Sunday, September 10, 2023

BOSSES LAWYER
Howard Levitt: The CRA has closed a loophole that will transform severance settlements

Wrongful dismissal cases in Canada have just become more difficult to settle

Author of the article:Howard Levitt
Published Sep 08, 2023 
The Canada Revenue Agency headquarters' Connaught Building in Ottawa. 
PHOTO BY SEAN KILPATRICK/THE CANADIAN PRESS FILES

There is a dirty little secret as to how employment law cases get settled. But it is coming to an end — this column will hasten its demise.


THIS IS A SLANDER AGAINST LABOUR UNIONS AND LABOUR LAWYERS
Employee lawyers constantly make vicious claims on behalf of their clients
about age discrimination, racial discrimination, fraudulent practices, toxic work environments — even worse. And they, and their clients, seldom believe a word of it.

It often boomerangs because the employer is so offended that they choose to defend the case at all costs rather than pay the employee anything. Or, as some put it to me, I would rather spend money on you than on this employee who has said all of these horrible untruths.

Not only do such allegations often make cases difficult to settle but they create financial and reputational risk for the employee. The employee will never receive a reference after that. And when I act for an employer that receives such allegations in a statement of claim, I pivot to transforming the case into one which focuses on the allegations and their palpable untruth. The employee’s credibility is shattered in all aspects of the case. I also ask for costs at the end, both because the employee will lose that (time-consuming) portion of the case and because, as I argue, the court should make an award which provides a disincentive to calumnious allegations that take up court time

So, with all these risks, why do lawyers do it?

They do it because such allegations attract punitive or other damages that are not taxable. And they are hoping to not have to actually prove any of this nonsense but to settle the case with an allocation to general (i.e. non-taxable) damages.

It is good for the employer too since it permits it to pay less in severance pay while providing the employee the same net return. For example, if someone is at the highest tax bracket, a payment of $50,000 in general damages is worth over $100,000 to them in severance pay so the employer saves monies in the settlement by providing some of the monies as general damages.

What employers invariably ask, in return for agreeing to pay these non-taxable amounts, is to be indemnified by the employee in the unlikely event that the Canada Revenue Agency actually audits and finds that this non-taxable payment was not bona fide and was really disguised severance rather than a payment for human rights abuses or toxic treatment.

In other words, if the CRA comes back at them for the tax they should have withheld, the indemnity requires the employee to reimburse them. Since more than 95 per cent of the time such a payment is not bona fide, the employer always insists on such an indemnity. But I have yet to hear of a case where this indemnity was ever called on, in the thousands of such cases in which I have been involved, because the CRA simply would not catch it through any normal audit procedure.

As of June 22, if such an indemnity is provided in return for a non-taxable payment as part of a severance agreement, the employer and employee must separately disclose, in a RC312, this settlement to the CRA within 90 days, along with a detailed description of the parties, the facts and the tax consequences. Failure to comply will result in substantial monetary fines as well as the likelihood of the tax benefit being disallowed. If not reported in a timely fashion, the CRA has the ability to reassess the taxpayer for a three or four-year period, depending on the type of taxpayer.

Needless to say, if most of these general damage transactions are reported so that the CRA scrutinizes them, they will be disallowed. As a result, few employers are going to participate in what has been pretty close to a tax fraud, albeit practiced with abandon in the employment bar.

$1.5M punitive damages award in disability case sets new record

Why workplace sexual assault remains a scourge

1) Either employers will only pay non-taxable damages as severance if they truly believe there is an overwhelming legal basis for it, something that would eliminate 95 per cent of such payments. In which case an indemnity was unnecessary anyway; or

2) Employers, to obtain the advantage of paying non-taxable general damages to make their severance settlements, will not ask for an indemnity agreement and take the chance that the CRA will not spot it, or, if it does, will assess it against the primary taxpayer, the employee, who they will hope has the resources to pay the extra money.

Wrongful dismissal cases in Canada have just become more difficult to settle.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.
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 WINNIPEG

UNION BUSTING

Curtains for Celebrations Dinner Theatre

Winnipeg Sun
Published Sep 08, 2023  • 
Celebrations Dinner Theatre closes
Celebrations Dinner Theatre in Winnipeg. In midst of a strike action, Celebrations Dinner Theatre announced Friday, Sept. 8, 2023, that after 25 years it is closing its doors permanently, citing financial pressures. It's ad cast and box office staff had been on the picket line since Tuesday. 

