Human Rights Case Involving Discriminatory Employment Conduct Nears End

• Uncategorized

The Court of Appeal of Alberta recently issued a judgment in a human rights case, Walsh v. Mobil Oil Canada, involving gender-based discrimination in employment. The legal dispute, which has resulted in several judgments of courts and a Tribunal over the past 22 years, is finally nearing its conclusion.

In its judgment, the court expressed full agreement with the lower court’s findings of discriminatory and retaliatory conduct by a large oil company against a female employee. In addition to ruling on the employment-related issues, the judges also indicated concern about the delays in the processing of the complaint by the Alberta Human Rights Commission.

Human rights complaint pits female employee against oil company

The female employee’s original human rights complaint in 1991 involved her allegation that the company was treating her differently because of her gender. The Court of Appeal’s case judgment indicates that she received several promotions and eventually achieved her objective of becoming a “land representative,” but states that she was treated differently than the men occupying the same position. The judges assert that “she was underpaid, under recognized and overly criticized as a result of gender bias.”

However, four years after receiving the employee’s discrimination complaint, the Alberta Human Rights Commission (known as the “Tribunal”) dismissed it. After the oil company terminated the woman’s employment, she filed another human rights complaint, alleging that the company had retaliated against her because of her original complaint. Ten years later, the Tribunal dismissed that complaint also.

Ultimately both the Alberta Court of Queen’s Bench and the Court of Appeal “vindicated” the female employee by overturning the Tribunal’s decisions. The issues before the Court of Appeal in the most recent judgment concerned the size of the former female employee’s monetary awards.

Parties in the case and legal observers frustrated by the tardiness of the legal process

A blog authored by the Faculty of Law at the University of Calgary expresses frustration at the slowness of the legal process in this matter. The author also comments negatively on the performance of the Alberta Human Rights Commission, calling the case “an extreme example of some of the criticisms of Alberta’s human rights system.”

Despite the recently concluded appeal to the Court of Appeal, the judges indicate that both parties in the case want the legal process to end. The only issues remaining involve legal costs.

This case illustrates – in an extreme fashion – the special difficulties presented by human rights complaints involving corporate conduct. Any company that is notified of such a complaint should engage counsel with extensive experience in the relevant area of law. This expertise can prove invaluable in the handling of cases stemming from human rights law.

What Effect Does Marriage Have on a Will and Inheritance?

• Uncategorized

Alberta law generally affords surviving spouses extra rights as beneficiaries

When a spouse passes away, the pain endured by a surviving spouse or common-law partner can be immense. The last thing on most surviving spouses’ minds is inheritance, but it is nonetheless important for spouses to understand what rights they have as beneficiaries. Alberta’s Wills and Succession Act (WSA) came into force three years ago and significantly strengthens the rights of surviving spouses as beneficiaries.

The WSA grants a surviving spouse who is not a registered owner of the matrimonial home possession of the home for a period of 90 days. This period can be shortened or lengthened upon application to the Court.

The WSA also contains provisions that allow a surviving spouse (in addition to other family members) to make an application for further maintenance and support if adequate provision is not made in the Will.

Divorce and ex-spouses

Changes from the WSA include the effects of divorce or marriage on a preexisting will. An important change under the WSA is that getting married does not revoke the pre-existing will.

Conversely, under the WSA, when certain conditions are met, divorce or separation from a common-law spouse revokes gifts made by the deceased to an ex-spouse if the individual dies without updating their will. It should be noted, however, that the WSA does not remove ex-spouses as beneficiaries from some insurance policies, financial accounts or investments.

These changes underscore the importance of updating your will when significant changes occur in your life, including marriage or divorce.

Dying without a will

An important concern for surviving spouses is when a husband or wife passes away without having a valid will (otherwise called “intestacy”).

Under the WSA, the surviving spouse receives the entire estate if the deceased leaves no descendants or if all surviving descendants are the children of both the deceased and the surviving spouse. If the deceased has descendants who are children from a previous relationship, then the surviving spouse receives either $150,000 or 50% of the estate, whichever amount is greater. The remainder of the estate is divided among the deceased’s descendants (ie: children, grandchildren, and great-grandchildren).

