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andriessenlaw

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

When you hire new employees, how do you make sure they are made aware of policies and procedures within the company? How do you make sure they know what is expected of them as an employee within your company? The Company Handbook is how.

Important topics to be covered in the Handbook vary depending on your business, but all employers are required to have certain policies such as an Non-Discrimination Policy, a Harassment Policy, and a Workplace Violence Policy. The Handbook should also set out the compliant procedure, inform of any benefit programs, scheduling vacation days, performance review, cell phones and internet use in the workplace, in addition to any dress codes within your company. These are just a few of a number of topics that should be set out.

Everything that an employee will need to know should be contained within that Handbook. Additionally, you will want to make sure the employee signs an Acknowledgment that they have read and understood the Handbook so that there is no misunderstanding if the relationship is terminated later on.

The Employee Handbook is just as important as having new employees sign Employment Contracts. This can protect your Company from any issues down the road if an employee attempts to claim that they were not aware of a company policy.

Creating an Employee Handbook can be time consuming, but once it’s done, it is just a matter of updating required sections like updating the Ministry of Labour poster that was released on January 1, 2018.

Christine Allan
Law Clerk
callan@andriessen.ca

When we are looking to sign a contract, it is easy to become lost in the business details to ensure that the key contract terms reflect business discussions and expectations.

Although it is important to ensure that the key contract terms are accurate as you enter into a new contractual relationship, what happens if things do not work out as planned after you have signed on the dotted line? Do you know where the exits are in the contract if you need to terminate and get out of the agreement?

An important section of the contract that can be overlooked is the termination provision. A termination clause sets out different scenarios of when the parties may end their legal relationship and stop fulfilling their obligations under the agreement. The scenarios can be crafted creatively to cover or offset certain risks if the agreement is indeed terminated.

For example, one party who is investing a lot of money early in the relationship may only allow the other party to terminate the contract at will after a certain period of time has passed so that the investing party has sufficient time to recoup their investment before the agreement is terminated at will. Another example is to impose a longer termination notice requirement on the terminating party so that the non-terminating party has enough time to get their operations in order by the time the agreement ends.

If you have any concerns of getting out of a contract or if you are contemplating entering into a new contract and need help in navigating the exit signs, we are here to assist and happy to answer any questions you may have.

Michelle Eames, LLB, LLM
meames@andriessen.ca

Often we are asked by clients to register Construction Liens for them. This generally is not a problem, except for when we find out that the day of last attendance at the construction site was 44 days ago. Why is that a problem? Because of the due diligence searches that law firms do before registering a Construction Lien. Sometimes the property cannot be located on the online Registry System (Teranet) as the address known to the client is different than how it was inputted into Teranet. For this reason you need keep an close eye on your timelines and ensure you give enough notice to the ones preparing the Liens.

You have 45 days from the date of last attendance to register your Construction Lien in the Land Registry Office. If you are outside of your 45 days, then your Lien has expired and your course of action would be suing in the Court system. If you have registered the Lien within the 45 days, you then have another 45 days to perfect your Lien by issuing and registering a Certificate of Action.

Currently, Construction Liens are commenced through the Superior Court, even if the amount you are seeking is under $25,000.00. For many, this may not be worth it as only a lawyer can attend on these matters and not a paralegal. They may choose the Small Claims Court jurisdiction if the amounts are lower than $25,000.00 to recover their losses as it is more cost effective.

Good news: On December 5, 2017, Ontario passed legislation to improve the efficiency of the Construction Lien process and referring Liens under $25,000.00 to the Small Claims Court.

When will this come into effect? We aren’t sure, however, this is great news for our clients with smaller lien amounts and is more cost effective for them.

Christine Allan, Law Clerk
callan@andriessen.ca

Over the years, I have assisted vehicle owners in getting their vehicles back from parties (lien claimants) who have allegedly repaired, stored or towed their vehicle. These owners have never agreed to the amount(s) charged by the lien claimant, or someone else had their vehicle and caused the alleged amount(s) to be owed to the lien claimant.
Under the Repair and Storage Liens Act (RSLA), those who repair, store or tow a vehicle are entitled to register a lien against the title of that vehicle if payment is not made to them for their services.

There are times however, that you don’t agree with the charges and a lien claimant has possession of your vehicle, but want your car back. What do you do?

In order to get your vehicle back from a lien claimant, you are first required must pay the amount claimed into Court under Section 24 of the RSLA. By paying the amount(s) into Court, the lien claimant’s rights transfer from your vehicle to the money you paid into Court.

In addition to paying in the money into Court, an Application for Initial Certificate under Section 24 must be filed and served on the lien claimant. They must then either file an Objection, where you would then be required to pay an additional amount into Court or, within 3 days, the lien claimant must return the vehicle to you.

