Wednesday, 18 April 2012

Living will or personal directive?

A living will is a term for what we in Alberta put in a "personal directive".  This document that gives the agent we choose the authority to make medical choices for us if we lose the ability to make those choices for ourselves.  The living will portion of the document can give detailed direction to the person that we choose on the medical care we do want, or do not want.  Many people do not want their life prolonged if they are not here mentally or there is no chance of a physical recovery.  It goes without saying that it is extremely important that the document reflect your personal wishes accurately.  To make a personal directive you need to be over 18 and you need mental capacity at time you sign the personal directive.  Personal directives have to be in writing, dated, signed and witnessed by someone who is not the agent, your spouse, common law partner, or the spouse or common law partner of your agent.

Wednesday, 4 April 2012

Privacy legislation allows you to sue a company for breaching your right to privacy, but what do you do when a person looks into your private affairs? The tort of "intrusion upon seclusion" was recently discussed in a case before the Ontario Court of Appeal where a bank employee repeatedly accessed the plaintiff's bank records. The Court held that the tort exists in Canadian law and will provide a remedy for breaches of privacy by individuals even if there is no pecuniary loss. See: Jones v. Tsige.
Although the Honda Canada Inc. v. Keays 2008 SCC 39 decision is not a recent decision at the time of posting this comment, it is a still an extremely important one.  Employment lawyers get asked all the time about aggravated damages and bad faith conduct by employers when employees are terminated.  The previous leading case, the Wallace decision of 1997, had  evolved over time.  The SCC revisited the principles and clarified that decision in the Honda decision.

The Court affirmed the long standing principles of what constitutes reasonable notice of termination, courts should consider the character of the lost employment, the employee's length of service, the age of the employee, and the availability of similar employment having regard to the experience, training and qualifications of the employee. 

Generally, damages are not available for the actual loss of a job or for pain and distress as a consequence of being terminated.  Nevertheless, damages resulting from the manner of dismissal will be available where the employer engages in conduct during the course of dismissal that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive".  These damnages should be awarded through an award that reflects actual damages rather than by extending the notice period. 

It went on to clarify aggravated and puntive damages in the employment law context.  Specifically, it stated that a breach of human right legislation caould constitute an actionable wrong leading to puntive damages.