Thursday, August 31, 2006

Impaired Driving Charge and Driving Prohibtion

It’s Monday morning. Across the street a flag atop a neighboring office tower rolls languidly in the breeze. I log into our phone system.

The first caller is “Bob,” and it seems he got into a “situation” over the weekend. He went out to the local pub with a few buddies Saturday for a few brews. After last call, they decided that since he drank the least of all of them, he should be the one to drive everybody home.

This plan was working well until they got about three blocks from the pub. Long story short, he got pulled over by the police, and was taken to the station for a breathalyzer test. His readings were 0.12 and 0.14. The officer gave him a 90 day administrative driving prohibition and a Promise to Appear in court about one month from now.

He is mainly concerned about losing his license. His job doesn’t involve driving, but he lives in a small town area with no bus service, so it’s very awkward not to have a license. He’s not sure if he can afford a lawyer or if he stands a chance anyway. Can he get a prohibition that would still allow him to drive to and from work? What kind of penalty is he looking at if he pleads guilty? He has a clean driving record and no criminal convictions.

I inform him that the minimum penalty in B.C. is a $600 fine and a one-year driving prohibition. Unfortunately for him, there is no way to get any exceptions to the driving prohibition, whether for work or other purposes. If he is sentenced while the administrative prohibition is still in effect, the two prohibitions will overlap.

What are his chances of beating the charge? That’s not a question we can answer through this phone service. He would need to meet with a lawyer, review the fact with him or her, and inquire about fees. Only then can he do a cost / risk analysis. He can shop around a bit, as fees do vary. Since there is no realistic chance that he is facing going to jail, he would not qualify for having a lawyer paid for by Legal Aid, even if he did qualify financially.

If he doesn’t have a lawyer by the time of the court date, he should have Duty Counsel help him. Duty Counsel are lawyers who hired by Legal Aid to attend court to help people who don’t have their own lawyers. They can’t do trials for you, but they can appear with you at procedural appearances, review your case with you, give general advice, and arrange guilty pleas and appear with you on a sentencing.

As for the administrative prohibition, he is aware that he can apply for a review and possibly get it set aside. He must make his application within seven days from the date that the prohibition was issued. The grounds for review are very limited. For further details, I direct him to a fact sheet published on the website of the Office of the Superintendent of Motor Vehicles. Some lawyers handle these reviews for a fixed fee.

Bob thanks me, somewhat glumly, and we say good-bye.

Thursday, August 17, 2006

Family Justice Counselors

It’s Joni calling again. I spoke to her a few weeks ago about a debt collection matter. That worked out fine, she says. She’s not getting hassled anymore about that, but now she has a new problem.

It seems that she and her former common law partner, Bruno, are not seeing eye to eye about their daughter, Roxanna, age eleven. Since they broke up about three months ago, Roxanna has been living with Joni, and Bruno has been having Roxanna over to his place every other weekend. Apparently, Bruno feels this should be increased to every weekend, since Joni has her all week. Joni thinks this is ridiculous, since during the week Joni’s at work and Roxanna’s in school. In the meantime, Bruno has been paying $250 per month child maintenance, though he did miss one month.

As it seems that Joni and Bruno can talk to each other, though they have their differences, I recommend that they take the Parenting After Separation course offered for free by the family justice department of the Ministry of the Attorney General. It’s a three-hour information session for separated parents who are dealing with child custody, guardianship, access and support issues. The idea is help parents make rational and informed decisions based on the best interests of their children.

I also recommend that they meet with a Family Justice Counselor. Family Justice Counselors are accredited mediators, and one of the things they do is to help separated parents come to agreements on custody, guardianship, access and support issues. Such agreements are legally binding and can be filed with the courts.

If they can’t work out an agreement, the other option is going to court. Hopefully this won’t be necessary, but if it starts to look like it is, she can give us a call back.

In the meantime I will mail her a booklet called “Living Common Law,” which has a section dealing with the legal issues when breaking up.

I also note that in addition to child support, she could claim spousal support. She is quite adamant that she does not want this from him, but just in case, I point out that if she changes her mind, she must file a court action within one year of the date they stopped living together.

That seems to do it for now. She thanks me for my help, and I tell her she’s very welcome.

Thursday, August 03, 2006

Unpaid Wages and Severance Pay

“Punjabi, please,” says the next caller.

I put him on hold as I arrange for an interpreter to join us by conference call. After getting the interpreter’s name and ID number, I confirm with her that the conversation is strictly confidential and protected by lawyer / client confidentiality. Then I complete the three-way connection, and the interpreter and the caller introduce each other.

Rupinder was laid off from his job with a restaurant where he had been working as a dishwasher for five months. It seems that business was slow, and the owner needed to trim costs. Rupinder wasn’t totally surprised, but he did not receive any advance notice.

That’s life, he figures, but he is concerned that he hasn’t been paid for the work he’s done since his last regular paycheque. Does he have to go to court? Also, he is wondering if he is eligible for EI.

As for E.I., I tell him he probably does qualify and should go ahead and apply. He has his Record of Employment (“R.O.E.”), which is good, because the E.I. people will need to get a copy of it. I also point out that E.I. does not pay any compensation for the first two weeks of a person’s unemployment.

As for his unpaid wages, although Rupinder could pursue a claim in court for unpaid wages and severance pay, it would probably not be worthwhile to pursue this option, since his potential claim is not that big, due to his short period of service and low wage rate.

Instead, it would be far more practical for him to enforce his rights under the Employment Standards Act, which states that in B.C., employees have must be paid all outstanding wages within 48 hours of being let go, including vacation pay. Also, the Act states that “wages” includes severance pay. Employees who have worked for an employer between three months to a year must be paid an extra week’s wages as severance pay.

It’s possible that the employer intends to pay him all of this at the end of the next pay period. However, if he isn’t paid or doesn’t want to wait, he will need to get a “Self-Help kit” from the Employment Standards Branch, the government agency responsible for enforcing the Act. He should fill out the kit and deliver the demand part of it to his employer. If he does not get paid within 15 days of delivery, he can then file a complaint with the Branch.

He can get the Self-Help Kit and the complaint form from the Branch’s website or one of their offices. If he needs help completing it, we can help, or he can contact MOSIAC, a non-profit immigrant assistance society.

If the matter isn’t settled after 15 days of delivering the demand for payment, he should contact us or MOSAIC for help with taking the next step of filing a complaint with the Branch.