Other Common Issues

Dated: September 2016

Please note that this is not legal advice. General information is provided here for informational purposes only and should not be relied on as a substitute for legal advice. The information below outlines *generalized answers to common questions students have about the law, and is provided here as a guide to get them to start thinking about how to avoid some common legal issues.

If you currently have a legal issues that needs to be dealt with, please seek professional help by making use of the free Legal Services provided by the Ryerson Students’ Union.

For ease of locating them, some topics are bolded, but it is generally recommended that all of the following content is read and considered by students.

My partner and I have lived together for X amount of time, what would our status be considered? What happens if we split?

Your status will depend on whether you are married or not, and on how long you have been living together.

To be legally married means to be married by a religious leader who is ordained, or going to city hall and getting a licence or being married by somebody else who is authorized to perform marriages.

If two people live together in a “conjugal relationship” – one where the two people share a home and a life – they may be subjected to the term “common law”.

These relationships are defined in the Family Law Act of Ontario, but please note that other areas of law may change the situation. For example, the Immigration Act provides that people can be common law so that one can sponsor another for permanent residency, but common law is defined differently in these two Acts.

For family law purposes, a conjugal relationship becomes common law if the couple lives together for at least 3 years or has a child together.

When a married couple decide to separate, they may choose to divide their property. In general, whatever one brought into a marriage, one may have a right to take back out. On the other hand, the wealth accrued during the marriage is equally divided, regardless of whose income it was, who worked or did not. Moreover, there may sometimes be a right of support, where the more economically dependent spouse may seek spousal support from the more economically strong spouse after separation.

In a common law separation, if a couple is living for 3 years or had a child together, a spouse becomes entitled to receive both child support and spousal support.

Importantly for common law couples, the division of property does not automatically arise upon their separation. Generally speaking, each common law spouse still owns everything that is under their own name. Common law couples do not have the automatic right to a share of property that a married spouse does on separation, and claims for property in these situations can often end up in court.

Another critical issue to consider in this context is what relates to the child or children. The two main concepts involved are custody and residency. Residency covers where the child lives and custody refers to who makes the important decisions in the child’s life.

A couple may have joint custody, whereby they make the important decisions together, or sole custody, where one spouse makes all the important decisions. Importantly, residency may be split up such that a child lives part time of full time with either spouse, even when one ends up with sole custody.

As a final note on this introduction to key issues, child support obligations currently arise for one spouse when the child or children live with the other spouse for at least 60% of the time.

Key Aspects of Landlord/Tenant Law

There are three general principles you should know about landlord-tenant law in Toronto:

(1) The first principle is to always follow the law, regardless of what the landlord says. It is very common for landlords to add additional rules and regulations of their own that are not required by landlord-tenant laws. Therefore, it is important tenants use tenant hotline (516) 921-9494 or google Toronto Tenants for all information before signing a lease they are skeptical about.

(2) The second principle is that tenants can always say no to the demands of the Landlords. Landlords are known for demanding many things that are not necessarily required by the law. It is important to remember that as a tenant you are paying money in exchange for a service.

(3) The third principle is that tenants are able to get their money back once they have given it to the landlord. But, this could involve some hassle. A tenant should generally not pay any money for a prospective place (ex: for damages when moving out, etc.) unless they are absolutely sure they owe it.

Common problems to watch out for:

People often mistakenly think that once you sign a one-year lease, you have to sign a new one in the same apartment. Tenants do not have to ever sign another lease again. The tenants have the right to say no to a new lease and go month to month.

When it comes to being evicted – a landlord cannot just throw a tenant out. They will have to go to court, get an order, and get the Sheriff, who will then enforce that order. The only way a tenant can get evicted in Ontario is by the Sherriff.

Neither the landlord, nor the lease can require tenants to provide post-dated checks or anything else that is not in line with the law. Landlords cannot charge tenants for damage deposits, pet deposits, smoking deposits and lots of other common demands. All deposits aside from a last month’s rent deposit and a key deposit are illegal in Ontario.

But you should note – tenants are not allowed to withhold rent without risking eviction. For example, if there is a big hole in the ceiling and you decide to withhold the rent until it is fixed, legally, you can get evicted for that. Tenants should call city inspectors at 311 to deal with repairs.

Finally, don’t worry much if you have already signed a bad lease – all provisions in leases that are illegal, are void in Ontario, but you still have a contract and that contract is still valid, except for provisions that are meaningless and illegal.

For example, “no pets allowed” is not a legal provision and same goes for “no overnight guests on the premises”. Tenants are allowed to have pets, overnight guests, and as many guests as they want for as long as they want, as long as they are not violating bylaws in the city. Tenants are allowed to sublet and are allowed to assign in Ontario. A tenant cannot be evicted for bringing in pets.

Importantly, a landlord may not be able to evict you, but they may or may not be able to end your contract together. To find more information on these code violations, evictions, other laws, and what a fair lease looks like, visit TorontoTenants.org.

What are my rights as an employee, and what if they are infringed?

