FAQ

Wills and Estates

Do I need a Will?

It is important to have an up-to-date Will to ensure your assets and personal belongings are transferred to whom you want and the way you want. Having a Will gives you the opportunity to name an Estate Trustee, the person who will be responsible for ensuring your estate is taken care of as you have instructed.

What is a Power of Attorney for Personal Care?

A Power of Attorney for Personal Care is a legal document setting out who you want to make medical decisions for you should you become incapable of doing so on your own.

Do I need a Power of Attorney?

It is important to have a Power of Attorney for Personal Care and a Power of Attorney for Property to ensure your medical needs and financial matters are properly taken care of in the circumstance you are ill or injured and are unable to manage your own affairs.

What is an Estate Trustee?

An Estate Trustee is the individual you appoint in your Will to administer your estate upon your death. The Estate Trustee will have many responsibilities, including, but not limited to, preparing funeral arrangements, distributing your personal belongings, assets and investments to the person(s) named in your Will, opening a bank account for the estate and ensuring the estate tax returns are filed.

What is a Certificate of Appointment of Estate Trustee?

A Certificate of Appointment of Estate Trustee With a Will is a document issued by the court proving the authority of the Estate Trustee to administer the deceased’s estate.
A Certificate of Appointment of Estate Trustee Without a Will is a document granted by the court giving authority to the Estate Trustee to administer the estate of the deceased who died without having executed a Will.

Is it necessary to obtain a Certificate of Appointment of Estate Trustee?

No, it is not always necessary to obtain a Certificate of Appointment of Estate Trustee. It depends on the nature and value of the estate assets.

What are Probate Fees?

Probate fees are payable to the Minister of Finance to have the Certificate of Appointment of Estate Trustee issued with the court office. The amount of probate fees is determined by the worth of the estate (i.e. $5.00 for every $1,000.00 for the first $50,000.00 of the value of the estate and $15.00 for every $1,000.00 and part thereof of the value of the estate exceeding $50,000.00).

For example, if your estate is worth $650,000.00, the probate fees would be $9,250.00 ($5.00 x 50 for the first $50,000.00, being $250, plus $15.00 x 600 for the remaining $600,000.00, being $9,000.00).

Real Estate

What is land transfer tax?

In general, if you buy land or an interest in land in Ontario, you must pay land transfer tax.  The land transfer tax payable is normally based on the purchase price.  In some cases, land transfer tax is based on the fair market value of the land, for example, where:

  • a lease can exceed 50 years;
  • land is transferred from a corporation to one of its shareholders; or
  • land is transferred to a corporation, if shares of the corporation are issued.
How do I calculate Land Transfer Tax?

Land transfer tax is calculated as a percentage of the value of the consideration.  These rates are currently as follows:

 

0.5%

 

For amounts up to and including $55,000

1.0%

For amounts exceeding $55,000 up to and including $250,000

1.5%

For amounts exceeding $250,000

2.0%

For amounts exceeding $400,000 where the land contains one or two single family residences  

For a quick calculation of land transfer tax refer to the following list.  Residential property refers to land containing one or two single family residences as defined by the Land Transfer Act.  The Value of the Consideration for a conveyance or disposition is shown as ‘VC’.  Land transfer tax payable is shown as ‘LTT’.

 

For the Value of the Consideration:

Formula

up to and including $55,000

LTT = VC × 0.005

exceeding $55,000 and up to $250,000

LTT = (VC × 0.01) – $275

exceeding $250,000, for property other than residential

LTT = (VC × 0.015) – $1,525

exceeding $250,000 up to $400,000, for residential property

LTT = (VC × 0.015) – $1,525

for residential property exceeding $400,000

LTT = (VC × 0.02) – $3,525

Do I have to pay land transfer tax if I am a first-time homebuyer?

