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

The Importance of Moving Your Case Forward in a Timely Manner

The Limitations Act allows you two years to sue a party for money you’re owed.  That doesn’t mean you should wait until the eve of the second year to commence a lawsuit.

Why?  Well, memories fade, documents get lost, and witnesses disappear.

It is difficult to prove a case if you can’t remember events, lose important documents or a witness dies.

What is even more frustrating are people who commence a lawsuit, then end up doing nothing to move the matter forward for a year or more.  In Small Claims Court, a matter must be set down within thirty days after the Settlement Conference.  It seems like only our firm actually complies with that rule, because many lawyers and paralegals fail to do so.

Having to refamiliarize yourself with a file you thought has long gone only to rear its ugly little head again is incredibly frustrating to both a party to a lawsuit and a legal representative.

In addition to the above, everyone, whether you’re a plaintiff or defendant is entitled to finality and it really is irritating to move a lawsuit forward long after you should have.

So do not be that person that waits until just before the two year anniversary of you being owed money to sue, and more importantly, move your matter forward in a timely fashion so there aren’t any issues which could potentially jeopardize the outcome.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

Hurry up and Wait – The Expensive Way We’re Forced to Litigate in Ontario

As I write this Blog, I’m waiting to be called to trial in a Courthouse that is not in Toronto, Ontario.     As with most Court Houses in the Court House runs “sittings” twice yearly when civil and family trials are heard.   The sittings started May 13 and will run until May 31.   The next sittings will be in October.

We will likely be told 4:30 p.m. the day before Trial that we are going to start the next day at 10:00 a.m.   We have no idea when that will happen as it depends on when the cases that get started ahead of us finish.

This means that for three weeks, I am unable to book any other out of office work that could not be moved.   My witnesses are also all stuck for three weeks waiting to heard we’re starting tomorrow. 

As bad as the above sounds, it gets worse.   If the full list doesn’t get reached during a sittings (which happens) then the trial gets put on the next list.  That means as the lawyer, I have to prepare twice for the same trial and the client’s bill increases accordingly.

 The time for “sittings” must end.  Given that all in the Legal Profession are working towards faster results and less expensive litigation, it’s time for things to change.  

Until things change, I’ll be here.  Hurrying up and waiting.

Inga B. Andriessen, JD

       

CEO Hit With Personal $ 100k CASL Fine

The Canadian Radio-television and Telecommunications Commission (CRTC) has been cracking down on parties that aren’t taking Canada’s Anti-Spam Legislation (CASL) seriously. In fact the CRTC recently sent a message to Canadian businesses that CASL isn’t all bark and no bite. One corporate director in particular is feeling the sharp teeth of this legislation, and that’s Brian Conley – President and Chief Executive Officer (CEO) of nCrowd.

For those of you who may not know, CASL is a fairly new anti-spam law that applies to all “commercial electronic messages” sent by organizations. These CEMs usually take the form of emails or text messages that essentially encourage the recipient to participate in a commercial activity. For CASL to apply, there must be a CEM that is sent to an electronic address. To be in compliance with CASL, you need to make sure you have explicit or implied consent to send CEMs to customers, or have a mechanism for customers to unsubscribe. 

So how did this piece of legislation end up taking a bite out of Mr. Conley? Well, following a series of complaints in the summer of 2015, the CRTC conducted an investigation into the business activities of nCrowd Group and Couch Commerce Group. Companies owned by these two groups engaged in promoting products and services of vendors on various websites by selling electronic vouchers for these merchants. It was determined that in some cases up to 4 emails per day per complainant were being sent by these groups.  The customer email distribution list even reached approximately 2 million email addresses at one point, which had largely been acquired from Couch Commerce. 

All things considered, on April 23, 2019, the CRTC found that contrary to paragraphs 6(1)(a) and 6(2)(c) of CASL, nCrowd sent CEMs or permitted its subsidiaries to send CEMs to electronic addresses, without consent and without providing an ability for customers to unsubscribe.

The CRTC didn’t stop there, the Commission found that Mr. Conley, as President and CEO of nCrowd Group, took no action and turned a blind eye to his companies’ CASL infringing activities and was therefore vicariously liable.  

The price for his involvement (or lack there of)? $100,000. That’s right. The CRTC imposed a penalty of $100,000 on Mr. Conley personally for the actions of his companies.

In some ways Mr. Conley got off easy – CASL allows fines of up to $ 10 million dollars against Officers & Directors.

Need help ensuring your company is complying with CASL? We’re here to help!

Robin K. Mann, JD

rmann@andriessen.ca 888888888888

Is a Trademark for you?

I have written before about the decision to incorporate, or to register a business name, but haven’t touched on Trademarks. 

What is a Trademark?  The Canadian Intellectual Property Office (CIPO) defines Trademark as “a combination of letters, words, sounds or designs that distinguishes one company’s goods or services from those of others in the marketplace.”

Trademarks are unique and it is important for a company to protect their words, sounds or designs  because over time, their Trademark not only represents actual goods and services they sell, but also the company’s brand.

By registering your trademark, you protect it from misuse by others, and you gain exclusive rights to use it throughout Canada for 15 years, with the right to renew.   If someone chooses to use your unique words or designs, you have the right to demand that they cease to use those. 

