Keeping up with Technology (not to be confused with KUWTK)

I’m going to discuss two ways of keeping up with technology, one being staying safe and the other being efficient programs.  This may be one of those blogs where you want to just yawn, but if you are client of the firm, we have your files and we just want you to know that we do our best to keep everything safe and secure.

We keep hearing horror stories of emails being hacked and files being held for ransom.  This scares me from both a personal and working point of view.  Why, because the cyber criminals are getting smarter as the anti-viruses are getting stronger.  They just seem to be one step ahead of us.

As a law firm, we do not hold ourselves out as being proficient with computers and programs, however, we strive on ensuring that our emails and stored files are secure.  How do we do that?  By having a good IT department. 

A good IT department is vital to any company to ensure that their systems and networks remain safe and secure.  They ensure we are equipped with the knowledge to know the difference between a legitimate email and a phishing email.

Have you ever received an email from your “boss”, but the email address just didn’t look right, or the tone of it was just a bit off?  I have, and that email was asking me to send a money transfer. 

Thankfully our IT department has made sure that we know what to look for in a phishing email.  IT department was contacted and we have not received an email of that nature since.  That doesn’t mean that we don’t get those kinds of emails, but they are few and far between.

When it comes to programs that could make our life easier, our IT will make us aware of those new and upcoming products that could be useful.  Let me tell you, we have had some lifesaver programs come our way. 

Additionally, our systems are constantly updated to ensure everything is running smoothly.  Another thing that we consider is the capability of working from home and keeping those computers, and mobile devices secure.  Our IT also manages those systems and makes sure those are all up to par as well. 

So just know, we are keeping our emails secure and doing our best to keep your files safe.

How is your IT department?  Do they know your business and know what you need?  Ours does and that is what makes our jobs just a little bit easier.  

Christine Allan, Law Clerk

callan@andriessen.ca

Should you Trust a Henson Trust?

A Henson Trust, also known as an “Absolute Discretionary Trust,” is a useful tool when estate planning for a beneficiary that is living with a disability. This Trust allows testators to plan for the care of their loved ones, while preserving their beneficiary’s rights to continue collecting government benefits, like the Ontario Disability Support Program (“ODSP”).

What sets this Trust apart from others is one key feature: this Trust only provides the beneficiary with a hope, and not an enforceable right, to distribution from the estate. This means that 100% of the power rests with the appointed Trustee. Surprising right? This means that whoever is selected in the Will to be the trustee of a Henson Trust, must be someone the testator really trusts (no pun intended!). Trustees of discretionary trusts, such as this one, have absolute discretion over how the trust is used to assist and care of the beneficiary, so it’s vital that the testator choose wisely.

You may be wondering why this Trust gives absolute power to the Trustee, and why that’s a good thing. It’s simple really – it’s because the total combined amount of a trust, plus the cash surrender value of any life insurance policies, owned by an ODSP entitled beneficiary must not exceed $100,000. These are considered “assets” of the beneficiary and can negatively impact the beneficiaries ODSP entitlements. A true absolute discretionary trust, like a Henson Trust, is not considered an asset for ODSP purposes, since absolute discretion lies with the trustee and not the beneficiary. This means that the monetary value of this type of trust can be over $100,000.

Beware! Payments from this Trust to the beneficiary cannot total more than $10,000 within a 12-month period – anything over this amount and the beneficiary risks deductions from their ODSP benefits.    

Remember that while a Henson Trust can help in safeguarding the ODSP benefits of a beneficiary, because of the absolute discretion provided to the Trustee, the right Trustee must be appointed for the job!

Robin K. Mann, JD, Associate Lawyer

rmann@andriessen.ca

The Importance of Timing in Business

“Timing is everything” is a very common expression and in business, that comes into play more times than you can imagine.

