questions regarding the pandemic and the fear of future Covid-19 outbreak waves have left parents with a significant amount of ambiguity regarding the idea of their children’s rights once they return to in-person learning at their respective schools in the fall. One of the most common and important questions that most parents are asking at this time is what rights do my children have in the school system?

    Does my child have to go back to school? Does the school have to accept them?

    If you are questioning if your child can be forced to stay home, the answer is yes. Ontario’s Health Protection and Promotion Act R.S.O 1990, Chapter H7 authorizes a Medical Officer of Health to order any person to refrain from school to prevent any spread of disease. Although before it was not possible to expel a student in grade 3 or below, in August of last year, the Ontario government gave school officials (not only Principals) the right to remove any student indefinitely if they believe the student poses any risk to the safety of anyone in the school.

    It’s important to note that even though the pandemic has often left parents in the dark,  children in Ontario school systems still have rights that can still be enforced by parents and guardians. Unfortunately for parents, there is no law stated in Ontario that a student has to attend the school closest to their home. This is why the province has the right to convert students to at-home learning, especially when discussing special needs or safety concerns.

    What about contracting COVID-19?

    If your child contracts Covid-19 while at school, schools are usually not liable for damages. In addition to that, it will be difficult to prove that a child did contract Covid-19 from the school itself, and not at any other places. Also, there will have to be negligence on the school’s behalf. Meaning that the school must fail to have done something that it is required to do pursuant to the Ministry of Education and Ontario School Boards’ Covid-19 protocols. If the school fulfills all the mandated recommendations and a child still contracts Covid-19, it will be very difficult for the court to find the school liable.

    If you still believe that your child is entitled to damages, then the child must have received some sort of permanent damage and prove that they received permanent damage from Covid-19 caused directly by the negligence of the school which breached Covid-19 protocol.  This may be difficult to prove in the immediate future.

    Staying home has its consequence too:

    Questions now are arising due to growing concerns of mental illness and delayed social development of children who are not in schools for in-person learning. It is important to note that not sending a child to school for in-person learning is not a zero harm option. There are additional implications that can come into play when a child is kept at home without contact with any classmates and does not experience a classroom and social environment.

    If you believe that your child’s rights are not being considered by their school board, or that you may be entitled to compensation for negligence by your child’s school, please contact Devry Smith Frank LLP Lawyer Katelyn Bell or call her at 416 446-5837 for assistance with this matter.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, COVID-19, Education Law

    An Update on COVID-19 Travel Restrictions

    As vaccination rates increase in Canada, and COVID-19 infection rates decline, the Canadian government is gradually relaxing its strict travel restrictions and quarantine requirements. Prior to this past July 6th, Canada’s borders were closed to all discretionary non-essential travel, with limited exceptions, and those who were permitted to enter were subject to a 14-day quarantine requirement, regardless of vaccination status, also with limited exceptions.  Those entering Canada by air were also subject to a 3-day stay in a government-authorized hotel.

    Effective July 6th, all individuals permitted to enter Canada for an essential non-discretionary purpose, or due to an exemption, who have evidence of being fully vaccinated, together with a negative PCR test obtained within 72 hours prior to coming to Canada and are asymptomatic, are exempt from the quarantine requirement, including the hotel stay. To be considered fully vaccinated, the traveler must have received the full series of a vaccine or a combination of vaccines that are accepted by the Canadian government, and the last vaccine must have been administered at least 14 days prior to entering Canada. Individuals who cannot be fully vaccinated due to a health condition may also qualify for the eased quarantine and testing requirements currently available to fully vaccinated travelers but must follow a modified quarantine.

    Commencing August 9th, United States permanent residents and citizens who are residing in the U.S. are allowed to enter Canada for non-essential discretionary travel. Thus, as of the date of this blog, U.S. citizens and permanent residents who are fully vaccinated may enter Canada for any purpose on a quarantine-exempt basis. Also, effective August 9th, all travelers to Canada by air, who remain subject to the quarantine requirement, will no longer be required to stay in a government-approved hotel, which requirement has been eliminated.

    All travelers, whether or not fully vaccinated, must provide COVID-19 related information electronically, prior to traveling, through the ArriveCAN app or web version, meet all pre-entry testing requirements, be asymptomatic upon arrival, and have a paper or digital copy of their vaccination documentation in English or French to present to government officials on request.

    Provided that Canada’s COVID-19 situation remains favourable, the Canadian government has announced its intention to open Canada’s borders for non-essential discretionary travel to all international travelers effective September 7th. At that time travelers to Canada from anywhere who are fully vaccinated and who meet specific entry requirements will be able to enter Canada freely.

    As a final note, the current rules governing entry into the U.S. are very different and non-reciprocal from Canada.  To summarize: anyone who has been in Canada for 14 days prior to travel by air to the U.S., has been able to do so throughout the pandemic without needing to demonstrate an essential non-discretionary purpose.  However, at the land border, the U.S. still requires an essential non-discretionary purpose for entry with limited exceptions, notwithstanding Canada’s new policy to admit U.S. citizens and permanent residents for any purpose, as described above. With respect to quarantine, the U.S. did not have any such requirement on the federal level throughout the pandemic, however, certain states imposed a quarantine requirement at different times.

    Should you require additional information about the current state of the law in Canada or the U.S., or upcoming changes, please contact the firm’s immigration group.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, COVID-19, Immigration

    Surveillance, Social Media, and Personal Injury Disputes

    The rapid technological advancements of our time can create implications when the laws surrounding their use are unclear or have yet to be addressed. Our judicial system is often left playing catch-up to legal questions surrounding technology and interaction with people’s rights and other issues of public policy. On the one hand, technology can greatly benefit people’s access to information, but on the other hand, it is important that people’s privacy is respected when such information becomes much more easily accessible by way of technological development.