PHOTO BY GLEN DAWKINS /Winnipeg Sun

In midst of a strike action, Celebrations Dinner Theatre announced Friday that after 25 years it is closing its doors permanently, citing financial pressures.

In a statement, the union representing its striking workers which have been on the picket line since Tuesday said Bob Cunningham, the owner of Act Three Entertainment Inc., notified the union Friday afternoon that Celebrations was choosing to close its doors permanently and that the union’s members were notified that they have been terminated, effective immediately.

The members really believed in their work at Celebrations, they even paid out of pocket for their own costumes and they were hopeful that the company would recognize their dedication in return,” said Jeff Traeger, President of UFCW Local 832. “It’s shameful that the business model for Celebrations didn’t account for paying employees a fair wage or offering them any benefits, and the employer chose to close their doors instead of treating their employees with the respect they deserve.”

As with many workers, inflation and economic conditions have made it difficult for the workers to make ends meet, the union said, and they chose to wait three years for the business to find its footing after the pandemic. The business was fully operational and busier than ever when the union and Celebrations began bargaining earlier this year. Despite that, Celebrations refused to provide more than minimum wage and its workers voted unanimously in favour of strike action.

UFCW 832 represents 33 members who work for Celebration Dinner Theatre in ad cast and box office. The Union has ensured that all members are aware of the employer’s decision, and will be helping them with career transition and employment insurance in the days ahead. Their picket line closed up on Friday evening.

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Toronto

How 2 developers got the Greenbelt land they wanted

2 wealthy land development firms had long been eyeing Greenbelt, ethics watchdog found

Liam Casey · The Canadian Press · 
Premier Doug Ford holds a press conference following the announcement of a cabinet shuffle, at Queens Park in Toronto on Sept. 5, 2023.
Ontario Premier Doug Ford maintained for years that his government would not open Greenbelt land to development, but shifted gears after winning a second majority in 2022. (Evan Mitsui/CBC)

While no one explicitly told developers that Ontario planned to open up the protected Greenbelt for housing last year, the government telegraphed that message to builders through actions — and silence, the province's integrity commissioner found.

Central to that indirect communication was a conference where certain developers had access to the housing minister's chief of staff — two investigations found those builders ended up with 92 per cent of the sites taken out of the Greenbelt.

What took place at that conference, and some of what followed, is laid out in the report issued last week by commissioner J. David Wake, offering insight into the world of Ontario's developers and how they interact with the government.

"Communication ... can take many forms. It is not confined to the spoken word," Wake wrote in the report that described the housing minister's chief-of-staff, Ryan Amato, receiving packages from developers and later seeking further information.

"I find that these actions were tantamount to Mr. Amato saying the words he had been careful not to say."

Wake found that then-housing minister Steve Clark violated ethics rules during the province's process of removing 15 sites from the Greenbelt to build 50,000 homes and adding land to the protected area elsewhere. Clark resigned days after the report while Amato resigned in mid-August, but denied wrongdoing.

Wake's investigation featured interviews with two prominent developers, Silvio De Gasperis and Michael Rice — neither responded to a request for comment from The Canadian Press. Amato's lawyer also did not respond to a request for comment.

Highway 413 signalled shift in Greenbelt policy

De Gasperis, the CEO of TACC Group of Companies, had for decades wanted to develop homes on one of his properties — known as Cherrywood — but it was in the Greenbelt, Wake wrote.

De Gasperis owned the land in the Duffins Rouge Agricultural Preserve in Pickering, Ont., even prior to the creation of the Greenbelt in 2005 and felt it had improperly been made part of the protected area. He took the province to court over the designation, but ultimately lost.

The developer brought up the property with Premier Doug Ford after the Progressive Conservatives won the June 2018 election, "telling him Cherrywood is the perfect land for housing."

Ford told De Gasperis he couldn't do it.

The premier did not touch the Greenbelt in his first term — he initially told developers in February 2018 that he planned to open up the area but backtracked during the election campaign.

