How to keep things Personal and Professional

You get this great idea for a company and decide to start up, make business cards, create an email and start doing business.  It’s a great idea and your company starts to thrive.  Oh no, something bad happened and now you are being sued personally.  Next thing you know there is a Writ filed and they are trying to sell your family home. 

The scenario above is the “worst case” scenario but it happens more than you think.  How can you protect yourself and your family home?   You need to incorporate.

Sometimes coming up with a specific name can be difficult, so you could always start with a numbered company.   Just because you have a numbered company, doesn’t mean that you can’t operate with a name.  For example, I could incorporate 1234567 Ontario Inc. and have a designing business and then use the name Allan Designs on my business cards etc.  However, you have to make sure you do it correctly. 

Lots of times people will register a sole proprietor business name but they don’t understand that doesn’t protect them personally from liability for the business’ actions.   When they realize this, they will then incorporate and the corporation takes over the busines name.  When that happens, it is important that the sole proprietor business name gets cancelled and then registering the name with the corporation. 

Of course, there are certain things that directors of a corporation can still be liable for such as failure to remit taxes, pay employee wages, environmental issues and now most recently, CASL violations. 

While incorporating doesn’t fix everything, it sure gives you a bit more protection than being a sole proprietor. 

Christine Allan, Law Clerk

The Family Cottage – Inherited Dream or Future Nightmare?

The crisp autumn air isn’t just a reminder that summer is over, but also a signal to an end of cottage season for some.

Most that invest in their own cottage do it with a mind to “keep it in the family.” Watching your kids grow up at the cottage with the thought that you will one day pass it to them to see their own children enjoy it, is a beautiful dream. But the reality is that passing the family cottage to your kids can be more complicated than it seems, and when done incorrectly can turn your idyllic dream into an utter nightmare.

With some clever estate planning you can rest assured that after you’re gone, your family will be swimming in the lake by the cottage, and not swimming in tax-related debt. You see what we did there? You get the point.

Well, there are a number of ways to minimize tax consequences when passing on your cottage. Each has its pro and cons, and each only works in certain situations.  

First, you can consider gifting the cottage to your child or beneficiary before you die. This let’s you pay the capital gains tax on it, so your estate or your child don’t have to. The drawback? The cottage doesn’t belong to you anymore. Your kid is free to sell it, not invite you over, or even lose it in a messy divorce.   

Second, if you don’t want to lose ownership rights while you are alive, you can gift it in your will. This means your kids or beneficiary will get ownership upon your death. Again, this means that your beneficiary can sell your beloved cottage, and your dreams of having your grandchildren spend summers there may come to nothing. However, even this option will likely attract estate administration tax, which will be paid for by your estate. Death and taxes, am I right?         

Third, you could set up a cottage trust. This will give you some control over the cottage after you’ve passed away. The trust then holds the cottage for the enjoyment of your beneficiaries. You can even allocate funds which can be used to maintain the property. The trust also protects the cottage from any legal disputes that may arise after you’re gone, including bankruptcy, liens and divorce. The catch? When it comes to discretionary trusts, there is what is called a “deemed disposition.” This means that every 21 years capital gains tax becomes payable on the cottage. If there isn’t enough to pay the taxes, the cottage has to be sold.

The above are overly simplified theoretical options for dealing with your cottage. In reality, estate planning is far more complicated and requires legal assistance. 

However, as you can see, you have options. You need to consider what works best in your situation, as it’s not a “one-size fits all.” I mean, you know your family better than we do, so keep them in mind when considering how to estate plan. Let’s put it this way, it’s hard enough for some parents to get their kids to listen to them now, you think it’ll be easier to dictate terms from the grave?

Robin K. Mann, JD, Associate Lawyer

The Importance of Naming the Proper Parties in a Lawsuit

One of the most common mistakes made in drafting pleadings by both self represented individuals and legal representatives is failing to correctly name or spell the party’s name.

Some legal representatives are too lazy to conduct a few searches to make sure they name the proper party in hopes that the party being sued will correct them.  Self represented individuals may not know any better.

When I proceed with a claim against a Corporation, the first thing I do is obtain a Corporation Profile Report – this allows me to confirm the legal name of that Corporation.

Some Corporations operate using a business or trade name.  In that case, I would do a Business Names Search to find out the name of the Corporation that owns that business or trade name.

