andriessenlaw

Blog of information from Andriessen & Associates, Barristers & Solicitors - a business law firm in Toronto, Ontario, Canada

There are so many people out there who have not given serious thought about Estate Planning. They question “what will happen if I die?”, “what will happen if both myself and spouse dies, my child(ren) will get the property , right?”.

Before that happens (I mean before you die), how about having a sit down with a lawyer and plan your estate. Simple, right? Not as simple as one may think.

It is a process, and the more prepared you are at your first meeting with your lawyer, the better it is for your lawyer to begin drafting your Will with all of the information being available upfront. Know who you want as your Trustees, alternate trustees, and know who will hold your Powers of Attorney, both property and personal care.

You need to think about all of property and assets that you have, including any corporate assets, you need to think about your bank accounts, life insurance policies, investments (RESP’s RRIF’s etc.), and vehicles.

It is common for spouses to have mirror wills (if I die my estate goes to my spouse and vis versa), but if you plan on something different, be prepared and instruct your lawyer and be clear with your instructions.

One of the most important things that clients tend to forget to think about is in the event of a common disaster. What happens if your whole family dies? That also needs to be addressed. Are there charities that you would like to support? Are there friends who have been behind you that you would like to leave something to? Think about the whole picture.

The more information that you come to meeting with, the quicker your Estate Planning will go.

Christine Allan, Law Clerk
callan@andriessen.ca

There are numerous situations where a client walks into a law office with a valid issue but is unable to receive the outcome they desire. In this profession, clients do not always get the results they want however they should never be robbed of their day in court due to their claim being prevented by limitation issues. Limitation issues arise when an action is discovered and brought outside the correct time period.

When starting an action, one of the main items to consider is the expiration of the limitation period. Prior to the implementation of the Limitations Act, 2002 (“LA”) the amount of time a claimant had to bring an action depended on the event and type of action. This provided uncertainty to lawyers which in turn provided uncertainty for clients.

With the implementation of the LA, the Ontario government attempted to simplify limitation requirements. The LA provided a general limitation period of two years. This means that a lawsuit must be brought within two years of the day on which the claim was discovered.

While the LA simplified when an action could be brought it provided exceptions to when it did not apply, which can still lead to confusion. One of those exceptions is claims involving real property. Real property is governed by the Real Property Limitations Act (“RPLA”).

The RPLA provides a ten year limitation period for actions dealing with land. Section 4 of the RPLA outlines when a proceeding falls under the RPLA and is subject to a ten year limitation period.

However, not all actions dealing with land fall within the RPLA. A breach of contract while dealing with land will not be subject to the ten year limitation period and would instead fall under the LA. An action or claim for damages must fall within the definition of “land” in the RPLA for it to be covered by the ten year limitation period.

While the difference between the two acts may seem trivial it may be the different between an action involving land being available or being barred. Thus, while you may be under the impression that you have no cause of action due to two years passing since you discovered your claim, if it involves land you may still have a viable cause of action.

In short, when an issue arises, do not delay talking to a legal professional. Lawyers can help you but due to the LA and RPLA, we also have to work within “limits.”

Harman S. Toor, JD
htoor@andriessen.ca

Our firm is a Professional Corporation. The Canadian Government has declared we are therefore tax cheats. I disagree.

Many of our clients are also Professional Corporations or Small Business Corporations. They are not tax cheats either.

Over the past twenty-four year, I have hired at least thirty people. For each of those employees, I have paid the “top ups” of EI, CPP and taxes as well as our Provincial Employer’s Health Tax. I provide extended health benefits for my employees and our Professional Corporation supports High School Scholarships, the Ontario Justice Education Network and other organizations that need help.

I don’t have a Government Pension. I’ve had to save up in an RRSP, of course at the same time I was saving for my kid’s education in an RESP.

I didn’t get a paid Maternity Leave, I took ten days off and was back at work after having my child. I don’t get a paid sick day, though I do provide my employees with five paid sick days per year. I didn’t get paid when I had an unexpected emergency surgery that left me unable to work for eight weeks.