    Our judicial and parliamentary system is always changing and enacting laws to help adequately address the delicate balance between these two competing interests. For this reason, it is a good idea to ensure you are always aware of how your information can be gathered and used against you in court. For example, the development of Google Earth cameras has raised the issue of invasive surveillance, and whether and how this surveillance can be used for evidence in a car accident lawsuit.

    Is Google Earth the next “Big Brother”?

    Of all the means by which our daily lives can be monitored, Google Earth is not at the top of this list. As it currently stands, evidence gathered by Google Earth cameras is not something to be concerned about; footage of the accident taken from these cameras is not often used in car accident cases. One of the reasons for this is because the pictures that are taken by a Google Earth camera are updated every one to three years.  This makes the chance of your appearance on Google Earth extremely unlikely. This is good news considering that the average Canadian is caught on camera an average of 70 times every day.

    If an image is captured by Google Earth, can it be used in Court? If so, how?

    There are still a small number of instances where footage taken by Google Earth cameras is used in court as evidence against opposing parties in personal injury disputes. They are used to supplement the otherwise commonly-used maps and 3D models to illustrate to a judge or jury about the true nature of the accident. Though its use is technically possible, it would mean that an image would have to be captured at the exact moment of your accident – a very unlikely occurrence.

    Are there other means by which a video of my car accident may be recorded?

    While there will not be footage of your accident taken by Google Earth, it does not mean that an image or footage of your accident does not exist. In fact, if the accident occurred in a major city, it is more likely than not that it was captured by some nearby street or building camera. Getting access to such footage before they are taped over is difficult and an immediate follow-up investigation would have to be done. This is not often seen other than when police authorities conduct this investigation due to a serious injury or fatality and possible criminal charges being laid.

    In personal injury disputes, your own social media presence will be immediately investigated for information about you and your lifestyle. For this reason, your lawyer will warn you about the dangers of being on social media and the impact that it can have on your case. Though you might think that a post is innocuous, opposing parties can be very creative in using that post against your claims. It is usually best to stay away from social media altogether during the duration of your case.

    In addition, it is recommended that you seek a lawyer’s services if you are involved in a personal injury dispute. This is perhaps the best way for you to protect yourself and your interests since the stakes in a serious car accident can be high. In addition, your lawyer can help you get the highest possible amount of compensation to which you are entitled.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Personal Injury

    Why The CAS Shouldn’t Be Dictating The Terms Of Your Access Order

    In child protection matters, the Children’s Aid Society (“the Society”), as a litigant, may start a court application against a parent if they believe that a child is in need of protection. The Society then asks the Court to make an order with respect to what intervention is necessary to protect the child(ren). For example, should the child be placed in the care of the parent or another person, subject to the supervision of the Society, or should the child be placed in interim or extended Society care?

    There has been a divide in the case law on whether an access order can be at the discretion of a Society. However, in J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 the Ontario Divisional Court confirmed that the authority to make an order with respect to access rests solely with the judiciary and cannot be delegated to a third party, including the Society.

    In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (CanLII), the mother appealed the decision of the trial judge, who ordered that her two young children be placed in extended Society care, with her access to the children being at the Society’s discretion and in accordance with the best interests of the children.

    The appellant mother appealed this decision and asked that her children be placed in her custody with Society supervision. In the alternative, she asked for specific access to both children if they were to remain in the care of the Society.

    In determining whether the trial judge erred in ordering that access be at the Society’s discretion, the court considered Sections 104 and 105 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), which mandates that it is the court that must determine what access is in a child’s best interests, not the Society.

    In order to determine the best interests of the child, the court analyzes the factors set out in Section 74(3) of the CYFSA which include considering the child’s views and wishes, relationship with parents, and physical, mental, and emotional needs. Having found that the access orders were made in favour of the appellant mother, the court turned to the question of whether a court could delegate all aspects of access, including all decisions about type, frequency, and duration to the Society. The court reviewed the arguments made in previous cases in support of and against delegating a child’s access at the discretion of a Society.

    In reviewing these cases, the court determined that discretion cannot simply be delegated solely to the Society or to anyone else. Case law relied on by the Society, such as H.(C.) v. Children’s Aid Society of Durham (County), 2003 CanLII 57951, was distinguished on the basis that it considered an appeal of a temporary order, whereas this case concerned a final decision.

    As Sections 104 and 105 of the CYFSA do not either explicitly or implicitly provide the court any powers to delegate its authority to make access orders, the court found that the trial judge erred in law by delegating the discretionary elements of access to being at the sole discretion of the Society. The appeal with respect to the terms of access was allowed and the matter was remitted to the trial judge to determine the appropriate process for finally determining the terms and conditions of access.

    Conclusion

    In making this finding, the court noted that it would be rare for legislation to authorize a court to delegate its judicial functions to any third party who is also a party to the litigation when neutrality and objectivity are essential to the decision-making process.

    The court’s decision is important in clarifying both the interpretation of Sections 104 and 105 of the CYFSA and the role of the court in making access orders. By distinguishing access orders made at temporary versus final hearings, different rules may apply for terms of access at the discretion of the Society depending on the type of order. For now, this decision helps to ensure that no party to the litigation, including the Society, will have sole discretion in defining access to children pursuant to a final order.

    If you have any questions related to your family law matter contact Collingwood lawyer Sarah Robus at sarah.robus@dsf.theleadshub.biz or 249-888-4642.

     “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Family Law