If you meet the following requirements, then you can apply for a refund of the land transfer tax paid on the purchase of your first home:

  • You cannot have previously owned a home, or had any ownership interest in a home, anywhere in the world, at any time.
  • If you have a spouse, the spouse cannot have owned a home, or had any ownership interest in a home, anywhere in the world, while he or she was your spouse. If this is the case, no refund is available to either spouse.
  • You must be at least 18 years of age.
  • The application for a refund must be made within 18 months after the date on which the conveyance or disposition occurred. (Note that an application for the refund can be completed upon the electronic registration of the conveyance).
  • You must occupy the home as your principal residence no later than nine months after the date of the conveyance or disposition.
  • You cannot have previously received an Ontario Home Ownership Savings Plan (OHOSP) based refund of land transfer tax.
  • If the agreement of purchase and sale is entered into before December 14, 2007, the home must be newly constructed. 
Is there a limit to the amount of the land transfer tax refund?

The maximum amount refundable is $2,000.  For example: 

 

Cost of Home

Tax Payable

Tax Refund

Net Tax Payable

$100,000

$725

$725

$0

$200,000

$1,725

$1,725

$0

$300,000

$2,975

$2,000

$975

What is title insurance?

The word “title” refers to a person’s ownership interest in their property.  By purchasing title insurance, homeowners are protecting their ownership to their property, and their lender’s priority in the mortgage against losses arising from various title and off-title risks.

 

Policies can be issued in Canada for, residential dwellings of up to six units, vacant land, cottages, condominiums, co-operatives and leased land.

 

For a one-time fee, some of the covered title risks for residential properties include:

  • someone else owns an interest in your title
  • existing liens against the title
  • violations of municipal zoning by-laws
  • encroachments onto an adjoining property (other than fences and boundary walls)
  • setback violations
  • realty tax arrears
  • outstanding municipal utility charges, provided such charges form a lien on title
  • existing work orders
  • lack of legal access to the property
  • unmarketability of the land due to adverse matters that would have been revealed by an up-to-date survey 
  • fraud, forgery and false impersonation to the extent they affect the validity of title

 

The total title insurance premium is often less expensive than the cost of obtaining an up-to-date survey and standard off-title searches.  Title Insurance is generally acceptable to lenders in lieu of an up-to-date survey.  This saves purchasers/borrowers the cost of obtaining a new survey and allows a transaction to close faster.

 

Whether it is a house, condominium or cottage, title insurance brings security and peace of mind to lenders and homeowners during and after the transaction process, and could save them thousands of dollars should a claim arise.  Title insurance has no deductible so the premium is truly a one-time fee. Coverage is valid for the entire time the homeowner holds title to the home.

Who pays the real estate commission?

In most cases, it is the seller who pays the real estate commission based on the listing agreement they signed with their realtor when they put their house up for sale.

What is CMHC (Canada Mortgage and Housing Corporation) Mortgage Loan Insurance?

Mortgage loan insurance is typically required by lenders when homebuyers make a down payment of less than 20% of the purchase price.  Mortgage loan insurance helps protect lenders against mortgage default, and enables homebuyers to purchase homes with a minimum down payment of 5% — with interest rates comparable to those with a 20% down payment.

To obtain mortgage loan insurance, there is a premium charged to the lenders that is typically passed on to the homebuyer.  The premium payable is based on a percentage of the home’s purchase price that is financed by a mortgage.  The premium can be paid in a single lump sum, or it can be added to your mortgage and included in your monthly payments which is the customary approach.

What is Tarion?

Tarion Warranty Corporation protects the rights of new home buyers and regulates new home builders.

 

Tarion is responsible for administering the Ontario New Home Warranties Plan Act, which outlines the warranty protection that new home and condominium builders must provide, by law, to their customers.

 

The primary purpose of Tarion is to ensure that builders abide by this legislation, and protect consumers when builders fail to fulfill their warranty obligations. 

What does “caveat emptor” mean?

Caveat emptor means “let the buyer beware”.   It is a warning that notifies a buyer that the goods or property is being sold “as is,” or subject to all defects.