I’m not complaining about any of the above, but I am complaining when the Canadian Government tells me I’m not “paying my share” and I’m a “tax cheat”. That’s not what Small Business is doing by using a Corporation. Small Business is protecting personal liability by using a Corporation. Small Business is separating personal finances from business finances. Small Business is building the backbone of our economy.

I am not a tax cheat !

Inga B. Andriessen JD
iandriessen@andriessen.ca

One thing that we have noticed with our corporate clients is that they are often operating under a name different than that which has been incorporated. For example, incorporating “ABC Company Incorporated” and then operating under “DEF Co”.

What’s the problem with that? Everything. The Business Names Act specifically states that “no corporation shall carry on business or identify itself to the public under a name other than its corporate name unless the name is registered by that corporation.”

The corporation that you registered is a legal entity that can enter into contracts, etc. You cannot choose to operate under a different name without doing the proper searches and registering that name with the Ministry of Government and Consumer Services. In failing do that, you could potentially be infringing on someone’s Trademark, which can be serious problem.

How do you fix this? When incorporating, you can choose to either incorporate with the name that you want to operate under, or if you choose to operate under a different name, get your corporate lawyers to take that extra step to ensure that the business name is available and register it. The corporation will own that business name. It is a legal entity, and can be used on a store front, when invoicing clients and in operations.

Same goes for individuals who wish to operate without incorporating. You still need to register a Business Name. This is called a Sole Proprietorship, or in the case of more than one individual, a Partnership. The searches are still required and you will then be able to operate with that name.

Our advice: reach out to a lawyer to assist with your corporate planning. In most cases, it will save you money as it can cost more to fix mistakes than to have it done right in the first place.

Christine Allan, Law Clerk
callan@andriessen.ca

We recently had a request from client who is a condominium owner to proceed with an eviction because their tenant was not only failing to pay them rent, but they also had listed the condominium for rent on the Airbnb website.

The question they asked was: Can a tenant rent out their unit through a sharing site like Airbnb? In their case, the answer was no.

Airbnb is short term subletting. Section 97 of the Residential Tenancies Act states that a tenant must obtain consent from the landlord in order to sublet the unit.

Subletting without the consent of the landlord infringes on a landlord’s rights under Section 64 of the Act, and is grounds for eviction.

Even if the landlord consents to this type of subletting, which they should not, the issue of using the unit as an Airbnb may still not be permitted. Section 134(3) of the Act does not allow a tenant to sublet their unit for an amount greater than the rent paid to the landlord. If you are paying $3,000.00 a month in rent to your landlord, and your potential income over the month is more than $3,000.00, then you have breached the Act, and this is grounds for eviction. This section does not allow you collect any fees, penalties, or key deposits from an Airbnb guest.

If the rental unit is a condominium, not only are there issues to deal with under the Act, but Condominium Corporations have its own declarations or bylaws, and most forbid short-term tenancies like Airbnb. The shortest tenancy usually allowed (and most recently upheld in Court) is four months. This is mainly due to these short-term tenants using the amenities of the building, which they are not permitted to use, and for the potential disregard by those guests for the property, and most importantly for security reasons.

Tenants will also have to pay for any damages to the unit as to the landlord as a result of the Airbnb guests. The problem for the tenant is not having enough information on these guests to pursue them for legal action to recover those costs. In addition, the landlord who is the owner of the condominium may face fines imposed by the Condominium Board for any damages caused by the Airbnb guests to the common elements of the building.

If you are a condominium owner and you want to use your unit as an Airbnb, first check the Condominium’s Declaration to ensure you can, and also make sure you also confirm with your insurer that you are covered. If damages to your unit are caused by your Airbnb guests, you may not be covered under your policy.

