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
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
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
When spouses decide to prepare their wills together, there may be a concern that once one of the spouses die and the surviving spouse later remarries, that the surviving spouse may not live up to the joint intentions and promises she or he made to the deceased spouse on how their estates should be divided. This concern often occurs for married couples who were previously married with children from their first marriages. There may be a concern that the surviving spouse may later decide to change his or her will and shut out the deceased spouse’s children from the first marriage or a concern that the surviving spouse later remarries and does not adequately provide for their children.
So what can a married couple do to ensure that the surviving spouse adheres to their shared intentions and to ensure that the deceased spouse’s property goes to his or hers desired beneficiaries?
One tool that can be used to minimize the risk of a surviving spouse from not honouring the shared intentions is to have both spouses enter into a Mutual Wills Agreement (“MWA”). An MWA is a contract whereby both spouses agree to not change or revoke their will without notice to the other spouse. Once the MWA is signed by both spouses and one of the spouses dies, the agreement becomes irrevocable and cannot be changed unless the change occurs by way of law or if the MWA itself permits specific instances of change.
If you have any questions about your estate planning needs or any questions about a Mutual Will Agreement and how it may help protect your estate, feel free to connect with us to learn more.
Michelle Eames, LLB, LLM
I’m fortunate that as part of my career I have the opportunity to Mentor students, beginning at the High School level and carrying on to lawyers about to be Called to the Bar.
I’ve recently encountered some questions during Mentoring interactions that have led me to realize, some people seeking Mentorship have an inaccurate belief as to what it took to get where I am now.
I was Called to the Bar in 1993, so I’ve been doing this a while. When I started my firm, I generally worked 7 a.m. until 9:00 p.m. in order to get everything done. I couldn’t afford to hire the great support staff I have now, so a lot of things took longer as I was on my own. It was worth it.
Even today, while I’m happy to take time away from running my practice to speak to Mentees, taking that time means that I’ll be at the gym a bit later than planned, unless that meeting was already scheduled, or I’ll add a task onto my “to do” list for the following day.
Given how hard I worked in the early days and continue to work today, though not quite the 14 hour days of my youth, I was shocked to have one student recently ask me for advice on a well paying career that doesn’t require a lot of hours of work. This student believed that I don’t work a lot of hours because I’m happy.
Well, that’s not true and the key to happiness is finding a career you enjoy, so it doesn’t feel like work.
The “lack of hours” issue really grates on me. I’m not looking to dump on Millenials here, don’t worry. However, the reality is that any career, not just Law, requires you put in the work in the early stages to build a solid foundation on which you will build your career. The phrase work/life balance does include the word “work” and you cannot forget that when you’re starting out.
Like Drake, I started from the bottom, now I’m here. Not going to say, I’m at the “top” (whatever that means) but I am certainly enjoying the benefits of putting in the extra hard work in the early years, so I can work efficiently now.
Inga B. Andriessen JD
What is the difference between a lawyer and a paralegal? That is one of the most common questions I am asked by clients.
One of the most obvious differences between lawyers and paralegals is education; however, this blog will focus on the scope of practice of a paralegal.
Lawyers are not limited on what area(s) of law they wish to practice in. Paralegal training is nowhere near as extensive as lawyers, which limits what a paralegal can do.
The Law Society of Upper Canada authorizes licensed paralegals to represent parties in Small Claims Court, offences under the Provincial Offences Act (traffic Court, etc.), summary conviction offences (where six months’ imprisonment is the maximum penalty), and Administrative tribunals such as the Landlord and Tenant Board and the Human Rights Tribunal.
While representing a party in any of the above proceedings, a paralegal can provide legal advice regarding the subject matter of that proceeding. Paralegals can also draft pleadings and other documents that are used in the course of those proceedings, and paralegals are permitted to negotiate settlements on behalf of a party to a proceeding.
Paralegals cannot provide legal services in areas outside of the scope permitted by the Law Society that only a lawyer can provide.
Some paralegals, like lawyers practice in multiple areas of law, while others specialize in one area.
One common element between paralegals and lawyers is that must both abide by codes of conduct: the Paralegal Code of Conduct, and Rules of Professional Conduct, for lawyers. They are quite similar.
Both paralegals and lawyers serve pivotal roles which are necessary in the interests of justice.
Lawyers provide a service. We do many things including conducting research, advocating for our clients and providing legal opinions. While these services are essential, they are not always welcomed nor are they always appreciated.
Many businesses that are not law firms experience the same issue – you do a good job, but the customer is not happy. This leads to the question: how do I protect my business from an unhappy client or customer?
When it comes to lawyers, individuals often don’t choose to deal with a lawyer until they are required to. This can lead to clients not appreciating the information they are being given or ignoring it altogether. While this is extremely frustrating, difficult clients are a part of the profession.
There is no one way to deal with a difficult client or customer; just as in your personal life, dealing with difficult people varies depending on the person you are interacting with. However, the most important thing for a business to do is to ensure that they protect themselves from liability. For lawyers in particular, this is to protect themselves for situations where their advice is ignored.
Protecting your business is done through a CYA email which stand for, “Cover your assets” well, maybe not the last three letters
All correspondence between you and your client or customer should be documented. After every phone call especially those where there was a substantive conversation, follow up with an email and outline what you have discussed during your call and reiterate your opinion on the matter if necessary.