The Employment Standards Act (ESA) promotes a minimum threshold for employment standards in Ontario and contains the answers to most employment law related questions. Importantly, you are always entitled to what is provided in the ESA, but the courts have generally been more lenient and often rule to provide greater benefits to employees than those minimum standards set out in the ESA.

Critically, the ESA only applies to employees. Employee status is determined through 3 tests, which include the control test, the integration test, and the organization test – which look at a multitude of factors (ex: how much control you have over your work behaviour, to what extent you work is vital to the organization, whether you can cancel a job at any time, and many more factors). You may want to take a careful look at your work to decide the likelihood that you would be classified as an employee before you determine whether the ESA applies to you. This is a good example of an area where it is always advisable to get professional legal assistance.

Currently, in Ontario the standard minimum wage is set at $11.40 an hour, but may vary depending on your position, and may increase in the next few years. You can find the rate that applies to you here: https://www.labour.gov.on.ca/english/es/pubs/guide/minwage.php

There are a large number of other guidelines and rules that employers are expected to follow, which includes but is not limited to:

A redirect pay period that sets out the standard for payment, such as bi-weekly or monthly should be established. The payments will be made in cash or via direct deposits, comprising of a pay stub with necessary information, such as earnings.

The maximum number of hours of work per day is 8 hours, amounting to a maximum of 48 hours per week. This can be bypassed with the approval of the Director of Employment Standards and the written agreement of the employee. If that happens, the maximum hours worked per week can then be up to 60 hours.

A shift that is at least 5 hours garners a standard break of 30 minutes either taken in full or divided into two 15 minute breaks.

Daily rest from the position must be upheld by ensuring that there is 11 consecutive hours free from work every day, and either 24 consecutive hours of rest per workweek, or 48 consecutive hours per every two workweeks.

Overtime can be provided through a 1.5 increase in the regular rate per day or if there is a written agreement the employee can accept time off instead (in lieu).

If working on a public holiday the employee is compensated the premium rate of public holiday pay. If the employee did not work on the day itself, they are entitled to that pay if their shift was right before or right after the public holiday.

If the employee has worked with the organization for 3 months or longer they are entitled to advance notice before being fired or pay instead of advance notice. But, exceptions are made when there is employee misconduct or willful neglect of duty.

To focus on the service industry: tip deductions are often a common practice. However, the employer is not allowed to collect or deduct such payment from the employee. An exception is if it was required by a court order, the law, or the administration of a tip rule. In addition, the employer is able to take a partial amount of the tip if they assisted in the duties that garnered the tip to be provided.

The employee is able to discuss their rights as outlined in the ESA with their employer without fear of sanction or termination. If an employee is penalized, the ESA can assist in gaining compensation or reinstatement.

Filing a claim: If you have been wronged, you may file a claim with the Ministry of Labour, or through email, by fax, or in person at select Service-Ontario centers.

Subleasing versus Subletting?

Subleasing, legally referred to as the licensee and licensor relationship, takes place when a third party forms a contractual relationship with the licensee. Ex: You rent a space from your landlord, and sign a contract with a third party to live in that space too. The landlord does not have the authority to deny a sublease, as they have not formed a contractual relationship with the third party. Subletting takes place when there is a vacant property which a third party occupies. The rights involved here may be different.

What is the difference between borrowing from an organization (ex: OSAP) vs. an individual?

The specific difference between a loan from a government organization and a loan from somebody else that is most often asked about relates to bankruptcy.

The normal rule of bankruptcy is that a debtor pays all of their creditors (those who loaned them money) proportionately, but if the debtor does not have any money at the end of the bankruptcy period, they are free.

However, the law treats government loans differently. After you’ve taken out a government loan (such as OSAP), even if you wait the 7 years after you have finished full-or part-time studies required to claim bankruptcy, you can only declare bankruptcy for all the loans except your OSAP loan. That being said, courts are still allowed to hear your plea and generally may be sympathetic.

The more general difference is that you may face some difficulty in creating a good loan contract with individuals if the legal work is not done properly. Here are just a few of the things you should consider:

Consider interest accruing on a loan before it is repaid. Ex: Your clever Uncle Bob and Aunt Helen decide to lend you money for university. They decide to charge you reasonable interest and if you default on your regular payments, they will increase the interest rate to make sure you make the regular payments. The first question you should ask before accepting a loan is, what is the reasonable interest that is going be charged? Uncle Bob may think it is 12%, while you may think it is 1%. It is prudent to think of these things in advance, even when dealing with a friend or family member. According to the Interest Act, if interest is chargeable and a set number is not decided between the parties, it will be set to 5% (called “default imposition”). Once a default imposition is set, you cannot charge more – even if you put in clauses in your contract saying you can charge more.

Another item people can overlook is due date. If there is no time stamp for when payment is due – a default assumption can kick in (depending on the type of loan).

Whether dealing with a business or an individual, it is always important to understand all these details before agreeing to take a loan. And, always get it in writing – especially the due dates for payments to avoid future conflict. If you can – consider everything: type of payment, time of payment, interest compounding monthly or yearly, etc. All of it.