Murray Brown, Paralegal
mbrown@andriessen.ca

When entering into a services contract, you may be focused on the business terms such as the scope of services and the fees to be paid and gloss over the provisions towards the end of a contract that look like boilerplate provisions. These provisions include the governing law of the contract and assignment provisions that typically restrict one party’s ability to transfer the contract to a third party without the consent of the other party. So, why be so hung up on an assignment clause?

Well, paying careful attention to an assignment clause may save you headaches down the road if a service provider you are expecting to carry out services for many years in a contract suddenly decides to merge with another company or sells its shares to another party that you are not too confident in or concerned about. If you were expecting to rely on the assignment clause to prohibit the transfer of your contract to the newly merged company or new owners, you would be disappointed to find out that the assignment clause is not the mechanism to achieve that if your assignment provision does not include a restriction on a change in control of the service provider.

Having a change of control restriction in your assignment clause will help restrict the transferability of your contract if there is a change in ownership of the service provider to minimize any impact on the quality and level of services you expect to receive. If you are currently negotiating a services contract or thinking of entering into one, we can help you review the assignment clause to protect your interests.

Want to know more? Please reach out to me at any time.

Michelle Eames, LLB, LLM
meames@andriessen.ca

I’ve had the privilege of being a Mentor Lawyer to over twenty-four of the Law Society’s Law Practice Program (LPP) Candidates over the past three years. These are lawyers who have graduated law school and are choosing the LPP instead of Articling.

The last week of August will be the fourth year of the program and I’m looking forward to being a Mentor again. Before I learn the names of my Mentees (I actually call them Mentos because it is just more fun that way) and at that point, make it more personal, here is my “welcome letter” to my future Mentos.

Dear Future Mentos:

Congratulations on choosing the LPP! This program is amazing and will give you the opportunity to be a very well rounded, ethical and focused lawyer as you start out on your law career.

I’m excited to be your Mentor and play a role in your development as a lawyer. Let’s be clear here: while this will be amazing and rewarding, it won’t be easy.

If you have never been told you need to improve, odds are, I will be the first person telling you how you can improve. If you are used to having someone find “the good” in a completely terrible piece of work, it won’t be me. I’m not getting you ready for your next step in your education: I’m getting you ready to be a lawyer in the Province of Ontario.

I expect you to think about the audience you are writing for. I expect you to learn the Rules of Professional Conduct and discuss them thoughtfully. I expect you to consider the fact that you will soon be paid over $ 100.00 per hour to give advice: that advice had better be spell and grammar checked.

I also expect you to have a life. A real life. Not the one where “I read case law in Latin in my spare time”. No. We are going to dive deep into that “work/life balance” concept and we’re going to work together to ensure you have all the best tools available to you to have a great career.

I’ve been a lawyer for over 24 years and I still love it. I’m excited to meet you and work with you and lay the groundwork where you can also love what you do.

See you soon !

Inga B. Andriessen JD
iandriessen@andriessen.ca

When I was in grade 8 and asked what I wanted to be when I grow up, I knew that it was to work in a law firm. I knew I didn’t want to become a lawyer, or be part of Reception (not that there is anything wrong with that!). I knew I didn’t want to go to Court, but wanted to be involved in files.

So why not become a Legal Assistant? At the time, I wouldn’t have known the difference, but when it came to college, it became apparent that I wanted to become a Law Clerk.

Law Clerks overlap with the Legal Assistant role, and that’s where I started. However, depending on the type of law firm, the more busy a Law Clerk gets, the more vital their role is and can no longer cross over to the Legal Assistant work.

What do I do you ask, well, in a nutshell, I take care of the nitty gritty so that lawyers can look at the big picture. For example, for a lawyer heading off to Court on a very important Motion, I make sure they have everything they need. I make sure the costs they are seeking are calculated and outlined in an organized fashion and that they have enough copies of their Orders to hand up to Judges. I also make sure that the Motion has been confirmed in time. Yes, ultimately it is on the lawyer’s shoulders to make sure this happens, but if they have to worry less about those types of things, the better they are at being a good lawyer for our clients. Law Clerks are also a great option for keeping costs down when it comes to drafting enforcement documents and reviewing file materials, which is also very important to a client.