Help with wills and estate issues

Dealing with complicated and sensitive issues raised by an inheritance can be difficult for many people, especially for those who are grieving for the loss of a loved one. As experienced wills and estates lawyers, we can help surviving spouses and other potential beneficiaries understand their rights and thus provide guidance and expert advice during this otherwise difficult time.

Planning Ahead For Your Winter Vacation: Wills & Estates Edition

• Uncategorized

The air is chilly, the snow is falling, and Calgarians are planning their winter getaways.

Impending trips and plane rides are natural catalysts that get clients thinking about Estate Planning.

What is Estate Planning? Among other things, it includes preparing documents that set out your wishes in matters relating to health care and financial decisions, in the event you are unable to make decisions on your own, as well as your wishes regarding the distribution of your property when you pass away.

The Personal Directive (a document relating to your health care decisions) and the Enduring Power of Attorney (a document relating to your financial decisions) take effect while you are still alive but are unable to make your own decisions. If you are going to live abroad for a period of time and want to allow someone else to take care of your finances while you are away, you can also prepare an Immediate Power of Attorney, appointing your spouse, parents or siblings to pay your bills for the specific situations/periods of time set out in that document.

A Will sets out your final wishes relating to the distribution of your property, which is especially important if you have dependants (such as a spouse or minor children), want to make specific bequests, or own your own business and require succession planning. A Will ensures that your final wishes are spelled out and administered accordingly.

While Estate Planning documents are a good ‘to do’ on your vacation planning checklist, don’t wait until you’re counting the days to your departure – on top of all other vacation arrangements you’ll be making, you’ll be in a rush to get the documents in order and may miss some important ‘big picture’ planning. You’ll also be looking at increased legal costs for expediting your documents. Rather, set some time aside and go through the ‘what if’ questions with your spouse and other family members, without the pressure of a departure date looming.

Our Wills & Estates Questionnaires can help to serve as a springboard for discussions and our Wills & Estates Group can assist you with understanding the new Wills & Succession Act and the preparation of these documents. Contact our Wills & Estates Group for further information or to book an appointment to discuss your Estate Planning needs.

Arbitration in Construction Disputes

• Uncategorized

There is rarely a construction project that is free from some type of dispute, whether it is workmanship issues, deficiencies, delay claims or simply getting paid for the work that is done. Traditionally, when parties are unable to sort through these items, the recourse has been to the courts. While courts are good at resolving disputes generally and have all the tools at its disposal to move parties along to an eventual trial, the court process can also be cumbersome, time consuming and costly. Judges understand the law, but they don’t always understand the intricacies of a construction project or have the expertise and background to come to the best decision. For these reasons, parties involved in construction projects are resorting more and more to arbitration. Arbitration clauses are common in construction industry contracts (such as CCDC 2) and are often incorporated into sub-contracts through reference to the head contract.

Arbitration is essentially private court with the arbitrator being the decision maker instead of a judge. Arbitration can have many advantages. Given that the arbitration is between parties, it is more private in nature. There is no open court and company documents and pleadings are not made public as they are in the court process. Depending on how detailed the arbitration clause in the contract is the parties have a lot of flexibility in determining how the arbitration will run, what rules will apply and how the arbitrator will be appointed. The process is limited only by the overarching requirement that the parties must be treated fairly and have a fair opportunity to present their case. When a contract doesn’t specify the number of arbitrators, the default position is that there will be one arbitrator. The parties can select an arbitrator who has the requisite expertise in handling the issues of the dispute. If the parties cannot agree on an arbitrator there are also methods to have an arbitrator appointed.

The court process can have multiple steps and applications before something ever makes it to trial. In contrast, arbitrations are usually heard relatively quickly with timelines agreed to by the parties and set by the arbitrator. Since the parties pay the arbitrator directly, the arbitrator(s) will usually release their decision quickly. Arbitrators have virtually all the powers of a court and their decisions are binding on the parties. Once the decision is released, it can be filed at the Court and becomes a judgment that can be enforced in the regular fashion.