What are the most common types of intellectual property protection? How do they apply to textbooks?

Copyright protects literary works. For example, textbooks, dramatic plays, musical works, and cinematography are all literary works. Even lines of code can be protected.

Trademarks are usually associated with a logo or brand image. For example, Coca-Cola, Starbucks' logo or internet addresses (Domain Names), which can only be used if it they are filed under the trademark.

Patents protect novel inventions. For example, a new methodology of using a camera or microphone. You can use “Google Patents” to browse through examples for free if you are curious. Some are very interesting or sometimes even funny.

Industrial Design is something that applies to a functional object like a chair. Things get pretty specific here. Using the chair as an example, the unique shape of the chair itself can be protected by patent while excluding chairs that have a flat back. The function of the unique shape becomes an industrial design.  

Trade Secrets on the other hand, protect things you don’t tell anyone about and that you therefore won’t find on Google Patents, like the secret sauce in the McDonald’s Big Mac, or the secret spices in KFC.

Getting copyright protection can be pretty easy. The second you write down something such as an email, book, or act in a play, you have a copyright to those particular things. But, something can only be copyrighted if it is “fixed” or recorded in that way. If you figure out an idea, and tell your friend not to tell anyone in an attempt to copyright it for example, it is not considered copyrighted. 

If a textbook is copyrighted, its publisher has the right to copy, sell and apply restrictions on that work. It is important to note that the author retains moral right too; the right to keep someone from changing the works.

Students have certain rights too, such as the user rights of fair dealing. For instance, if you copy a piece of work from the library physically, you are not allowed to copy the whole thing. That would not be fair dealing. The guideline is that you can copy about 10% of a textbook.

When it comes to the downloading of a book or textbook, it can only have been downloaded if you are actually entitled to do so or if your download is used for your own private study, research, education, parody or satire – but not for profit. The potential consequences for downloading a textbook when you are not entitled to do so can result in statutory penalties between $100- $5000.

One interesting issue about downloading things on the internet is that Copyright owners, sometimes cannot identify who you are if you download the work. But, they can let your internet service provider know and the ISP will send you an email threatening legal action and requesting your information. This works as a deterrent tactic – they will need a court order to find out exactly who you are if you do not respond. If you ever find yourself in this position, it is better to go to a lawyer first rather than responding. 

What should I know about fighting speeding tickets?

There are three broad types of offences in criminal law and unfortunately speeding is one of the hardest to challenge. Speeding is an “Absolute Liability” type of offense – if the officer who charged you can prove the essential elements of the offence beyond a reasonable doubt then you will usually be convicted.

There are still ways to fight it, and try to avoid conviction but here are a few factors on both sides of the issue to keep in mind:

Con:
- Hiring a lawyer or a paralegal is much easier than fighting it yourself but can sometimes be prohibitively expensive
- Going to court means that you have to take time off of school or work to be at the courthouse or drop of court documents during regular business hours
- Taking the ticket to court yourself can be intimidating when you do not understand your options and how to fight the ticket, while online research can be misleading
- Going to court to fight your ticket and losing means that you may get a smaller deal (discount on your fine or demerit points) than you would have if you went to court to make a deal with the prosecutor instead of fighting to avoid conviction altogether

Pro:
- A conviction can raise your insurance rates by as much as 15% on a first conviction (or even double it for repeat offenders) which affects your insurance rate for 3 years and can cost you substantially more than the money you save by making a plea deal with a prosecutor. Insurance companies have different numbers and policies on this though, so it is a good idea to check with yours
- Conviction can sometimes be used against an individual’s “good standing” report. This may hurt your chances of, for example, becoming a director of a company or for applying to a placement
- Even for absolute liability offences, some defences exist. For example, online research usually overlooks duress and other relevant circumstances (ex: something out of your control, or an emergency which forced your behaviour where your only reasonable alternative was to speed). On top of this, these charges are sometimes dismissed for evidentiary or procedural reasons
- The legal market is continuously innovating to provide cheaper and more effective solutions for these sorts of consumer problems. For example, a Ryerson affiliated company called “Legally Inc.” has developed a chatbot to help users learn their options when fighting a speeding ticket, and delivering the required legal documents for them
- Students who prepare themselves to fight a ticket can always change their minds and accept a plea from a prosecutor later to cut down on the fine or demerit points

As a general tip regarding speeding, if you get pulled over by an officer, be polite and cooperate. Officers are always thinking of officers’ safety, so you probably do not want to get out of the car unless instructed to do so.

Lastly, if you remember anything of this particular topic it should probably be that you should not be speeding.

Conclusion

Be sure to attend to the details of these issues. Dealing with them is always harder than the steps it takes to avoid them in the first place. Yet, every year plenty of students have one of these come up and bite them in the butt midway through the year (or worse, during exams). But, also know that the Ryerson Students’ Union is here to provide students with our free legal services should something serious come up.

We’ve got your back.

Date compiled: September 2016
Sourced from: Ryerson Law Network
Compiled & Written by: Pooja Ravindranath, Alana Bujeya, and Yuli Jadov.

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