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February 2018
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Blog of information from Andriessen & Associates, Barristers & Solicitors – a business law firm in Toronto, Ontario, Canada

David Frum is a Canadian born, living in the USA, author who just released a book about Donald Trump that details his attacks on the pillars of Democracy in the USA. There has been a lot of press about this lately and it has all been focused on the USA.

Last week, Canada experienced another chipping away at our Canadian Democracy by our Federal Government and as lawyer, this one has me smokin’ mad.

In case you’re not Canadian, or have not heard, on February 9, 2018 a Saskatchewan farmer was acquitted of murder charges in the death of an Indigenous Youth on his property. This acquittal was by a jury of 12 non-Indigenous people, who listened to evidence presented to them for two weeks. The Jurors deliberated for over 30 hours. During the deliberations they re-heard testimony, at their request, and then returned with a not guilty verdict.

Canada’s Justice Minister, Jody Wilson-Raybould tweeted after the verdict:

” My thoughts are with the family of Colton Boushie tonight. I truly feel your pain and I hear all of your voices. As a country we can and must do better – I am committed to working everyday to ensure justice for all Canadians.”

This statement makes it clear that our Justice Minister believes that the verdict was wrong. Subsequent tweets from the Prime Minister have implied that the 12 jurors were racist.

This is political interference in the Judicial System. This is an attack on Democracy.

As lawyers we are bound by Rules of Conduct that specifically prevent us from making comments that would bring the administration of justice into disrepute. Our Minister of Justice and Prime Minster just did that.

Minister Wilson-Raybould should be removed from her role given the violation and the Law Society of BC should open a disciplinary investigation.

Inga B. Andriessen JD
iandriessen@andriessen.ca

The Canadian Federal Government is legalizing recreational marijuana use the year. The issue of marijuana use in rental units is an issue residential landlords need to be aware of.

The Ontario Provincial Government has indicated it will ban the use of recreational marijuana in public spaces and workplaces, allowing it only in private residences. The Province says that medical marijuana use will be permitted anywhere that cigarette smoking is allowed.

How does the legalization of marijuana affect the residential landlord? Any lease a landlord currently has in effect cannot be changed to reflect that marijuana use is not allowed. However, the Government advised that if your lease has a term that cigarette smoking is not permitted, that term will most likely also apply to marijuana use. It will be interesting to see how the Landlord and Tenant Board will interpret a no smoking term to marijuana use.

Many leases are unfortunately silent on smoking, which will become an issue if the landlord does not want marijuana use at their premises. It can be very expensive to repair a unit where a tenant was smoking marijuana in the unit.
When entering into a new lease with a tenant, make sure your terms are up-to-date to ensure that your investment is protected.

If you would like us to review your current leases, would like assistance in drafting a new lease for future tenants, give us a call, and we would be more than happy to assist you.

Murray S. Brown, Paralegal
mbrown@andriessen.ca

Many times when we meet with our clients to discuss their estate planning, the question of what happens if your spouse and all of your children fail to survive you, triggers a blank reaction. More often than not, this consideration of a common disaster occurring is something that tends to be overlooked.

Usually a married couple will look to the other surviving spouse to be the primary beneficiary of their estate and as the guardian of any children. But unfortunately, as we have seen time and time in the news, it is not a far-fetched possibility that a family goes on a roadtrip and experiences a fatal accident. In this scenario, if all the beneficiaries simultaneously die, who will inherit the deceased’s estate?

A common disaster provision in a will is an important clause to ensure that an alternate beneficiary is designated in the event all of your primary beneficiaries die at the same time, which is preferable than having your estate distributed in accordance with the law if you do not make such a designation.

We all want to best control the outcomes of our estates when we die and to leave legacies to our loved ones of our choosing. Having a properly drafted will covering a common disaster scenario is something we encourage everyone to think about when planning your estate, and is something we can definitely help out with.

Michelle Eames, LLB, LLM
meames@andriessen.ca

Have you noticed all the outrage going around these days? Minimum wage increase in Ontario, Diversity Statement for Lawyers, #MeToo for many women – there is a lot of outrage and protest and the message is often getting lost in all of the noise.