 

When a sale is subject to this warning or a statement that the property is being purchased “as is” the purchaser assumes the risk that the property may have a defect or be unsuitable for his or her needs.  This rule is not designed to protect sellers who engage in fraud or bad faith dealing by making false or misleading representations.  It merely summarizes the concept that a purchaser must examine, inspect and judge the property for himself or herself before deciding to purchase it.

What is a home inspection?

A home inspection is a thorough visual assessment of a home conducted by a professional home inspector.  A home inspector is not the same as a building inspector employed by the City or municipality to inspect new construction or renovations. 

Home inspections occur before a home is sold, to reveal any issues that might become problems for the buyer.  A home seller may also choose to have a home inspection done prior to listing a property, in order to avoid any unpleasant surprises during negotiations.

A home inspection will typically include a walk-through tour of the house during which the inspector will conduct a visual inspection of the condition of the property.  The inspector will note any defects and deficiencies and recommendations for repair are made.  During the inspection, the inspector will look for issues that could have significant impact from a health and safety perspective, or from a financial standpoint.

Disability

What is the definition of disability?

Most long-term disability insurance plans consider you to be totally disabled if it has been medically determined that you have a physical or mental impairment due to injury or illness that prevents you from performing the duties of your own occupation. This “own occupation” definition usually applies for the first 24 months of disability, after which, the definition of disability changes and the question is whether you have a physical or mental impairment due to injury or illness that prevents you from performing the duties of “any occupation” for which you are suited or may reasonably become suited to perform, based on your education, training and experience.  It is usually at this 24 month mark that individuals receiving benefits find that their insurer takes the position that they are no longer entitled to long-term disability benefits because they take the position that the definition of disability is no longer met.  If your benefits are denied or terminated, it is best to consult an experienced lawyer about starting a lawsuit to challenge that decision. 

What does “pre-existing” condition mean?

Some long-term disability insurance plans exclude or restrict the ability to collect benefits if there is a pre-existing condition.  For instance, if you become totally disabled within the first 12 months of your coverage starting, and the disability resulted from a sickness or injury for which you received treatment or for which drugs were prescribed and taken within 90 days prior to the effective date of your coverage, the insurer may refuse to pay disability benefits because it resulted from a sickness or injury that existed before your coverage started. 

The term “waiting or qualifying period” is often used in long-term disability benefits. What does this mean?

The qualifying or waiting period for long-term disability benefits usually complements the short-term disability programs in that short-term disability benefits are paid until the long-term disability benefit waiting period is over. This waiting period is likely to help reduce administration for claims of short duration.

Qualifying or waiting periods for long-term disability benefits typically range anywhere from 4 months to one year. 

How much am I entitled to receive if I qualify for long-term disability benefits?

The monthly long-term disability benefit is a percentage of your pre-disability earnings.

This amount is calculated either by your gross (pre-tax) or net (after tax) earnings. Whether it is calculated on gross or net earnings depends on who pays the premium – if you pay the premium, then the benefit is tax-free, meaning your benefit is calculated on your net earnings; if the employer pays, then the benefit is taxable and calculated on your gross earnings

My claim for long-term disability benefits has been denied or terminated. Should I hire a lawyer?

It is best to speak with a lawyer so that you understand your rights under the long-term disability insurance policy and whether there are justified grounds for the insurance company to deny or terminate benefits.

What is the Canada Pension Plan Disability Benefit and how do I qualify?

The Canada Pension Plan (“CPP”) Disability Benefit is part of the Canada Pension Plan.  It is available to people who contribute to CPP to provide financial assistance if they are unable to work because of a severe and prolonged disability.  In addition, if you qualify for the CPP disability benefit and have dependant children, CPP will also pay a monthly benefit on behalf of your dependant children.

To qualify for benefits, you must have a disabling condition which is “severe and prolonged”. “Severe” means your condition prevents you from working regularly at any substantially gainful occupation and “prolonged” means your condition is long term or may result in your death. 

I have been denied Canada Pension Plan Disability Benefits, can I appeal?