When you enter into a contract with a company that uses a trade name, rather than a Corporation name or number, make sure you get that information upfront – the more you know about them now will help you (and your lawyer/paralegal) in the future.

Another mistake people make when naming parties is spelling the name of that company or individual correctly. 

So, what are the repercussions of naming the party incorrectly or not spelling their name right?

Well, if you obtain a judgment against them, your judgment is useless.

A judgment with the debtor’s name spelt wrong, or the legal entity who owns a business trade name left out of the judgment cannot be successfully enforced.

If you attempt to garnish a bank account of a company or individual and the name on your judgment is not the same as the name on the account, the bank will simply return your Garnishee’s Statement with a stamp that says “no account holder at this branch by that name.”

What would you have to do to fix your mistake? 

You would need to bring a Motion to set aside your judgment and obtain leave to amend your Plaintiff’s Claim and start all over again.

This is not only time consuming, but it wastes money and resources.  It also allows your debtor the opportunity to switch banks, hide assets and potentially disappear, making the enforcement of your judgment a lot harder.

Make sure you know who you are suing, you spell their name right and if it is a corporation, include the corporate name in addition to the business name and you better your chances at enforcing your judgment.

Murray Brown, Licensed Paralegal

To School or Not to School?

You may be considering pursuing a career in law, whether that be as a Lawyer, Paralegal, Law Clerk, or some of the various other positions available within the vast expansive field of Law.

Before you make the decision to spend your hard earned money (or lack thereof) and time on continuing or starting your education in the field of Law, you may want to consider actually working in a Law Firm first.

When I first applied to Andriessen & Associates, I was unsure if Law was a field in which I wanted to pursue a career. After I was hired and began working in the position of Receptionist/File Clerk, my interest was certainly piqued.

Shortly thereafter, I was offered the position of Legal Assistant and it was at that time that my interest in Law was no longer a passing fancy, but a full blow passion.

Since that time, I have actually been working full time and studying for the four ILCO exams in order to obtain my designation as Law Clerk, and have never been more satisfied in my professional life.

It was through actually working in a Law Firm that helped me not only confirm my desire to work in Law, but also provided me with the direction I wanted to pursue my career in.

So in short, not only will working in a Law Firm possibly ignite the desire to work in Law (or drown it completely), it may also provide you with direction to which career path you are most interested in. Additionally, it will also provide you with some practical knowledge that will supplement any education you choose to commence.

So, if you think Law may be the field for you, but have some reservations, working in a Law Firm could provide you with the answers you may be looking for.

Leah Dickie, Legal Assistant

The Upside of the Pandemic from This Lawyer’s Perspective

I’m often accused of having a positive attitude and that’s probably right.  I always look for the lesson in a bad situation and this pandemic is no different for me.

Before I go all “glass half full” let me acknowledge that this Pandemic is a nightmare.  People have lost lives, businesses and hope.  It’s awful and this Blog is not intended to diminish those losses at all.

Some of the “upsides” from this Ontario’s lawyers perspective are as follows:

  1. Video & telephone call Court & Tribunal appearances have reduced legal fees for our clients and increased the efficiency of the process.
  • Suddenly the Courts in Ontario have moved into the online era: it’s way past due.
  • No one feels guilty about working from home, we are all doing it from time to time.
  • My Gif game is significantly stronger than pre-pandemic due to our MS Teams chats in the firm.

I do miss wearing my Robes to Court, but honestly, it’s not terrible litigating from my desk, even if that desk is on the shores of a lake while I’m camping (thank-you excellent internet and custom video background with our firm logo) or at my home office.

It’s also not terrible embracing working from home a few days a week: this has increased my productivity on non-commute days and has me looking forward to them, rather than feeling like I was not setting a positive example for the rest of the firm.

Finally, working in a socially distanced manner has also made me appreciate our awesome Team even more than I did before: everyone does their best to get the job done, regardless of where they are working.

I hope that you’re able to find a positive for your own business out of this Pandemic.

Inga B. Andriessen, JD

It’s Fall – what is stressing you out?

I had trouble sleeping and I feel that it was because of the first day of school jitters, or was it?  In our school board, the school start was delayed a week to allow for adjustments and getting ready for the kids to head back, whether virtually or in person, and yet, I still had the before school jitters. 

