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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

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

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

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

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