Like any dispute resolution method, arbitration can also have its downside, depending on the precise matter in dispute. The provincial court of Alberta now is able to manage disputes up to $50,000. If the likely dispute is under this amount, the provincial court may still be a more cost effective method of resolution. In addition, the court process makes it easier to involve 3^rd parties who may be liable but who may not be bound by an arbitration clause. Arbitration can also complicate builder’s liens issues or require that the lien action be stayed until the arbitration decision is reached.

In many construction disputes, arbitration is preferable to litigation. Generally, on large projects owners and general contractors have detailed dispute resolution clauses including mediation and arbitration. Sometimes as the chain of contracts moves down from contract to sub-contracts and sub-sub-contracts and suppliers those parties either do not have a contract at all or they have not turned their minds to the benefits of arbitration for resolving disputes. It behooves every party working on a construction project to turn their mind to how disputes will be resolved. Failure to do so can be costly or leave the balance of power in the hands of the party with the greater resources.

Should you wish to discuss how arbitration clauses can be of benefit to your contracts, lawyers at Walsh LLP have the expertise in drafting model dispute resolution clauses and can assist you should recourse to arbitration become necessary.

The Advantages of Incorporating Your Business

• Uncategorized

If you are a self-employed person operating your own small business or an independent contractor, there are many advantages of incorporation, including the following:

1. Limited Liability

The primary reason that self-employed individuals choose to incorporate their business is to limit their personal liability in connection with that business to their investment. By conducting business through a corporation, a distinct legal entity, individuals are able to separate their business assets, by way of shareholdings, from their personal assets.

2. Tax Optimization

Canadian tax legislation provides a small business deduction on the taxes payable on the first $500,000 of active business income earned in Canada of a Canadian controlled private corporation. If distribution of the income to shareholders is deferred, this deduction allows the corporation to retain a greater amount to invest back into the corporation. Income can also be distributed to family members in lower tax brackets as dividends resulting in tax savings for your family.

3. Succession Planning

As a corporation is a distinct legal entity, it has a perpetual existence. Therefore, rather than ceasing to exist when the shareholders become deceased, corporations continue. For this reason a corporation is a tool used for succession planning as a practical and seamless method of passing a business from one generation to the next or from one owner to another.

4. Raising Capital

Issuing shares to investors is a convenient way to raise money for your business while maintaining control of your corporation.

5. Credibility

Individuals and corporations often prefer to do business with corporations as there is a perception that corporations are more stable than other business entities.

If you are interested in learning more about incorporating your business, the Walsh LLP Business and Corporate Group is able to provide more information, ideas on how to best structure your corporation, and general advice on operating your business.

Which Privacy Law May Apply To Your Organisation?

• Uncategorized

Privacy is a complex area of the law with growing importance in the lives of Albertans. Determining which legislation applies to a particular organization can involve complex legal questions.

Many business organisations and small business owners are uncertain about what ‘privacy law’ involves and what they must do to comply with it. This confusion is not surprising, because there are four different privacy laws that apply in Alberta:

• The Personal Information Protection and Electronic Documents Act (PIPEDA);
• The Privacy Act;
• The Personal Information Protection Act (PIPA); and
• The Freedom of Information and Protection of Privacy Act (FOIPP).

Each of these privacy laws applies to a different category of organisations collecting or possessing information:

• PIPEDA applies to federally-regulated private organisations.
• PIPA applies to provincial private organisations.
• FOIPP applies to provincial government organisations. None of these statutes apply to private individuals gathering and using information for personal or domestic purposes.
• The Privacy Act applies to federal government organisations.

In general, private businesses are regulated by either PIPA or PIPEDA.

Both PIPA and PIPEDA regulate the collection, use, and disclosure of personal information about individuals. In most cases, the laws require consent from the person whose information is being gathered or used. In a business context, “personal information” often means information about customers or information about employees. However, these laws may govern other kinds of information, because they apply to other types of information used in connection with a business activity.

If you are unsure which law governs your business, and how those laws affect your business practices, Walsh LLP’s Business Law and Corporate Law group would be happy to assist you. If you have questions or concerns about your rights or obligations under privacy law, please contact us.