Or maybe that I was coming back from vacation and know that I was going to have a lot of work to weed through.  Maybe that was it?

It’s the unknown that always leaves me to be stressed out. 

What I like most about our firm is that we do our best to provide clients with information up front, and respond to emails and inquiries in a timely manner.  I feel that if I was a client, I would not be stressed. 

For example, we provide many of our corporate services on a flat fee basis, and the only unknown in those situations would be disbursements (filing fees etc.), but even then we give you the best estimate we can.  This helps those clients that need to budget to get their contracts and handbooks reviewed and drafted.

Also, when vacations are happening, we don’t shut down.  We all put bouncers on our emails, and tell you where you can forward your email when you need assistance urgently.  Again, I find that to be helpful so that when I do get back, I know that I’m not having to answer emails that would have been answered already, which leaves me a little less stressed when returning.  And for clients, that just means you are taken care of and you know who to reach if you needed. 

Our lawyers will allows walk you through the steps and provide to the best of their ability estimates when they can.  There are, of course, those times and situations where it’s not possible, but they are also upfront about that.

So while I may be a bit stressed about the kids returning to school, and the end of vacation, I know that our firm does their best for our clients so that they are not stressed. 

Christine Allan, ILCO Certified Law Clerk

Working From Home: Privilege or a Right?

When the provincial shut down was announced in March, in an unprecedented act, our fearless leader Inga announced we would be shutting down our physical office indefinitely and working from home. Sounds wonderful doesn’t it? Not having to get dressed in the morning (well professionally dressed, anyway). Not having to drive all the way in to work. No rush hour. #Blessed. 

Well, my commute to work is a 6-minute drive, and I like getting dressed up for work. In fact, I’m the firm oddball that actually dreaded the thought of working from home. I liked having easy access to physical files I was working on, as well as the use of all office equipment for all my scanning, printing, and collating needs. 

However, once I got all set up by our excellent I.T. team, I actually enjoyed working in my pajamas from the comfort of my own home. 

Now that Toronto has entered phase 3, we are all back working in the physical office 2 to 3 times per week.  Now I get to enjoy the best of both my professional worlds.

While Andriessen & Associate’s transition back into the physical office was smooth, some workplaces may not be so lucky. After having worked remotely for so long, some employers may be experiencing resistance from employees when it comes to returning to the physical workplace.

If an employee is refusing to return to work for safety reasons, these concerns should be addressed by the employer. If you are an avid reader of our humble blog, you will know we addressed this topic in a previous post.  Today we look at employee’s refusing to return for purely convenience-based reasons, as well as alleged childcare/eldercare obligations.

First, I’ll direct you back to the question posed in this post’s title above. If you haven’t figured it out yet, working from home is a PRIVILEGE – not a right! You can force your employees to return to the physical workplace if you have taken the necessary safety precautions. While an employee may prefer to work from the comforts of home, you do not need to accommodate requests to work from home out of sheer employee preference. 

However, if an employee says that they must work from home due to childcare/elder care obligations, employers need to be careful to ensure that they are not violating the employee’s human rights.  If the employee has a legal obligation to take care of children or elders they may be able to make claim for “family status” accommodation. This means the employer is required to reasonably accommodate the employee, or face paying damages to the employee for violating their human rights.     

Don’t worry, not all employee requests to work from home due to childcare/eldercare obligations will rise to a level requiring accommodation. This is a lawyer question, so ask a lawyer!

If you are facing a situation with an employee refusing to return to work, you should reach out to us. We transitioned back seamlessly; we can help you do the same.

Robin K. Mann, JD

Think You Can Lien Under the Repair and Storage Liens Act? Not So Fast!

Something interesting happened on a matter I was brought into.

A client discovered a lien registration under the Repair and Storage Liens Act (“RSLA”) on one of their vehicles by a Lien Claimant who we believed was a gas station.

Our client wanted to know if a non-possessory lien under the RSLA can be registered for fuel.  There’s a first for everything, and this was a first.

Under the RSLA, a “Repair” is defined as an expenditure of money on, or the application of labour, skill or materials to, an article for the purpose of altering, improving or restoring its properties or maintaining its condition and includes,

(a) the transportation of the article for purpose of making a repair,

(b) the towing of an article, or

(c) the salvage of an article;

A “Repairer” is defined as a person who makes a repair on the understanding that the person will be paid for the repair.

