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andriessenlaw

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

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

When I decided to go British Columbia for law school, I was met with excitement and congratulated for starting a new chapter in life. When I decided to article and work in BC, I was met with skepticism. Not because there is anything wrong with BC (I do prefer the city to the mountains but they both have their benefits) but because the requirements for the eventual transition back to practice in Ontario for most individuals were murky at best.

Prior to practicing in BC, I did research to ensure that my eventual transition home would be as smooth as possible and through the National Mobility Agreement, it was.

The National Mobility Agreement allows for lawyers from reciprocating jurisdictions to apply for permanent transfer to another province or territory.

In Ontario, lawyers from reciprocating jurisdictions who are in good standing and entitled to practice in their home jurisdiction may apply to be licensed in Ontario. These requirements may vary province to province but generally follow a similar outline.
An applicant must complete the application, read the required materials and then go through the licensing process. While waiting to be licensed a lawyer may practice in Ontario if they are licensed in their home jurisdiction, are in good standing, have liability insurance and receive a temporary permit to practice.

So, while the process of law school, articles, and working may seem daunting, transferring your license is not. So, if the opportunity to explore Canada through your legal profession presents itself, jump on it; even if it’s just to realize that mountains aren’t all they’re cracked up to be.

Harman S. Toor JD
htoor@andriessen.ca

There is a lot written these days about failure to innovate in business being an invitation to the end of that business. There is a lot of truth in that, but that is not what this Blog is about. This Blog is about Business Law and in particular, Business Litigation. There are many things that are done because we’ve always done them that way and that is not a great reason for us to keep doing them.

I suppose there is a danger this Blog could quickly turn into a Rant. I seem to get more positive comments about my Rants, rather than the “informative” Blogs, so maybe I’ll just let it veer in that direction …. with that in mind, here are some things that need to change:

1. When lawyers, who have been on the file since the law suit started, meet at discovery, pre-trial, etc., there is no need to exchange business cards. All of our information is on the court documents. We’ve usually been in contact for months at that point. Your business card is not identification and it is not needed. When you give it to me in that situation, while I’ll take it, it’s going to be recycled pretty quickly.

2. Assignment Court. This is a step in a lawsuit that needs to be eliminated across the entire province. For non-lawyers, let me explain with this is: it is a day your lawyer goes to Court, must wear Robes (so you cannot send a student, who bills at a lower rate) and agrees with the other lawyer on a date for trial. Thankfully, many jurisdictions in Ontario have procedures in place that let lawyers try to agree on dates ahead of time and avoid Assignment Court, however, many don’t and it’s time to get rid of this expensive step completely.

3. Telling everyone to completely turn cell phones off in Court is not necessary. The reporting equipment has improved. We can leave phones on (on silent mode) while Court is in session. This particularly matters on a “Motions Court” day when a lawyer can be in the Court Room for four to five hours simply waiting to be heard. Let lawyers be productive when there is no reason to stop them from doing so.

4. Having a trial date that is “the week of” needs to end until the R. v. Jordan backup is resolved. That was really technical wasn’t it? Let me explain. R. v. Jordan is a Supreme Court of Canada decision that requires criminal charges to have a trial within two years (I think, I’m not a criminal lawyer, so I could be wrong). This has put a priority on criminal cases being heard. This means that one day civil matters, which are put on a the list to be heard during a specific week are often not heard, because the criminal cases take priority. I recently had one case adjourned for the second time (first from December, now from June) because it was on a list with criminal cases.
This backup is caused in large part because new Judges are not being appointed and we need them desperately.

I’ve got more, but then I’d have to write a Blog about Blogs that are Rants and just go on forever and make the writer sound like an old lady yelling at kids to get off her lawn. So I’ll stop now. You’re welcome.

Inga B. Andriessen JD
iandriessen@andriessen.ca

I’m not intending to trample any American pride by posting this ode to Canada but honestly, our country is awesome.

As a Business Law firm, we are able to point out when we disagree with the government and no one tramples our right to do this.

As advocates for our clients, we are able to argue before the courts in an environment where we know the judiciary is not corrupt.

As a firm made up of people from many ethnic backgrounds, religions and sexual orientations, we are able to get along and be ourselves without fear of persecution.

As an individual who enjoys wide open spaces, our parks, rivers and lakes are the best place to unwind we could ever ask for.

Oh Canada. You’re awesome !

Inga B. Andriessen JD
iandriessen@andriessen.ca

Seven years ago, I decided I didn’t like the way I have traditionally answered the question: “What do you do?”    My answer to that point had been “I”m a corporate/commercial lawyer”.  

If you were not a lawyer, this response generally led to blank stares and for those brave enough, the follow up question “what is that?”

So, seven years ago I decided to lead with my strength, which is taking complicated issues and making them simple. As a result, I branded our firm Business Lawyers and there have been a lot fewer blank stares.

Corporate/Commercial Law is a technical definition.  It is a Law School definition and one that we boring lawyer types understand – but it does not embrace the energy of what we really do: we’re business lawyers.

Our firm is now made up of Business Litigators and Business Transaction lawyers. I personally litigate about 70% of the time. Harman Toor, will be joining us July 4, 2017 as a litigator and we are really excited to have him start. Murray Brown, our paralegal handles Small Claims matters for our business clients in an efficient and flat fee manner.

As a Business Transaction lawyer, Michelle Eames of our firm advises businesses on all aspects of their work – from start up to wind up and the fun parts in between, including contracts, commercial leasing and corporate wills. For 30% of my time, I handle contracts, leases and Trademark registrations – the building up stuff, instead of the tearing down stuff of litigation .

Everyone in our firm is business focused and excited to work with companies to help them achieve the goals they have set out for themselves. So, looking for a Business Law firm? Look no further, because we’re right here.

Inga B. Andriessen, JD
iandriessen@andriessen.ca