If your application for CPP disability benefits has been denied, you can ask for reconsideration.  If after reconsideration, they confirm the original decision, you can appeal to the Office of the Commissioner of Review Tribunals.  The timeline for appealing is 90 days from the date of the reconsideration decision. 

Employment

What is “wrongful dismissal”?

Often people are under the mistaken impression that their employment cannot be terminated unless they have done something so egregious to warrant the termination of their employment.  The fact is that an employer can terminate an employee and they need not provide a reason for doing so.  The question becomes whether the employee was terminated “without cause”, or “with cause”. 

If an employee is terminated without cause, then they are entitled to, at a minimum, pay in lieu of notice and possibly severance pay, as provided in the Employment Standards Act.   However, just because an employer is offering the minimum provided by the Employment Standards Act, does not necessarily mean that the offer is a reasonable one – after all, it is the minimum payment that an employer can offer.  In fact, even if your employer is offering slightly more than the statutory minimum, it still may be not be a reasonable offer. 

If you have a written employment contract, it is important that you have it reviewed by a lawyer before accepting any severance package being offered by your employer. 

If you do not have a written employment contract, the common law entitlements to notice apply.  The common law notice entitlements are based on several factors including: the person’s age, position, years of service, and the availability of alternate employment taking into consideration the employee’s education and training.  Common law notice is not fixed like the minimum provision of the Employment Standards Act, instead it is based on what a Court believes is reasonable in the circumstances.  This can be well above what an employer is offering and so, it is very important that you consult an experienced employment lawyer to assess what you might be entitled to under the common law before accepting your employer’s offer.  If the offer is a reasonable one, then your employer should be more than happy to give you the opportunity to consult with a lawyer before accepting it.  If there is pressure being exerted by the employer to accept the offer without having had the benefit of legal advice, chances are that the offer is not a reasonable one.    

What does “termination pay” and “severance pay” mean – is there a difference between the two?

Termination pay and severance pay are terms taken from the Employment Standards Act.   Termination pay refers to the minimum amount of pay in lieu of notice that an employer must pay an employee on the termination of their employment when the employer does not have cause for termination.  The Employment Standards Act provides that an employer shall pay 1 week for every year of service up to a maximum of 8 weeks as termination pay.  Severance pay is the equivalent of one week per year of service (or part thereof) up to 26 weeks.  Severance is only paid if the employer has payroll that exceeds $2.5 million and the employee has been employed for more than 5 years.  

If an employee was terminated with cause, then there is no entitlement to termination pay or severance.  It is extremely important that you consult an experienced employment lawyer if your employer has taken the position that you were terminated for cause. 

What is constructive dismissal?

Constructive dismissal is a term that is used when the employer unilaterally changes the terms of your employment contract in a fundamental way, such as:  a demotion, decrease in pay and benefits in excess of 10%, a change in responsibilities, a change in title.  Where an employee is constructively dismissed, the situation is treated as if the employee had been wrongfully dismissed.  Under these circumstances, the employee is entitled to compensation in accordance with the common law notice entitlements. 

What do I do if I was terminated for cause?

You should consult a lawyer to discuss whether your employer had appropriate cause for terminating your employment.  Sometimes it is apparent that an employer had appropriate cause for termination, other times it is not so obvious and the decision can be challenged in Court, and in some instances, an employer will allege cause, where none exists and will simply use it as a tactic to avoid paying an employee what they are entitled to on termination of their employment. 

Should I sign a release?

Often an employer will make a severance package conditional on the signing of a release.  A release is a contract and contains a lot of legal jargon that is unfamiliar to most employees and is difficult to understand.  If an employee signs a release, he or she is accepting the offer being made by the employer in full and final satisfaction of any claims which he or she may have against the employer and will be prevented from pursuing legal action against the employer. 

You should not sign a release unless and until you have had the release and severance package reviewed by an experienced employment lawyer.  

Your employer cannot require that you sign a release before they will pay you the minimum notice set out in the Employment Standards Act.    You are entitled to this at law if you were terminated without cause, and you do not need to sign any forms or a release to receive it.  Unfortunately, some employers will ask that you sign a release before they will pay you the minimum notice amount.  Instead of signing a release, you should consult a lawyer immediately. 