If an Objection is filed, and you paid the additional amount into Court, a Final Certificate is then issued by the Court which you serve on the lien claimant, who then must immediately return the vehicle to you. If they refuse to deliver the vehicle to you, a Writ of Seizure is filed with the Sheriff which allows them to get your vehicle back from them.

It is then up to the lien claimant who is claiming a right to the money you paid into Court to proceed with legal action against you for that money. If you do not get sued within ninety days, you can file a Motion with the Court and get that money back.

If you are sued for that money, it proceeds like a regular court action.

If you find yourself in a similar situation where a party has possession of your vehicle and is claiming lien rights, and you do not agree with those charges, reach out to us, and we will be more than happy to help get your vehicle back.

Murray Brown, Paralegal
mbrown@andriessen.ca

In the Province of Ontario there is a lot of talk about Access to Justice and concern about how many self-represented litigants there are in the Courts.

One of the solutions has been to increase the number of lawyers in the Province. Not surprising to me, this has not resulted in more people being represented by lawyers in Court.

There are competitions to see how technology can improve Access to Justice. Not surprising to me, this has also not resulted in more people being represented, nor better prepared for Court.

The same people who claim that lawyers are too expensive to retain for their Family Law matter are driving around in expensive cars and taking a sun drenched vacation. It’s not that people cannot afford lawyers, per se, it’s that they choose not to spend their money on retaining lawyers. Why? They don’t see the value in retaining a lawyer.

This leads me to believe that a possible solution to Access to Justice is to educate people why retaining a lawyer is worth the money. Maybe the year you’re getting divorced, you spend your vacation dollars on a lawyer and get an enforceable custody agreement?

Maybe when you’re starting a new business, you buy some clothes at Winners, instead of Saks and talk to a lawyer about what you need to do from a legal point of view. That will save you a tonne of clothing money in the future, when you’re not spending money on litigation or bankruptcy trustee fees.

There is value in paying a good lawyer. Unfortunately for us good lawyers, the bad apples are dominating the news and the public is jaded. It’s time for us to step up and explain how retaining a lawyer IS the answer to Access to Justice.

Inga B. Andriessen JD
iandriessen@andriessen.ca

When spouses decide to prepare their wills together, there may be a concern that once one of the spouses die and the surviving spouse later remarries, that the surviving spouse may not live up to the joint intentions and promises she or he made to the deceased spouse on how their estates should be divided. This concern often occurs for married couples who were previously married with children from their first marriages. There may be a concern that the surviving spouse may later decide to change his or her will and shut out the deceased spouse’s children from the first marriage or a concern that the surviving spouse later remarries and does not adequately provide for their children.

So what can a married couple do to ensure that the surviving spouse adheres to their shared intentions and to ensure that the deceased spouse’s property goes to his or hers desired beneficiaries?

One tool that can be used to minimize the risk of a surviving spouse from not honouring the shared intentions is to have both spouses enter into a Mutual Wills Agreement (“MWA”). An MWA is a contract whereby both spouses agree to not change or revoke their will without notice to the other spouse. Once the MWA is signed by both spouses and one of the spouses dies, the agreement becomes irrevocable and cannot be changed unless the change occurs by way of law or if the MWA itself permits specific instances of change.

If you have any questions about your estate planning needs or any questions about a Mutual Will Agreement and how it may help protect your estate, feel free to connect with us to learn more.

Michelle Eames, LLB, LLM
Lawyer
meames@andriessen.ca

I’m fortunate that as part of my career I have the opportunity to Mentor students, beginning at the High School level and carrying on to lawyers about to be Called to the Bar.

I’ve recently encountered some questions during Mentoring interactions that have led me to realize, some people seeking Mentorship have an inaccurate belief as to what it took to get where I am now.

I was Called to the Bar in 1993, so I’ve been doing this a while. When I started my firm, I generally worked 7 a.m. until 9:00 p.m. in order to get everything done. I couldn’t afford to hire the great support staff I have now, so a lot of things took longer as I was on my own. It was worth it.

Even today, while I’m happy to take time away from running my practice to speak to Mentees, taking that time means that I’ll be at the gym a bit later than planned, unless that meeting was already scheduled, or I’ll add a task onto my “to do” list for the following day.

Given how hard I worked in the early days and continue to work today, though not quite the 14 hour days of my youth, I was shocked to have one student recently ask me for advice on a well paying career that doesn’t require a lot of hours of work. This student believed that I don’t work a lot of hours because I’m happy.

Well, that’s not true and the key to happiness is finding a career you enjoy, so it doesn’t feel like work.

The “lack of hours” issue really grates on me. I’m not looking to dump on Millenials here, don’t worry. However, the reality is that any career, not just Law, requires you put in the work in the early stages to build a solid foundation on which you will build your career. The phrase work/life balance does include the word “work” and you cannot forget that when you’re starting out.