De Gasperis nonetheless took note of the Progressive Conservatives' pledge to build Highway 413 north of Toronto, a route running through Greenbelt land.

"This suggested to him there might be an opportunity to revisit the government's Greenbelt policy," Wake wrote.

When Ford won the 2022 election, De Gasperis set his sights on Amato, Clark's chief of staff.

An aerial view of a small hamlet and surrounding green fields.
The hamlet of Cherrywood, located in Pickering, Ont., inside the Duffins Rouge Agricultural Preserve, on land that was removed from the Greenbelt last December. Tacc Developments is working on plans for a subdivision south of here that would include a minimum of 1,200 housing units. (Evan Mitsui/CBC)

Package was exchanged at industry dinner

The opportunity to speak with Amato came on Sept. 14, 2022, at a dinner at the Building Industry and Land Development conference.

De Gasperis was seated at the same table as Amato and came armed with a package that his daughter, the director of planning for TACC Developments, put together to make the case for Cherrywood.

"I have a package I want you to take a look at — there was an injustice done at Cherrywood and I want you to take a look," De Gasparis said to Amato.

He handed over the envelope and told Amato to reach out to his daughter with questions. Amato said he would take a look.

Cherrywood, barren of houses, was the "biggest disappointment in his career," De Gasperis told Wake.

De Gasperis' daughter told the integrity commissioner she did not see an opportunity to raise Greenbelt removal requests with the province until the 2022 election, when she noticed Ford did not renew his commitment to not touch the area.

"From that silence, she saw an opening that it might be reconsidering that position," Wake wrote.

In early October, Amato called Alana De Gasperis seeking more information. She asked if Cherrywood would be removed from the Greenbelt.

"The government is looking at everything at this moment and have not made any decisions," Amato told her.

She then asked if he could look at other properties.

"He didn't say yes, he didn't say no," she told the integrity commissioner.

She took that opportunity to tell Amato about three other sites: one in Richmond Hill, Ont., another in Vaughan, Ont., and one in Hamilton that TACC co-owned with a friend of her father's.

She heard little from Amato until Nov. 3, 2022, when he called her to deliver good news: those four parcels of land were coming out of the Greenbelt.

A man speaks behind a podium at a press conference.
Former housing minister Steve Clark resigned the post on Labour Day, in the wake of the integrity commissioner's report. (Alex Lupul/CBC)

Another prominent developer gets land removed

Michael Rice, another prominent land developer, was also at the same developers' dinner where Silvio De Gasperis had handed his Cherrywood package to Amato.

Rice told the integrity commissioner he thought it was likely the Greenbelt would be opened up, particularly after the government passed legislation giving the housing minister power to decide growth areas and reducing the role of conservation authorities.

"If, by 2022, a developer was not thinking about the Greenbelt opening up, 'they were asleep,"' Rice, who leads the Rice Group of Companies, told Wake.

In December 2021, Rice had staff identify Greenbelt lands he could purchase and, by May 2022, he entered into an agreement to buy a 687-acre property in King Township, Ont., with partners for $80 million.

That deal closed on Sept. 15, 2022, the day after the dinner where Rice spoke briefly with Amato.

"If you guys are looking at the Greenbelt lands, I have something great that is the site you need to look at," Rice had told Amato, according to Wake.

A few days later, Amato called Rice seeking more information. Amato then came to Rice's office to pick up an information package at the end of September.

Amato's visit told Rice "they were looking at the Greenbelt," the developer told Wake.

A little more than a month later that land would no longer be in the Greenbelt.

Days after Wake's report, Ford announced a review of all Greenbelt lands. The new housing minister has said that process could see sites added or removed to the area.

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Saturday, September 09, 2023

 

Urban development 'nibbling' away at Metro Vancouver's sensitive ecosystems: report

Metro Vancouver's urban core is losing hundreds of hectares of sensitive ecosystems annually as regional planners attempt to increase protected lands by 25 per cent, by 2050.

Graeme Wood
about 12 hours ago
burns bog, delta, bc
Burns Bog in Delta.Sandor Gyarmati/Delta Optimist

Metro Vancouver continues to lose hundreds of hectares of sensitive ecosystems per each year while simultaneously seeking to increase the amount of protected land by 2050, a new report to the regional government’s board of directors shows.