Documenting conversations with customers may seem like an obvious tip and something that all businesses and lawyers should be practicing. However, as we have grown accustomed in our personal life to take things at face value, this trait often translates to our business and professional lives as well. As much as we would like to believe that our advice will be adhered to and more so that if this advice is not taken we will not be personally liable this is not always the case.
So do yourself a favour and write a CYA email, otherwise it may be C YA when you need to prove that you did what you said you would do.
Harman S. Toor JD
I previously talked about why I became a Law Clerk and my role with corporate matters in the firm. This is a big part of what I do for our clients and I wanted to expand on that thought, so that’s what today’s Blog is about.
As a Corporation, Federal or Provincial, there are a few things that need to be maintained yearly in order to be compliant, one of which is annual meetings of shareholders and directors, and the recording of them, i.e. Annual Minutes or Resolutions. We call this annual corporate record keeping.
Once the financial statements have been prepared by your Accountant and delivered to you, you should reach out to your corporate lawyer to let them know that you are ready to have with your Annual Resolutions prepared. Why wait until after you receive your financial statements? That is where you will know if any bonuses or dividends have been paid and these are required to be reflected in the Annual Resolutions as part of the record keeping.
As part of our service, we don’t wait to hear from you for your financial information. Approximately three months after your financial year end, our offices will reach out to you to see if you have received the information from your Accountant and ask questions that will assist our office in preparing the Resolutions.
Pursuant to the Ontario Business Corporations Act (OBCA), and the Canada Business Corporations Act (CBCA), a corporation is required to maintain their corporate records. Failure to do so can result in significant penalties such as fines, with the officers and directors being personally liable for those fines. For this reason, please don’t ignore the request from your corporate lawyer, which is probably more accurately a request from a Law Clerk like me.
We’re to help things run smoothly and avoid the necessity of rushing to make your Minute Book current (because of a purchase or a corporate audit), and will save you stress and money.
So next time you get that email from your lawyer asking for your year end information, get your response to them to avoid any unnecessary expense and make life easier for a Law Clerk like me !
Back in July, the Liberal government issued draft legislation for proposed tax reforms aimed at private incorporated businesses that fell primarily into 4 categories: Income splitting, Capital gains exemption, Capital gains within a corporate group, and Deferral of tax using private corporations. These contentious tax reform proposals would not only impact the “rich doctors” as the Feds messaging pushed, but will have a greater impact of hurting small businesses, which make up 98% of the businesses across Canada.
A few weeks ago, Trudeau and Morneau kicked off a series of tax announcements to share the Liberal’s final position on the proposed changes following the anger and outcry from the business community. The Liberal government has decided to abandon the proposed changes to the capital gains exemption but will move forward with a modified version of income splitting or “sprinkling” which will require business owners to prove that they are splitting their income with family members who “meaningfully contribute” to the business. It remains to be seen how businesses will need to prove this.
Proposed rules to discourage using corporations for passive investing will move forward with a new threshold. The government intends to allow incorporated businesses to generate up to $50,000 a year in future passive-investment income that would not be subject to a new tax. However, it is unclear how future gains on currently held investments, typically generated for example through dividend payments or interest, will be treated. Although Morneau believes that small businesses will not be impacted by this measure since 85% of small businesses have no passive investment income at all, he is overlooking an important consideration that this threshold may be too low to help small companies save to grow and to create more opportunities. There could be a looming bigger issue down the road as a result.
Lastly, the Trudeau government is abandoning the proposed tax reform that would have restricted the conversion of income into capital gains. This initial tax proposal change caused a huge concern for farmers and fishers as it would have made it more difficult for farmers and other business owners to pass on their businesses to their children.
The feds have tried to sweeten the deal by slashing the small business tax rate from 10.5% to 9% by January 1, 2019. But, is keeping their 2015 election campaign promise enough for small businesses to happily jump on the bandwagon and to move forward with these changes? If you have not already done so, we recommend that you contact your Accountant to see if you and your business may be impacted by these changes. Please also feel free to reach out to us if you require any corporate changes following these announcements.
Michelle Eames, LLB, LLM
The title of this Blog is often used in terms of data management to mean that if you input garbage your results will not be impressive.
As a litigator, this also applies to the information provided to me by my clients. If my client does not give me full disclosure, then that is “garbage in” and the result likely will be “garbage out” when the information inevitably comes out through the various steps in the litigation. This is why most litigators, certainly all good litigators like us, are adamant: give us your full disclosure – we will decide what needs to be produced to the opposing party.
Similarly, I’m reading a lot in the news stream (again) about people walking out of rooms when a person they disagree with starts speaking. Wow. That is a recipe for garbage in/garbage out in my opinion.
What I mean by that is that if you refuse to hear the position of someone who disagrees with you, you’re only going to be surrounded by your position and that is going to become an echo chamber. Ultimately, if you’re only hearing one view, you only understand one view and that won’t let you evaluate opposing views from a calm, rational perspective as you won’t be used to hearing them.
I’m particularly concerned when I hear this in government – particularly in the Canadian Federal Government. I understand the Liberal members of the Committee on Women recently walked out because they didn’t like who the opposition appointed to the Committee. I personally don’t agree with the views held by the opposition member that led to the walkout, however, I support their right to have their personal views and am concerned that the Government walking out of the committee is not democracy in action. It’s the opposite.
So. Garbage in/garbage out. Let’s take out the garbage – it’s better for everyone.
Inga B. Andriessen JD