Consequences of Backing out of an Agreement of Purchase and Sale
Thu/11/2010 19:45 Filed in: Real Estate | Civil Litigation
Sometimes a buyer is unable to complete the purchase of a property after signing the Agreement of Purchase and Sale.
Since the Agreement of Purchase and Sale is a legally binding contract there are a number of possible considerations that a buyer should consider in these circumstances.
The Deposit
The Agreement of Purchase and Sale may directly address what happens to the deposit if the buyer defaults. If the Agreement of Purchase and Sale does not address this issue, a court will likely find that the seller is within his or her right to keep the deposit amount.
Damages
If the matter went to court, the buyer who backed out of a deal after signing the Agreement of Purchase and Sale could be required to compensate the seller for expenses that he or she incurred because of the buyer backing out of the deal.
This could include the costs of having to put the property back on the market, moving expense and other immediate expenses that the seller incurred because of the buyer’s default.
The buyer could also be liable for a host of other expenses incurred by the seller. For example, if the seller agreed to buy another property on the basis of having sold his or her existing home, the defaulting buyer may be liable for the deposit amount and any other expenses incurred as a result of the seller having to back out of this subsequent purchase.
Although a court is unlikely to order the buyer to complete the transaction (compel the buyer to purchase the house), a defaulting buyer could have to pay the seller thousands of dollars if, for example, the seller is unable to find a buyer and is forced to sell the house at a lower price.
Conclusion
The Agreement of Purchase and Sale is a legally binding contract and a buyer should only make an offer to purchase if they are certain about their ability to close the deal.
How can a Criminal Record Hurt your Job Prospects?
Sat/11/2010 12:21 Filed in: Labour and Employment | Human Rights
Having a criminal record can significantly hurt your ability to work in a given position.
What is a Criminal Record?
When an individual is convicted of a criminal offence, it is recorded in a “criminal record”. The record is stored in a RCMP database called the Canadian Police Information Centre (CPIC) and is accessible to law enforcement agencies in Canada and border security officials in Canada and other countries.
In addition to the information stored in the CPIC, local police forces usually maintain their own databases that contain information about pending charges, charges that resulted in an acquittal, an investigation involving you, your involvement as a witness, complaints against an individual by others (including complaints about domestic abuse) and notes about any contact you might have had with the police. The information in a local police force database depends on what information the particular force records, which varies by police force.
What is a Criminal Record Check?
A criminal record check (also known as police records check, police background check, criminal background check, criminal reference check, etc.) produces a report from police databases. As one might expect, the information in a criminal record check would include information about the individual’s criminal record from the CPIC (criminal convictions). However, since criminal record checks are performed through a local police force (such as the Toronto Police Service) a police background check may also include a wide range of additional information from the database of the local police force. Whether the police force provides information in addition to criminal convictions depends on the policies and practices of the force itself and whether disclosure is required by law (necessary for some professions, described below).
Criminal Record Checks and Employment
An employer cannot have a criminal record check performed without your consent. Many employers ask that prospective employees and volunteers consent to a criminal record check. In some industries, having a check performed prior to employment is actually required be law. These occupations include government employees, teachers, police officers, nuclear power plant employees, nurses, bank employees, financial advisors, couriers, security guards, casino employees, taxi or limousine drivers, collection agency employees, funeral directors and truck drivers.
Typically, a criminal record check is performed after a job candidate is deemed otherwise qualified. An offer of employment is made on the condition that result of the criminal record check does not render them unsuitable. Applicants may refuse to consent to a criminal background check, however the hiring organization would be within its right to withdraw the offer of employment.
An employer may use the record of an applicant’s prior criminal offence to refuse to hire him or her. However, according to the Ontario Human Rights Code, an employer may not make a hiring decision on the basis of a pardoned criminal offence or a provincial offence (traffic ticket or municipal bylaw offence). As discussed above, criminal background checks may include information about any contact with police.
In addition to pardoned criminal offences and provincial offences, a person with a mental illness may come into contact with the police under provisions of the Mental Health Act. If revealed by a criminal background check, this information cannot be used by an employer to make a hiring decision. To do so would be contrary to the Ontario Human Rights Code’s prohibition on discrimination on the basis of disability.
How else can a Criminal Record Hurt Me?
A criminal record may seriously jeopardize an application for Canadian citizenship, entrance to a regulated profession (dentistry, medicine, accounting, law, etc.) or international travel.
Obtaining a Pardon
Once you are convicted of a criminal offence, a record will permanently appear in the CPIC, unless you obtain a pardon. Pardons fall under the jurisdiction of the Parole Board of Canada.
If convicted of a summary offence (less serious crime) other than a sexual offence, you can apply for a pardon three (3) years after serving the sentence (including probation). So long as certain conditions are met, a pardon will usually be granted.
If convicted of an indictable offence (more serious crime) or a summary sexual offence, you must wait for five (5) years after serving the sentence (including probation) to apply for a pardon.
If convicted of a personal injury offence where a sentence of two or more years was imposed or an indictable sexual offence, you must wait for ten (10) years after serving the sentence (including probation) to apply for a pardon.
After applying for a pardon, it may take months or years before a decisions is reached. An application for a pardon may be denied as the decision to grant a pardon is ultimately the discretion of the Parole Board of Canada. If a pardon is granted, the criminal record is not destroyed. Instead, it is kept separate from the records of non-pardoned criminal convictions. Once granted, a pardon may cease to have effect if, for example, the individual is subsequently convicted of an indictable offence.
You do not need to apply for a pardon if you have received an absolute or conditional discharge after July 24, 1992. A discharge occurs when there is a finding of guilt by the court, but the accused is deemed not to have been convicted. A conditional discharge will be automatically removed from CPIC three years after the court decision, while an absolute discharge will be automatically removed after one year.
Enhanced Criminal Background Checks
Employers who hire workers to work with vulnerable members of society (children, seniors, mentally disabled, etc.) may perform criminal background checks which show sexual offences, including sexual offences that have been pardoned. Enhanced checks are meant to provide the highest level of protection to vulnerable people.
Other Precautions
When travelling with a criminal conviction that has not been pardoned, it is possible for the border services officers of other countries to make records of the conviction and retain these records on their databases even after a pardon is granted by the Parole Board of Canada.
Keep in mind that a pardon only applies to the information in the CPIC database and that the information in a local police force database will not be removed by a pardon.
For additional information on obtaining a pardon, hiring practices or criminal records, please contact us.