Metro Vancouver senior planner Laurie Bates-Frymel reported that the region, from Lions Bay and eastward to Maple Ridge and Langley, contains 176,429 hectares of “sensitive and modified” ecosystem, which largely includes the North Shore’s forests and the Fraser River estuary, including Boundary Bay and Roberts Bank.

Since 2009 the region has lost 2,500 hectares, 1,800 of which came within the urban core, which only accounts for 33,554 hectares, comprising largely of grasslands, streams and large parks — such as Burns Bog, the UBC Endowment Lands and Stanley Park — intertwined with human infrastructure.

“The speed and scale of this ongoing loss is concerning for many reasons,” including loss of flood protection, carbon storage, urban heat mitigation and mental and physical health benefits, said Bates-Frymel.

The losses, however, do appear to be abating, said Bates-Frymel.

The region lost just 900 hectares between 2014 and 2020, whereas it lost 1,600 between 2009 and 2014 — just over the size of New Westminster.

“That’s good news. We’re slowing down the loss of ecosystems,” said Bates-Frymel.

More recently, the region lost 700 hectares of forest, 400 hectares of which were in the urban core.

“The nature of ecosystem loss observed over the last five years ranges widely, from the clearing of large, high-quality ecosystems, to small, disturbed remnant patches,” Bates-Frymel’s report states.

“Even smaller losses, or nibbling, can add up to large losses over the long-term,” Bates-Frymel told the board.

There are many causes of ecosystem loss, she noted: 34 per cent to logging; 23 per cent to agriculture; 16 per cent residential development; 10 per cent mowing and clearing; and six per cent industrial development, most notably.

“There’s definitely trade-offs,” said Bates-Frymel, noting the most permanent losses are via human development, as agriculture and cleared forests can often return back to a sensitive ecosystem.

While these lands are being lost, Metro Vancouver is aiming to increase the amount of permanently protected sensitive ecosystems, from 40 per cent of the land mass to 50 per cent by 2050.

Bates-Frymel said the process involves park acquisition by Metro Vancouver, municipalities, First Nations and the provincial government; but also conservation groups and private citizens.

Bates-Frymel’s report titled Sensitive Ecosystem Inventory Update 2014-2020 Change Summary was received unanimously by the board on Sep. 7.

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ONTARIO

Hundreds of Peel Region education workers terminated days before school year start, union says

By Hannah Jackson  Global News
Posted September 9, 2023 
The Peel District School Board said many terminated workers were not in compliance with conditions for employment.View image in full screen
The Peel District School Board said many terminated workers were not in compliance with conditions for employment. Global News

Almost 500 education workers, including educational assistants, were terminated by the Peel District School Board late last week, the union representing the workers says.

In an email to Global News late Friday evening, Melody Hurtusbie, president of the Ontario Public Service Employees Union (OPSEU) Local 2100, said over 300 educational assistants and over 100 early childhood educators were terminated last week.

According to Hurtusbie, the terminated employees were notified at 5:45 p.m. on Sept. 1, before the Labour Day long weekend.

“These actions wreaked havoc on my members, causing uncertainly and anxiety,” she said. “I heard from many of them saying that they had picked up long-term occasional jobs beginning on the first day of the school year and were now unsure if they were permitted to work.”

In a statement emailed to Global News on Friday, the PDSB said that during the COVID-19 pandemic it offered “flexibility to casual EAs, by way of extending the number of days required to work, beyond the collective agreement requirements.”

“Such was done recognizing the shifting landcape during the height of the global COVID-19 pandemic,” the statement said.

The board said, however, in the “present context” schools have returned to in-person learning, adding that “all school boards have been impacted by high absenteeism rates.”

According to the board, it discovered some EAs on the casual list who had not worked for the PDSB at all, had not met the minimum working days requirement in the collective agreement, or who were “non-compliant” with the annual obligation to disclose their criminal background.

“Given the increase in operational requirement to cover absences, staff who did not meet their obligations in the three categories above, in particular those who had not worked for the school board at all were removed from the list,” the statement said.

Under the collective agreement, casual employees are required to work at least 40 days, while retirees must work at least 20.