Based upon the definitions of both a repair and repairer, fuel cannot be defined as a repair and the lien claimant cannot be defined as a repairer. 

Upon investigating, the alleged lien claimant provided documentation which they claim supported their lien.  It was not for fuel but for charges for a parking space on their property.

Under the RSLA, a “Storer” is defined as a person who receives an article for storage or storage and repair on the understanding that the person will be paid for the storage or storage and repair, as the case may be.

Our client’s vehicle was not being stored at the property of the lien claimant’s.  The vehicle would be parked there from time to time, coming and going as it pleases. 

The lien claimant most certainly cannot be defined as a Storer, as they were simply providing a designated parking space.

When pushed further, the lien claimant admitted they had no written authorization from the individual who parked our client’s vehicle there, which is required under the RSLA.

The lien was subsequently discharged, as they realized they had not right to register the lien.

If you want to register a lien under the RSLA, make sure you fit the definition of either a Repairer or Storer (or both), and ensure you have written authorization, or you can face some consequences for incorrectly registering a lien.

Murray Brown, Licensed Paralegal

That Fall Feeling

As August draws to a close, even if you don’t have school aged kids, it still usually feels like “back to school” which brings on that Fall Feeling.   We’re having that big time at the firm right now.

This past Friday our firm said farewell to our Receptionist/File Clerk Victoria.   Victoria starts her first year at Osgoode Hall Law School next month.  This is fantastic for her & I’m proud of her, though recognize her first day of law school will be very different than my first day.   I fondly recall day one at Osgoode, I met so many people who became friends and remain so today.  I cannot imagine how I would have made those connections virtually, but such is life in a pandemic.

As we said goodbye to Victoria, we said hello to Anisha who takes over the role.  Anisha is another amazing woman: she is completing her second year of her paralegal diploma, virtually of course, as she joins our firm.  We’ll have a photo and biography up of Anisha shortly, but lets just say it will involve planes, because in addition to everything else, she is a pilot. 

Totally unrelated, anyone know a good place to get a plane we can do up with Andriessen & Associates Branding?

Cheers to new beginnings for both Victoria & Anisha. 

Inga B. Andriessen, JD

Is your Law Clerk ILCO Certified?

What is ILCO?  The Institute of Law Clerks of Ontario (“ILCO”) is a professional association providing continuing education, fellowship and networking for its members and strives to advance and protect the status and interests of the profession.

Can anyone belong to the ILCO?  You cannot just be a member of ILCO without the required education and there are two ways that you can do that: going to college for the Law Clerk Program in full-time studies, or going to night school taking four requisite courses and taking writing the exams. 

I decided full- time studies was best for me.  I knew from a young age that I wanted to work in a law office, but not in a court room.  So being a Law Clerk was the next best thing for me.  My program (many years ago) was a three year program and had two placements in law firms.  Not many institutions have the three year program anymore, most are 2 years.

Once I graduated and started working in a law firm, I became an Associate Member of ILCO and have been a member since 2006.

There are many institutes that have the ILCO approved courses that are generally held one night a week, and only two courses every year.  Therefore, it would take two years to complete all four of the courses and write the exams.  This option is geared towards those working full-time

There are pros and cons to each option.  The first choice would be full-time studies during the day, allowing for at most part-time employment outside of school.  That said, you get introduced to law firm through placement, and also touch on subjects such as law firm accounting and communications, which as you know is a huge aspect of a firm.

The second choice is geared towards those who already are employed in a law firm and looking to gain the additional education to be certified as a Law Clerk, which means packing a lot of information in and having one three hours of instruction per week. 

Being a Law Clerk, we are required to follow the Code of Ethics, and complete three hours of mandatory of ethic courses every five years.  These courses are ensuring that the Law Society of Ontario’s Rules of Professional Conduct and the ILCO Code of Ethics are refreshed for the Law Clerk and ensures we are conducting ourselves in connection with these Rules. 

There are people who say they are a Law Clerk, but are they?  Did they complete the courses?  Do they have the ILCO Certificate on the wall in their office?  I do, you know why, I love what I do and I’m going to show off my accomplishments. 

Christine Allan, Law Clerk