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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

I hope you were not expecting travel tips when you clicked on the link to this Blog. While I do have some (Curacao for scuba diving, Sun Peaks for downhill skiing) that is not what I want to talk about today. Today we’re talking about how employers handle vacations for their employees.

In Ontario, after working for one year, an employee may take two weeks vacation. In theory, the 4% per paycheque is growing in an account with the employer and when the employee takes that vacation, the 4% fund has the money drawn from it to cover the pay during that time. In reality, many employers allow an employee to continue working and simply pay out the 4%, either each pay cheque or as a lump sum at the end of the year.

Paying employees their money instead of requiring them to take time off is a bad idea. It’s bad for the employee as they do not get a break from work, which can lead to illness, stress and/or boredom. All of the latter items do not lead to productivity for the employer, which is why it is also a bad idea for the employer.

All employers should require that vacation be taken as such and should have rules in place as to how many weeks in advance the vacation must be requested. A smart employer will also have written rules regarding whose requests get priority – trust me, you don’t want to have to “come up” with a reason why Sally gets the vacation time instead of Jane.

Now. For all the talk above about employees, let’s talk about the employers.

Hey, you! The backbone of the Canadian economy. The people who put personal assets on the line to fund the business. The people who stay up at night worrying about the employees: you need a vacation too. A real one. One where you put on a do not disturb bouncer and do not deal with the office.

The business thrives when employers and employees are engaged and motivated to work. We all need to take vacations, so let’s get to it !

Inga B. Andriessen JD
iandriessen@andriessen.ca

One of the things our firm is great at is helping businesses get paid. By the time we’re involved, it’s usually a litigation matter, however, we like to encourage businesses to take steps to protect themselves before it lands on our desks. This is why we created 30-60-90 Sue® – it’s our program to help you accelerate the collection of your receivables.

Without giving away all of our secrets, I’m happy to highlight a few ways you can do your part to get paid:

1. Get it in writing. If you’re selling a good or service over time, use a contract. If you’re selling something on the spot, provide a receipt.

2. If you are giving terms of payment, follow up immediately the day after those terms expire to see where your payment is.

3. Accept Visa, Direct Deposit and e-transfer: these methods are the path of least resistance for many and help get you paid faster.

4. Sue, particularly if you have a group of customers who know each other and talk to each other. Suing one customer will quickly bring the rest of your receivables into line.

We’re here to help you get paid: reach out if you need more info. Much of what we do collection wise is on a flat fee basis, so you know what your cost is before you take steps.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Last week I enjoyed the privilege of Judging a High School Mock Trial tournament. I have been doing this for many years and it is a lot of fun. I don’t get paid for it (hence the volunteering part of this Blog post) and as a result I don’t get to bill for the time I’m volunteering and I’m fine with that.

What I’m not fine with is being attacked by a teacher coach, who is presumably being paid to be at the event, particularly when the teacher is upset about constructive criticism given to a team member who ran afoul of the tournament rules.

I’m sure that teacher is not going to read today’s Blog, but other teachers may and all I’m asking is that you appreciate the time that is being given up for the event to take place. You may not like the result. You may not like the feedback, but realize it’s a Mock Trial. There will be a winner and a loser. That is not the Judge’s fault.

No good deed goes unpunished. I’m thinking of adopting that as my new personal mantra.

Regardless, I’ll keep volunteering, because ultimately, it’s about sharing my passion and enthusiasm for the law with students and no cranky teacher is going to take that away.

Inga B. Andriessen JD
iandriessen@andriessen.ca

Ah, Independent Legal Advice (“ILA”) . That throw away line in many agreements where people sign saying they have had an opportunity to have it, but have chosen not to.

We recently had a great example of the right way to use ILA when we were retained to give ILA to a shareholder on a Shareholder’s Agreement that they had largely drafted on their own. Despite the fact that this shareholder had been the principal instructor to the corporation’s lawyer, and was intimately familiar with most of the terms of the agreement, the corporation’s lawyer still thought it would benefit all of the shareholders to get ILA – not just to waive it as I described in the first line of this Blog.

The shareholder was convinced that ILA would add value even if only to have a fresh set of eyes review the agreement. In our review, we offered more than that; considering various critical events from the shareholder’s individual perspective was very different than the perspective of corporate representative they had while preparing the agreement.

Getting independent legal advice is not cheap, but it is cheaper than being stuck with legal obligations you don’t understand and then have to retain a litigator to handle. If you are entering into an agreement of any significance (including potential future liabilities), you absolutely must have legal counsel review the agreement and confirm that your interests are protected (or that your unprotected interests are known to you). It’s that simple.

Inga B. Andriessen JD
iandriessen@andriessen.ca