On the corporate end of the spectrum, I make sure that annual corporate record keeping is being maintained and that the Minute Books are up to date. I make sure anything that needs to be reported to the Ministry of Government Relations is being reported. Again, this helps the lawyer focus on more complex corporate issues, and ensures that their time is being utilized how our clients need it to be.

The lawyer is always the point of contact for our clients, but it’s not just lawyers in a law firm, it’s all of us. We are a team, and we all have our vital roles. We couldn’t live without our receptionist or Legal Assistant, and I know that in our office, we couldn’t live without the Law Clerk.

Christine Allan
Law Clerk
callan@andriessen.ca

Throughout my fifteen year career as a paralegal, I have had to deal with many unprepared and inexperienced lawyers and paralegals. Based upon my recent dealings with those representatives, here is my top 7 list of things not to in Small Claims Court:

#7 – Do not delay setting the matter down for Trial. If the matter does not settle at the Settlement Conference, the request for a Trial date should be filed thirty days after the Settlement Conference. Do not wait 8 months to do so, and then complain that the opposing party is looking for an adjournment which is “causing” a delay.

#6 – Make sure your pleadings are correct from the commencement of the proceedings. Do not amend your pleadings 29 days before the second Trial date and most certainly, do not amend your pleadings to raise new issues, or increase the amount of your alleged damages in a weak attempt to persuade the opposing party to settle for the original amount of the claim.

#5 – Comply with the Rules. Do not serve the opposing party with over 100 pages by fax without their consent, and less than thirty days before the trial date. In addition to those 100 pages, do not serve 15 additional documents you want to rely upon the day before trial.

#4 – Not being prepared is not an excuse. Do not introduce over 35 documents you have had in your possession for over two years as exhibits during the trial that you simply did not bother to serve, because you are unprepared. Do not remain silent when the Deputy Judges asks you why you did not serve the documents before the Trial.

#3 – Be prepared for your trial. Have questions prepared relating to the issues in the litigation, to prove your alleged damages rather than spending your time during your Examination-in-Chief asking questions about the “accolades” of your client which are irrelevant, then fail to prove the quantum of your claim.

#2 – Do not object when the opposing party introduces a document during the Trial (that was not served), but was only introduced when it caught your witness in a lie. More importantly, do not make the argument it was not served before the Trial date, when you served dozens of documents the day before the Trial and even tried to slide in over 35 documents during the trial that were not served.

#1 – Do not waste the Courts time, my time, my client’s money, or your client’s money. It is very frustrating when representative does not understand simple legal principals, fails to follows the rules of the Court or does not conducts themselves in a professional manner. It wastes time, money, and resources which could be used elsewhere.

Murray Brown
Paralegal
mbrown@andriessen.ca

A few weeks ago the Bank of Canada raised its key lending rate for the first time in seven years by a quarter-percentage-point. Although a move like this signals a growing confidence in the Canadian economy, not everybody shares this excitement.

For lenders, it can make the business of lending a bit more enticing, but for borrowers, an interest rate increase is not news that makes you want to call home. With concerns that this increase could ultimately hurt consumers who are already stretched too thin, it is a good reminder for lenders and creditors to secure their loans to protect themselves against borrowers who are unable to pay off all or part of their debt.

In Ontario, the Personal Property Security Act (PPSA) is a statutory regime that governs the taking of and enforcement of security in the property of a borrower. If you are a lender, by registering with the Personal Property Security Registration (PPSR) system, it will help you secure your loan interests and help establish priorities between you and other lenders with competing interests in the same debtor property, to protect you in the event the borrower does not pay.

We always recommend our clients who are lenders to secure their interests using the PPSR system rather than risk being an unsecured lender with no protection to secure repayment of their loan. Please feel free to connect with us if you would like to learn more about this regime or if you would like help in becoming a secured creditor.

Michelle Eames, LL.B, LL.M.
Business Lawyer
meames@andriessen.ca