The timing of when to incorporate is one of the first timing issues a business often runs into.  An Accountant may counsel you to wait until you’re earning enough income to make it worthwhile.  A lawyer will likely counsel you to incorporate right away to protect your personal assets from liability

The timing of when an employment contract is an important issue a business runs into once it is underway.  If the employee signs it on or after their first day of work, it doesn’t count.  That is often an expensive timing lesson an employer learns after being sued.

Since the recent changes to the Canadian Trade-Mark Act, the timing of when you apply for a Trade-mark in Canada matters.  It’s no longer first use that wins, it’s first to register.

There are many more examples of when timing matters in business law.  If you’re not sure if there is a timing issue on a step you’re contemplating, you could be in for an expensive lesson. 

The most important timing issue is hiring a business lawyer and calling them before you take a step that you shouldn’t have.

Don’t have a business lawyer?  We’re happy to help!

Inga B. Andriessen, JD

The Frustrations with Personal Service

The Small Claims Court is a fickle creature. The Rules of the Small Claims Court, albeit are similar to those of the Rules of Civil Procedure in Superior Court, but not all the Rules are treated the same.

One of those Rules is personal service.  Personal service must be effected when serving a Plaintiff’s Claim, Notice of Examination and Notice of Contempt Hearing. 

Alternates to personal service are available for the service of the Plaintiff’s Claim or Notice of Examination.  An adult of the household can be served, and a copy mailed to the debtor.

If an alternate to personal service cannot be carried out, obtaining an Order for Substitutional Service of the Plaintiff’s Claim or Notice of Examination is easy – make several attempts at personal service, bring a Motion stating that you believe that if the Plaintiff’s Claim or Notice of Examination is mailed to the debtors residence, it will come to their attention and most likely you got your Order.

Not at all possible for a Notice of Contempt Hearing.

A Notice of Contempt Hearing is issued when a debtor fails to attend the Notice of Examination.  Failure to attend the Contempt Hearing, can result in jail time for a debtor, so the Small Claims Court stresses the importance of personal service.

But what can you do if the debtor evades service and you cannot serve them personally?  What if family members assist with the evasion of service of their relative?

The short answer is nothing.  I recently unsuccessfully made the case for an alternate to personal service of a Notice of Contempt Hearing, after our process server attempted up to 15 (yes, 15) times to serve a debtor whose mother and father both assisted in their child evading service.

Although the Deputy Judge was very sympathetic, they advised that no Small Claims Court Judge would allow substitutional service because of the potential for incarceration. 

It is incredibly frustrating when a client incurs the cost of a process server, spending hundreds of dollars if not more to try to serve someone when they evade service, and not a thing will be done by the Court. 

Alas, we continue our attempts to serve the debtor personally in hopes we will be successful.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

We are a Positive Space: what does that mean?

While I was on vacation, I saw a tweet from our firm posting a picture with the Positive Space sign.  You may have seen it and thought to yourself “What is that?”  When it was discussed in the firm about putting up the sign, I didn’t know what it actually meant, and to what extent it would help the building. 

By saying that our firm is a Positive Space means that we are committed to creating a safe and welcoming space that is inclusive and free from discrimination based on sexual orientation, gender identify and gender expression.  It’s a sign that we, in our office, are supportive of the 2SWe aLGBTTIQQ community.

People can come and ask us for help if they felt uncomfortable.  We would support them in what they needed to the best that we could, whether it would be to make a phone call for them, or as we are in building that does not have gender neutral washroom, accompany them to the washroom.    

Why is this so important?  Our firm deals with employment issues on a regular basis and we believe it’s important to practice what we preach.  While we are business law firm and represent employers, we are aware of employees complaints and because of that, we do our best to ensure that the employers we represent do not violate anyone’s Human Rights.  If we are to make sure that the employers are doing their best, then we need to do our best.

In writing this blog I had to do some research on the Positive Space movement and found out it has been around for about 20 years.  As I’m just hearing about this now, I thought it would be a good topic to write on as chances are, you are just hearing about this too.