Car Accidents

What is “no-fault” insurance?

No-fault insurance means that you deal with your own insurance company if you are injured or your car is damaged as a result of an accident, regardless of who is at fault.

Under your own insurance policy, you will have a package of accident benefits available to you in the event you are injured as a result of a car accident.  It is your insurance company that pays for things like medical treatment and rehabilitation benefits and income replacement benefits for missed time from work.

What kinds of benefits do I get through my automobile insurance?

The most common types of accident benefits that are available are:

  • Income Replacement benefits – if you are eligible, this benefit partially replaces your income, up to a certain amount, if you are not able to go back to work after an accident or cannot work to the same extent that you did before the accident.
  • Medical and Rehabilitation benefits – if you are injured, these benefits pay for reasonable and necessary medical treatment and rehabilitation expenses that are not covered by OHIP or a private health care plan that you may have through work or your spouse, such as massage, chiropractic and physiotherapy treatment.
  • Non-Earner benefit – You may qualify for the non-earner benefit if you suffer a complete inability to carry on your normal life and if you do not qualify for the income replacement benefit.  
  • Attendant Care benefits – if you unable to care for yourself physically due to your injuries, (such as bathing, dressing or feeding yourself) this benefit will pay reasonable and necessary expenses for an aide, attendant or long-term care facility.
  • Housekeeping and Home Maintenance benefits – this benefit assists you with the expenses of having to hire someone to help clean inside your home or outdoor maintenance, if you are unable to do so as a result of your injuries.  This is an optional benefit, and you will need to pay an additional premium under your insurance policy to have this benefit available to you, unless you have been catastrophically injured.
  • Caregiver benefits – if you cannot continue as a primary caregiver for a dependent and if you are eligible, this benefit will reimburse you for the expenses you incur.  This is an optional benefit, and you will need to pay an additional premium under your insurance policy to have this benefit available to you, unless you have been catastrophically injured.
  • Dependent Care benefit – If you have young children, and you have to pay for childcare expenses as a result of the accident, this benefit will reimburse you up to a certain amount.
  • Death and Funeral Payments benefit – there are lump-sum payments available for survivors of a person killed in a motor vehicle accident and to help pay for a funeral.
What is the Minor Injury Guideline?

The Minor Injury Guideline imposes limit of $3,500.00 on medical and rehabilitation expenses for “minor injuries”.  By contrast, if an injury is not considered minor, medical and rehabilitation benefits are available up to $50,000.00 for up to ten years after the accident (or up to $100,000.00 if optional coverage has been purchased).  If you have a pre-existing condition that might negatively impact on your recovery, you may be eligible for the full amount of the medical benefits, even though you might be classified as having a minor injury. 

Do I have coverage for accident benefits if I have been struck by a car as a pedestrian or a cyclist?

Yes. If you have automobile insurance coverage or if you are listed under someone else’s policy, then you have coverage for medical expenses.

If you are not insured under your own insurance policy or if you are not listed under someone else’s policy, then you would submit a claim for your expenses to be paid under the insurance policy of the owner of the car that struck you.  Lastly, if there is no insurance coverage on the vehicle that struck you, then there is a government fund available to pay for these expenses. 

Why am I dealing with so many insurance people after a car accident?

If you have been injured in a car accident, you will often find yourself dealing with a number of insurance adjusters.  If your vehicle has been damaged, you will be contacted by an insurance adjuster representing your own insurance company, to discuss the repairs to your vehicle or the value of vehicle if it is written-off.  If you have been injured, another insurance adjuster will be assigned to manage your accident benefit claim. 

If you have been injured, you may also hear from an insurance adjuster who represents the driver / owner of the vehicle responsible for the accident.   It is recommended that you do not speak to this individual if you have not consulted with an experienced car accident lawyer first.  

What happens if I have been injured and the other vehicle responsible for the accident is not insured?