Walsh Law Helping Soup Sisters & Broth Brothers Calgary

• Uncategorized

On March 11, 2015, Walsh LLP participated in its very first Soup Sisters & Broth Brothers event!

Soup Sisters & Broth Brothers was founded in 2009 by Calgarian Sharon Hapton and makes over 10,000 servings of soup for women, children and youth each month across the country! Soup Sisters & Broth Brothers is making a tangible impact in Calgary, by providing soup made locally from fresh ingredients, to vital organizations in our city such as YWCA Mary Dover House, Servants Anonymous Society, Calgary Women’s Emergency Shelter, and Awo Taan.

We feel strongly about supporting, contributing, and investing into the community in which we live and do business.

On March 11, 2015, we rolled up our sleeves and peeled, chopped, seasoned and stirred up almost 160 servings of soup for women and children utilizing transitional housing services in our city. It was a great opportunity to learn more about the huge need for these services and in turn, the support these services require to help make Calgary a better place.

Enthusiastically from our team: See you out there, Calgary!

Walsh LLP Is Pleased To Assist As Official Legal Sponsor To Bill Comrie’s Southern Alta. Sports Equipment Bank Charity

• Uncategorized

On September 23, 2014, the Southern Alberta Sports Equipment Bank Society announced its launch in Calgary. Walsh LLP is pleased to have the opportunity to provide legal services to this deserving charity in Calgary.

The Sports Equipment Bank Society’s news release is available at http://www.comriessportsequipmentbank.org/#!Comries-Sports-Equipment-Bank-Launches-In-Calgary/c1xcf/1, which confirms its objective:

Comrie’s Sports Equipment Bank will help address a major hurdle that keeps many kids out of sports and that is the cost of equipment. The program, which has been months in the making and has involved a number of stakeholders, will provide head-to-toe hockey equipment for youth who qualify.

The model is based on a successful program in Edmonton called Sport Central, which has been operating for more than 20 years and assisted more than 8,600 children in 2013, with 60 per cent of those being hockey players.

One of the goals with Comrie’s Sports Equipment Bank will be to outfit kids for all types of sports. Right now, the focus will be on hockey but the program will move into other sports in the near future.

Thomas J. Walsh QC, CM, AOE, Founder Of Walsh Llp, Marks 60 Years Serving Albertans

• Uncategorized

On June 15, 2014, Walsh LLP celebrated Thomas J. Walsh’s 60th year of legal service. Walsh LLP, founded by Mr. Walsh, continues to provide the same exemplary service to clients, the legal profession, and to our community.

Highlights of Mr. Walsh’s career include founding the Calgary Parks Foundation, serving as a Bencher of the Law Society of Alberta and the President of both the National Canadian Bar Association and the Calgary Bar Association, and, most recently, serving as the Chair of the Calgary Airport Authority’s Board of Directors. In recognition of his achievements, he has been awarded the Queen’s Golden and Diamond Jubilee Medals, the Law Society of Alberta’s Distinguished Service Award, the Order of Canada, and the Alberta Order of Excellence, among other honours.

Walsh LLP is pleased to join Mr. Walsh’s many friends and family in celebrating this occasion. The firm congratulates Mr. Walsh on his accomplishments and thanks him for his inspiring example.

Walsh LLP Opens Okotoks Office

• Uncategorized

With a long standing commitment to excellence and integrity, Walsh LLP recognizes that it’s important that we are able to meet our clients’ needs, in the communities where they need us. Having been involved in the Okotoks community for over 50 years, Walsh LLP is excited to announce the opening of our Walsh LLP Okotoks office effective January 1, 2013.

We have many lawyers experienced in family law, real estate, litigation, employment and criminal and regulatory matters whom are also available to assist you in either our Okotoks or Calgary offices.

Our new Walsh LLP Okotoks office is located at 205, 15 McRae Street in Oldetown Okotoks, and appointments with any of our lawyers can be made in Okotoks by contacting Walsh LLP at 403-267-8400 or 800-304-3574 toll free.