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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

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

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