Christine Allan, Law Clerk

callan@andriessen.ca

Invoice > Handshake

Gone are the days when a handshake was enough to enforce deals between vendors and buyers. Well at least we hope those days are gone. If you’re still doing handshake deals, stop right now! You are a business owner, a potential titan of industry, so in the very least you better be using invoices.   

All businesses, both large and small, should be providing invoices to customers for all goods and services they provide. An invoice is a document that details the business transaction between you and your customer or client. Aside from identifying the parties in the transaction, it details the goods or services to be provided, sets out pricing, delivery dates, and payment terms. This little piece of paper can save you from a lot of headache down the road if a buyer doesn’t want to pay you anymore.

When drafting an invoice, it is important to use simple clear terms to avoid any ambiguity. If you don’t have a go-to contract when dealing with customers, we recommend setting out some terms and conditions directly on the invoices you provide your customers or clients. This includes outlining payment terms, performance dates, invoice disputes, cancellations, and liability – that’s in the very least!   

It’s easy, especially for new business owners, to forget to invoice. But remember, this is your responsibility and your way of getting paid for your work. If you don’t have a contract in place between you and the party you are dealing with, and they are refusing to pay, an invoice can demonstrate to a court of law that you are owed payment. So, invoice up already!

Robin K. Mann, JD

rmann@andriessen.ca

Is it Archaic or Important ?

I was recently interviewed by the Lawyer’s Daily to comment on modernization in the BC Court System.  On the same day that was published, a client bemoaned the fact that the Rules of Civil Procure required original signed affidavits to file with the Ontario Court. 

My initial thought is yes, electronic signatures are a good idea, but then I remembered a recent file I had where the individual litigant on the other side of the file created a fake Court Order. They’ve been convicted and sentenced, which is a good thing, but it made me wonder: if we move to electronic signatures on Court documents, how many more fake Court Orders will there be?

I am 1000% in favour of modernization of the Court system in Ontario.  The more I can electronically file, the better.  However, in our push for modernization, we must ensure that what we’re getting rid of is not an important thing to keep.

An original signature on an affidavit is likely an important thing to keep.  This ensures that affidavits are signed by the person swearing them to be true.  It ensures that the person who claims to have witnessed that signature actually did so.  If we eliminate the original signatures on these documents, are we downplaying the importance of “telling the truth” in these documents?  My concern is we are.

Think to the last time you had to agree to a term and condition on a website.  Did you read it carefully to ensure you agreed with every point?  You likely didn’t.   You scrolled to the bottom, clicked “I accept” and were on your way. 

Treating an affidavit, which is evidence that goes before the Court, the same way we treat iTunes terms and conditions, is likely not helpful in advancing Justice.  Justice is not just about speed.  It’s about “getting it right”.

All of the above, unfortunately is likely a wasted opinion.   I fully expect that for the rest of my legal career, I will be required to have a fax machine in order to satisfy the requirements of our non-modernized Court system.  I hope I’m wrong, but I don’t think I am.

Inga B. Andriessen, JD

Did you hire an Employee or an Independent Contractor?

Some employers misclassify their employees as independent contractors. Now this misclassification can be the result of an innocent mistake, but it can (in the case of some sneaky business owners) be an intentional act meant to deny their employees protections under the Employment Standards Act, 2000 (“the ESA”). What do we say to these business owners? It’s not worth it!

Whether intentional or not, the employer could be issued a notice of contravention or even face prosecution by an employment standards officer. The employer could also face other legal exposure if they continue treating an employee as an independent contractor. So yes, it is important to know the difference between an employee and an independent contractor in your hiring practices.

Unlike independent contractors, employees have rights and protections under the ESA, such as: minimum wage guarantees, overtime pay, public holidays, and vacation pay. Rights under the ESA are guaranteed to employees, whether they sign an employment agreement or not.

Independent contractors on the other hand, as we mentioned, do not benefit from the ESA – this is why some employers will try to pass off employees as contractors. Tsk! Tsk! Don’t do it. Understand the difference and hire accordingly.

So what is the difference?