Most insurance policies have what is called “underinsured” and “uninsured” coverage.  That means that if the other driver is not properly insured, you can commence a lawsuit against your own insurance company to provide compensation to you.

Underinsured and uninsured claims are often a complicated and complex route to navigate through.  There are a number of variables that can affect your ability to obtain compensation, which is why it is best to speak with a lawyer who has expertise in this area.

If I have been injured in a car accident due to the fault of another, can I sue?

Whether you can sue for your losses will depend on the circumstances.  You can sue to recover any out of pocket expenses or financial losses that are not otherwise paid for under your own automobile insurance policy (ie. housekeeping expenses, loss of wages, caregiver expenses etc.).

You can sue for “pain and suffering” and health care expenses not covered by OHIP or other insurance if, and only if, you have suffered:

(a)           a permanent serious disfigurement (ie. scarring); or

(b)          a permanent serious impairment of an important physical mental or psychological function.

A lawsuit for pain and suffering is also subject to a deductible, and at this time, that deductible is $30,000.00.  The deductible does not apply if your award for pain and suffering is over $100,000.00.

How long do I have to sue the other driver responsible for the accident?

The limitation period for most lawsuits is 2 years from the date of the accident. For example, if you were in an accident on March 15, 2012, you would have until March 15, 2014 to start a lawsuit.

How do I pay my lawyer if I am no longer working because of my accident?

At Ferguson DiMeo Lawyers, we will take your case on what is called a “contingent fee basis”, which means that you will pay no fees unless and until there is a settlement or judgment in the lawsuit.

Slip and Falls

What is a slip/trip and fall accident?

Slip/Trip and falls are defined as being just about any type of fall that occurs on someone else’s property.  Liability may arise if the injury was a result of a dangerous or hazardous condition which the property owner and/or occupier allowed to exist.  The fall can be the result of snow or ice accumulation, uneven sidewalk, unsafe floor conditions, poor lighting, lack of handrail or any number of other conditions.   

Can I sue if I have been injured in a slip/trip and fall?

Yes.  If you have been injured as a result of a slip/trip and fall, and the owner of the property or premises was negligent, you have the right to sue.  You may be entitled to damages for:

  • Pain and suffering, loss of enjoyment of life
  • Lost wages / income
  • Health care expenses
  • Other out of pocket expenses

Unlike a car accident case, there is no deductible in a slip and fall or trip and fall case.

What are the defences that I can expect will be raised against me in my claim for injuries I suffered due to a fall on someone else’s premises?

The most common defence is to deny that any dangerous condition existed on the premises. However, if the owner admits that there was a dangerous condition, they may then deny having timely knowledge of the dangerous condition in order to have done anything about it.

You may also be told that your slip/trip and fall was caused by your own negligence (eg. not wearing the appropriate footwear) or that you were careless by failing to observe the dangerous condition (eg. not paying attention to where you were going).

It is important to discuss your situation with an experienced personal injury lawyer to understand your rights.

What should I do after a fall to protect my rights?

As most slip/trip and falls occur on a potential defendant’s property, it is often times difficult to take the prudent legal steps at the time of the fall as you are often assisted by the owner of the property or staff of the premises and ushered away from the scene as quickly as possible. You may be too injured to think about asking for the names of witnesses or request that you receive a copy of any report that is completed about the fall.

The best way to protect your rights after a fall is to call an experienced personal injury lawyer as soon as possible, in order to determine what needs to be done to ensure that the proper investigation is started so that the necessary supporting evidence is obtained and gathered.

What should I do after I have slipped/tripped and fallen on private property?

It is best if you can determine what you slipped/tripped on, first of all.  Get the names, addresses and telephone numbers of any witnesses.  Keep the footwear you were wearing, and avoid wearing it again, if possible.  Take photos as soon as you can, of the area of the fall and specifically what caused you to fall, if possible.  Go to your doctor or attend at a hospital and make sure the incident and your injuries are documented.  Avoid speaking to any insurance company representative.