However, Hurtusbie said the union requested a moratoruim on the article in the collective agreement regarding the work-day requirements, saying schools are “short staffed and have low absence fill rates and need as many casual staff as possible.”

“We are already short staffed and with additional budget cuts and funding shortages it has created a crisis of understaffing,” Hurtusbie said in the email.

She said even without the casual staff, “there aren’t enough EAs to support the students in schools.”

However, the board said it has “incrementally increased” its hiring efforts to be year-round and said it has added “approximately 500 EAs to the casual list since the last school year.”

What’s more, the Ministry of Education said the PDSB reported around 2,260 full-time equivalent EAs for the 2023-2024 year, and the addition of 500 EAs to the list since last year.

The ministry also said the school board is projected to receive over $1.8 billion in base funding through the Grants for Student Needs (GSN) for the new school year, which includes an increase of over $32 million since 2023-24, as well as $227 million through the special education funding.

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Surprise: Donald Trump’s Border Wall That Mexico Never Paid for Caused “Irreparable Harm” to the Environment, Endangered Species, and Cultural Sites

An “entire mountainside” is said to be in danger of collapse thanks to construction done during the Trump administration.

BESS LEVIN
VANITY FAIR
SEPTEMBER 8, 2023

JOSHUA ROBERTS/GETTY IMAGES

Remember Donald Trump’s Mexico border wall that he made the centerpiece of his 2016 campaign, caused the longest government shutdown in US history, and that he—to this day—continues to lie about? In a development that should surprise exactly no one, it turns out that that wall—or, y’know, the parts of it that were actually built—has caused major damage to basically everything it’s touched.

According to a new report released by the Government Accountability Office this week, the roughly 450 miles of wall that went up during the Trump administration harmed everything from water to endangered species to Native American cultural sites. Monument Hill, for example, a memorial in Arizona used for religious ceremonies that remains important to a number of Indigenous communities, was “irreparably damaged when contractors used explosives to clear the way for expanding an existing patrol road.” Similarly, Tohono O’odham Nation officials reported to the GAO that a sacred burial site near Quitobaquito Springs was destroyed when contractors cleared a large area there.

Elsewhere, the report notes that:

Construction disrupted water flows, and in turn, exacerbated flooding.

The clearing of land for the wall “damaged native vegetation.”

Clearing land without reseeding it “allowed invasive species to take root.”

As a result of the construction work, some ponds in the San Bernardino National Wildlife Refuge in Arizona “are now void of water, which makes it difficult to maintain water levels in other ponds that have threatened and endangered fish species.”

“The barrier system has…substantially elevated the risks of the ocelot’s extinction in the US.”

A large construction staging area erected in the Pajarito Mountains in Arizona caused silt to drain “down the side of the mountain and, according to Forest Service officials, is beginning to fill a human-made pond, threatening to eliminate it as a drinking source for cattle and wildlife. Moreover, the entire mountainside is in danger of collapse, according to a Forest Service official.”

In a statement shared by Politico, Representative Raúl Grijalva, who requested the report, said, “This racist political stunt has been an ineffective waste of billions of American taxpayers’ dollars—and now we know it has caused immeasurable, irreparable harm to our environment and cultural heritage as well.”

In related news, Republicans have added funding to expand Trump’s wall to their list of spending demands, with some GOP reps suggesting they would shut down the government if they don’t get it.

 

US border wall construction damaged Native burial site: Government report

New report has found that efforts to expedite construction came at expense of sensitive ecosystems, Indigenous sites.


A section of border wall in the US state of Arizona [Al Jazeera via Center for Biological Diversity]
By Brian Osgood
Published On 8 Sep 2023

Barrier construction along the United States’ southern border has damaged sensitive ecosystems, public lands and Indigenous cultural sites, a report by a nonpartisan government research agency has found.

Released to the public on Thursday, the 72-page report marks the first independent effort from the Government Accountability Office (GAO) to assess the destruction caused by building the border wall.

It describes government contractors “blasting” a sacred Indigenous burial with explosives and leaving a mountainside “in danger of collapse”, among other incidents of harm.

The report focuses on a period from 2017 through January 2021, during the administration of former President Donald Trump. While the document never mentions Trump by name, it explains that federal authorities at the time relied on national security provisions to bypass existing protections.