A worker can be seen as an independent contractor if they:

  1. Own the tools and equipment they use for their work;
  2. Set their own hours and work schedule;
  3. Submit invoices to the employer;
  4. Make a profit;
  5. Have the ability to subcontract out their work; and
  6. Cannot be disciplined by the employer.

This may seem like a neat little test but remember, these are not definitive! A business owner may find that their employee/independent contractor meets some of these items, but not all. 

If you find yourself in this situation, consult a lawyer (*cough* a business lawyer is probably best) to ensure you understand and comply with the employment status of those you hire, and have the proper agreement drawn up.   

Robin K. Mann, JD

Associate Lawyer

rmann@andriesen.ca

Should that Doggy Be in the Window ?

Lately it seems that pets are everywhere.   As both a Business Lawyer and an individual with a severe animal allergy, I notice it more than the average person as if a pet is in a business, I cannot breathe in that business.    I like pets, I just like breathing more.

If you’re considering starting a business, it’s important you know if you’re allowed to have pets in your business.  Notice, I said pets, I didn’t say animals.  Yes, that’s a boring, specific law thing, but it matters.

Certain animals, such as fish, are permitted in businesses.  Other animals, such as dogs are only allowed in certain businesses if they are service animal.  Service animals are not the same as emotional support animals.  Confused yet?  Just wait, it gets worse.

A Service Animal must meet one of two conditions, defined in the Accessibility for Ontarians with Disabilities Act, in order be a service animal:

  1. The animal is easily identifiable as relating to the disability; or
  2. The individual with the animal can provide documentation from a regulated health professional confirming the animal is required due to a disability.

Even if the animal qualifies as a Service Animal, it is prohibited from being in a food preparation area in a business. 

Some of the types of businesses that are specifically prohibited from having animals, other than Service Animals are:   hair salons, spas, barbershops, and tattoo parlours.   All of these businesses are regulated under the Ontario Health Protection and Promotion Act.   If you violate this Act, you could find your business on a published list of violators for two years – not a great way to start a business.

Make sure before welcoming animals into your buinsess, you know what laws you have to comply with, so you avoid the public shaming of the Health Inspection list. If unsure, contact a business lawyer.

Inga B. Andriessen JD

iandriessen@andriessen.ca

Before

Privacy Matters – Do you know where your lawyers store YOUR data?

We all know about the Personal Information Protection and Electronic Documents Act and the Privacy Act, and the importance and maintaining an individual’s privacy.  But do you know the lengths that law firms in Ontario take to ensure we keep your information private?

When a client retains a lawyer, that lawyer is required to obtain a range of information from that individual and to keep photocopies of identification of that client.  This is part of verifying identity.  How as a law firm are we expected to ensure the information is stored in a safe and confidential manner?  I can tell you how – organization.

A law firm must be organized in order to run efficiently, so it was not a hard task to ensure the information collected was being stored safely and efficiently.  An organized file room and filing system makes life easy for us in the firm. 

With technology progressing, more things are being done on-line and through emails.  Thanks to being able to send encrypted files and using “new tech videoconferencing” such as Skype or Facetime,  firms are now able to verify identifies with ease making it more convenient for the client. 

How do you store your files on servers safely and effectively? 

Everyone has heard of the “cloud”, but the cloud that is over our office right now threatening rain does not actually have our information stored it in.   Our files are stored in a manner that we can access securely, even if we are not in the office on our desk computers.  These are drives that are heavily loaded with firewalls that will prevents someone who shouldn’t be there from getting access to your files.  Everyone may not be aware of the fact that law firms in Canada must store their files and information in Canada only.  This is very important. 

Like many professions, law firms do get audited from time to time, and guaranteed they want to see the firms’ privacy policy and how they keep everything confidential and secure.  It’s no longer employees signing a document agreeing to maintain confidentiality, it now goes further. 

So don’t lose any sleep tonight, your information in our firm is kept under lock and key.

Christine Allan, Law Clerk

callan@andriessen.ca