Like Drake, I started from the bottom, now I’m here. Not going to say, I’m at the “top” (whatever that means) but I am certainly enjoying the benefits of putting in the extra hard work in the early years, so I can work efficiently now.

Inga B. Andriessen JD
iandriessen@andriessen.ca

What is the difference between a lawyer and a paralegal? That is one of the most common questions I am asked by clients.

One of the most obvious differences between lawyers and paralegals is education; however, this blog will focus on the scope of practice of a paralegal.

Lawyers are not limited on what area(s) of law they wish to practice in. Paralegal training is nowhere near as extensive as lawyers, which limits what a paralegal can do.

The Law Society of Upper Canada authorizes licensed paralegals to represent parties in Small Claims Court, offences under the Provincial Offences Act (traffic Court, etc.), summary conviction offences (where six months’ imprisonment is the maximum penalty), and Administrative tribunals such as the Landlord and Tenant Board and the Human Rights Tribunal.

While representing a party in any of the above proceedings, a paralegal can provide legal advice regarding the subject matter of that proceeding. Paralegals can also draft pleadings and other documents that are used in the course of those proceedings, and paralegals are permitted to negotiate settlements on behalf of a party to a proceeding.

Paralegals cannot provide legal services in areas outside of the scope permitted by the Law Society that only a lawyer can provide.
Some paralegals, like lawyers practice in multiple areas of law, while others specialize in one area.

One common element between paralegals and lawyers is that must both abide by codes of conduct: the Paralegal Code of Conduct, and Rules of Professional Conduct, for lawyers. They are quite similar.

Both paralegals and lawyers serve pivotal roles which are necessary in the interests of justice.

Murray Brown
Paralegal
mbrown@andriessen.ca

Lawyers provide a service. We do many things including conducting research, advocating for our clients and providing legal opinions. While these services are essential, they are not always welcomed nor are they always appreciated.

Many businesses that are not law firms experience the same issue – you do a good job, but the customer is not happy. This leads to the question: how do I protect my business from an unhappy client or customer?

When it comes to lawyers, individuals often don’t choose to deal with a lawyer until they are required to. This can lead to clients not appreciating the information they are being given or ignoring it altogether. While this is extremely frustrating, difficult clients are a part of the profession.

There is no one way to deal with a difficult client or customer; just as in your personal life, dealing with difficult people varies depending on the person you are interacting with. However, the most important thing for a business to do is to ensure that they protect themselves from liability. For lawyers in particular, this is to protect themselves for situations where their advice is ignored.

Protecting your business is done through a CYA email which stand for, “Cover your assets” well, maybe not the last three letters .

All correspondence between you and your client or customer should be documented. After every phone call especially those where there was a substantive conversation, follow up with an email and outline what you have discussed during your call and reiterate your opinion on the matter if necessary.

Documenting conversations with customers may seem like an obvious tip and something that all businesses and lawyers should be practicing. However, as we have grown accustomed in our personal life to take things at face value, this trait often translates to our business and professional lives as well. As much as we would like to believe that our advice will be adhered to and more so that if this advice is not taken we will not be personally liable this is not always the case.

So do yourself a favour and write a CYA email, otherwise it may be C YA when you need to prove that you did what you said you would do.

Harman S. Toor JD
htoor@andriessen.ca

I previously talked about why I became a Law Clerk and my role with corporate matters in the firm. This is a big part of what I do for our clients and I wanted to expand on that thought, so that’s what today’s Blog is about.

As a Corporation, Federal or Provincial, there are a few things that need to be maintained yearly in order to be compliant, one of which is annual meetings of shareholders and directors, and the recording of them, i.e. Annual Minutes or Resolutions. We call this annual corporate record keeping.

Once the financial statements have been prepared by your Accountant and delivered to you, you should reach out to your corporate lawyer to let them know that you are ready to have with your Annual Resolutions prepared. Why wait until after you receive your financial statements? That is where you will know if any bonuses or dividends have been paid and these are required to be reflected in the Annual Resolutions as part of the record keeping.

As part of our service, we don’t wait to hear from you for your financial information. Approximately three months after your financial year end, our offices will reach out to you to see if you have received the information from your Accountant and ask questions that will assist our office in preparing the Resolutions.

Pursuant to the Ontario Business Corporations Act (OBCA), and the Canada Business Corporations Act (CBCA), a corporation is required to maintain their corporate records. Failure to do so can result in significant penalties such as fines, with the officers and directors being personally liable for those fines. For this reason, please don’t ignore the request from your corporate lawyer, which is probably more accurately a request from a Law Clerk like me.

We’re to help things run smoothly and avoid the necessity of rushing to make your Minute Book current (because of a purchase or a corporate audit), and will save you stress and money.

So next time you get that email from your lawyer asking for your year end information, get your response to them to avoid any unnecessary expense and make life easier for a Law Clerk like me !

Christine Allan
Law Clerk

callan@andriessen.ca