“Federal agencies built about 450 miles [724 kilometres] of barriers along the US southwest border. To expedite construction, they waived federal environmental and other laws,” the GAO said in its summary.

“The construction harmed some cultural and natural resources, for example, by blasting at a tribal burial site and altering water flows.”

The report is the most comprehensive study yet of the border wall’s adverse impacts. It comes as immigration remains a flashpoint in US politics, particularly with the 2024 presidential election on the horizon.

“This report lays bare the damage the wall has inflicted on wildlife, public lands, and Indigenous cultural sites,” Laiken Jordahl, a southwest conservation advocate with the Center for Biological Diversity, told Al Jazeera.

“This report by a nonpartisan, fact-based agency confirms what we have been raising alarm over for years.”

Trump made the promise of an imposing wall on the US-Mexico border a centrepiece of his 2016 presidential campaign, which frequently leaned into anti-immigrant rhetoric and portrayed migrants as sources of crime and violence.

Chants of “Build the wall” became a staple of Trump’s campaign rallies.

Those cries are part of a growing international trend. Over the last two decades, the number of border barriers has been on the rise, with countries like the Dominican Republic, Poland and India taking steps to erect or complete fences and walls.

The Migration Policy Institute estimates that, as of 2022, 74 border barriers existed across the globe, compared with less than a dozen at the end of the Cold War.

However, the GAO report suggests steep consequences for environmental and cultural resources if construction is not evaluated beforehand.

“Before building, the Department of Homeland Security [DHS] assessed some potential effects of the construction,” the report’s website said. “But federal officials and stakeholders said they didn’t get enough information from DHS to give meaningful input.”

Construction efforts were complicated by the geography of the US’s southern border: Many sections run through rugged and inhospitable territory, including deserts, mountains and even coastal beaches.

Inhospitable terrain can complicate construction efforts along the US-Mexico border [Al Jazeera via Center for Biological Diversity]

To expedite construction through these landscapes, the Trump administration relied on the 2005 Real ID Act, which allows the government to waive laws and regulations that might pose an impediment to border walls and roads.

While previous administrations had invoked the Real ID Act, the Trump administration did so with unprecedented zeal, utilising it between 25 and 30 times, compare with just five during the Bush administration.

The Trump administration also declared undocumented crossings at the southern border a national emergency, empowering the government to overrule existing laws in the name of national security.

“The Trump administration cast those laws aside and ploughed forward with no thought about the consequences,” Jordahl said.

That authority allowed the government to overrule concerns from Indigenous communities in areas where the government wanted to move forward with construction, such as an oasis with sacred value to the Tohono O’odham Nation in Arizona known as Quitobaquito Springs.

“Since O’odham ancestors inhabited the area for thousands of years, it is home to several O’odham burial sites,” the report reads.

“According to Tohono O’odham Nation officials, contractors cleared a large area near the springs, destroying a burial site that the tribe had sought to protect.”

Ultimately, Trump completed 737km (458 miles) of border construction, though much of it overlapped with existing barriers. The GAO found 81 percent of the Trump wall replaced barriers erected under predecessors like former President George W Bush, rather than breaking new ground.

During his presidential campaign, current President Joe Biden promised to put an end to border wall construction, saying that “not another foot” would be built during his time in office.

A saguaro cactus lies destroyed near a border construction site in the state of Arizona [Al Jazeera via Center for Biological Diversity]

Biden halted construction upon taking office in January 2021. However, the GAO report offered a warning about suspending all resources to the border wall area: “Pausing construction and cancelling contracts also paused restoration work — such as completing water drainage structures and reseeding disturbed areas with native vegetation.”

Jordahl, meanwhile, believes that reversing the damage will require going even further.

“Ultimately, we want to see this wall removed from sensitive ecosystems where there has been damage to wildlife,” he said.

SOURCE: AL JAZEERA

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How scientists are trying to save Canada’s canola crops

1 day ago
Duration7:37

Persistent drought is killing canola crops in southern Alberta, but a scientist at the University of Calgary thinks he’s found a solution. CBC’s Nick Purdon goes to the prairies to learn more about the gene-editing breakthrough and what it could mean for the future of farming.

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Ranked: Which Countries Drink the Most Beer? 
(visualcapitalist.com)



 

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