One topic, as a business lawyer, that I am paying close attention to is the protest around the 21% increase in minimum wage in Ontario that came into effect on January 1, 2018. Most business owners I know, in fact everyone that I have communicated with on this issue, support the increase in minimum wage. What they are opposed to was the slightly over six month’s notice they had about the increase.

If you’re a non-business owner reading this, imagine what you would do if you were told your residential rent or mortgage was increasing by 21% in slightly over six months. That’s hard to plan for in that short term cycle.

The first protest to hit the news cycle about minimum wage was the actions of two Tim Horton’s franchisees in Cobourg, Ontario.

In all the noise around the protest, the following facts seemed to have been forgotten:

1. The only control over cost that this franchisee has his the labour cost and their rent. The franchisee must purchase all of their product from Tim Horton’s parent company at the cost dictated by the parent company. The parent company also sets the prices that the franchisee can charge. This left the franchisee with a 21% increase in cost and no ability to up revenue to pay for it.

2. The franchisee in Cobourg that was demonized over their removal of benefits and refusal to continue to pay for lunches ignored the fact that these employers were providing benefits and paid breaks when they were not required to do so by law. They were a desirable employer because they were treating their employees above the legal minimum.

3. Most of the protests at the franchise locations are by Organized Labour trying to encourage the workers to join their unions. If the employees join the unions, their net pay will be reduced as they will have to pay union dues. Who wins then?

4. Many daycares increased their charges to parents by 21% effective January 1. No one is protesting those daycare centres, nor demonizing them. Why is that?

5. The Ontario Government has told businesses if they cannot absorb this sudden 21% impact in costs, they should shut down.

6. The Ontario Government announced Janaury 19, 2018 they are increasing funding to government agencies struggling due to the minimum wage increase – they’re not suggesting those agencies shut down.

Again. Remember: most businesses support increases in the minimum wage they just want a reasonable amount of time to implement them.

Sometimes valid points, and in this case, hard earned family businesses, get lost in the sound of protest.

Inga B. Andriessen, JD
iandriessen@andriessen.ca

I was recently successful representing a client at a Trial where they were sued for an alleged misrepresentation of the product they sold the plaintiff. The plaintiff purchased Product A from our client, but claimed they expected Product B. The only difference between A and B was the subtle finishing on the Product. The plaintiff also claimed that they paid the purchase price of Product B, when they were given Product A.

They believed they purchased Product B, because the Product Purchase Agreement identified it as a B, rather than A due to a typo.

The plaintiff sued for the difference in value between the A and B.

The plaintiff pled in the Plaintiff’s Claim and testified at Trial that they always intended on purchasing Product B, despite the plaintiff signing a thick stack of documents relating to the purchase of Product A, and only the Purchase Agreement identified the Product as B.

During the plaintiff’s examination in chief, the plaintiff testified that a friend allegedly told them they overpaid by the amount they sued our client for. Because this was hearsay, the statement was not considered evidence by the Judge.
During cross –examination, I asked the plaintiff what their damages were, since the paralegal representing them at the trial failed to do so. The plaintiff believed that they were entitled to the damages based upon the typo made by our client and the hearsay statement made by their friend. The plaintiff did not prove the amount of the damages they claimed to have suffered as a result of the typo.

I also questioned the plaintiff on what research they did before they bought the Product. The plaintiff had no idea that there was an A and B until after the purchase. This confirmed that the plaintiff was not truthful in their pleadings and testimony that they always believed they purchased B, because they did not know there was a difference.

Part of the plaintiff’s evidence included a bill of sale where a few months later, the plaintiff bought a brand new Product B. They claimed that it showed that the plaintiff because they never wanted the A and as result bought a new Product to replace the one purchased from our client.

What the bill of sale really showed was that they traded in Product A purchased from our client for an amount higher than purchase price from our client.

I argued that the plaintiff had mitigated their damages and had no cause of action. I also argued that even though any damages had been mitigated, the plaintiff failed to prove any damages were even suffered. The Judge agreed.

It is very important to remember that if you are going to sue, you must prove you suffered damages and the amount of those damages, or you will end up losing and paying the other side’s costs.

Murray S. Brown, Paralegal
mbrown@andriessen.ca

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