As there are many rules and guidelines that need to be followed when registering Trademarks, you will want to make sure that you are using a qualified lawyer and law firm to help you through this process.  All I can say is that it’s a good thing we have Inga B. Andriessen, who is a registered Trademark Agent. 

If you think you want to register a Trademark, you will want to look into this sooner rather than later as come June 17, 2019, changes will be made to the Trademarks Act which could impact your rights to register.  If you want more information, please reach out to Inga directly. 

Christine Allan, Law Clerk

callan@andriessen.ca

Trademark Law is Changing In Canada – Is Your Brand Ready?

On June 17, 2019 a big change is taking place in Canada’s Trademark world and it will matter to your Brand, if you don’t already have a registered Trademark.

The current Canadian system is the first party to prove use of the Trademark is the one who is allowed to register it. On June 17, 2019 this changes to the first to register the Trademark.

These changes are anticipated to increase the existence of “Trademark Squatters” in Canada – ie people who register and then look for you to pay them to own the Trademark.

If you currently have a Brand that does not have a Registered Trademark, you may wish to consider applying for a Trademark prior to June 17, 2019. Not only will you be protecting yourself, the fees are going up on June 17, 2019 as well.

As always when things change as dramatically as the Trademark Registrations are, people ask why? The answer is that these changes will align Canadian Trademark law with the EU and the USA, making it easier to protect Trademarks across borders.

We’re here to help, both before and after June 17, 2019.

Inga B. Andriessen, JD – Registered Trademark Agent

iandriessen@andriessen.ca

They no longer own that asset, is there anything I can do?

Doing your due diligence before entering into a contract or lease agreement with an individual or corporation can be beneficial in the long run.  It may seem mundane to double check their credit and making sure they actually own the house they say they do, but these mundane searches can be the evidence needed to support fraudulent conveyances action. 

Your client entered into a lease agreement and based on the credit application, it was approved.  A few months goes by and you find yourself chasing that client to get paid, or to even recover the vehicle. 

What’s your first step?  Get the file to your lawyer, including the credit application, and let them to do their due diligence before issuing a Claim. 

Why? When lawyers do their due diligence, they know what they are looking for.  For example, in your due diligence you discovered that the client did in fact own his house.  We go and do our searches and it’s now showing that only your client’s spouse, or perhaps children, or parents, are owning that asset.  We can trace back and obtain the necessary documents to determine when the asset was transferred, and the circumstances surrounding that transfer, for example, nature love and affection.

What happened?  Generally when we see this, the property was transferred from your client’s name solely into the spouse, or like mentioned about, another family members’ name, and that transfer most likely happened right after they entered into the contract with you, or around the time that they started to default on their payments.

What can you do about it? Now you can seek special permission from the Court to put a stop on all transfers of the property pending the outcome of your action.  This is called a fraudulent conveyance action, and allows a Certificate of Pending Litigation to be registered on title to the property, which will protect that asset from being disposed of until your litigation with your client is resolved. 

So as you can see, taking those steps early on can help when assets have been transferred without your knowledge, and we can help to secure that asset.

Christine Allan, Law Clerk

callan@andriessen.ca

Charging for your Time? Prove it!

People are freelancing more now than ever and has become a reality for many Canadians.  

If you are a freelancer or provide your services by billing your clients for your time, make sure you record your time, or you may not get paid.

At our firm, a large portion of our work is billed at our hourly rates, and we use docket sheets to show where we are spending our time, even though we record our hours in PCLaw. 

It is important if you are billing a client an hourly rate, that you can substantiate your time to them.  The one time you forget to record your time will be the one time a client asks for you to back up your hours, and you may end up not getting paid.

Sometimes people who do not bill for their time do not understand how you can bill what you do, unless it is showed to them.  People are surprised how much time things take to do, and without backup, that becomes a problem.

If you have outstanding invoices that are in dispute and you proceed to litigation, the Court will want to see some sort of documentation that substantiates your time charged to your client(s).

Failing to be able to backup your time that you bill to your client could result in the Court not awarding you what you are owed.

So the moral of this blog is: the more information you have on your time, the better for you.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

When Absolute Power Corrupts Absolutely: How to Remove an Appointed Power of Attorney for Property

In our blog post entitled “Find A Good Ol’ Trustee Person to Act on Your Behalf,” we discussed the importance of appointing a power of attorney. Today we look at what to do if you find out that an attorney for property is abusing their power.

When clients come to us to discuss drafting their powers of attorney, we ask our clients to carefully consider the best person for the job. Most want to appoint those nearest and dearest to their hearts – they often can’t imagine their siblings, children, or friends abusing this position of trust. We’re here to tell you to think with your head and not your heart on this one.    

We hear about it all the time – one sibling discovers a very generous transfer of funds from a parent’s account to another sibling; someone notices a series of bank transfers and debit transactions funneling out of a parent’s bank account; or even, a person discovers the unusual transfer of their parent’s foreign owned property to their sibling. While this sounds like an episode of a day-time soap opera, the unfortunate truth is this can happen to anyone. The good news is that there is something you can do about it. 

If you or someone else discovers questionable actions being undertaken by an appointed power of attorney while the grantor (the person granting the power of attorney) is still alive, there are several options you can explore:

  1. Terminate the existing power of attorney

Termination of the existing power of attorney can be achieved if the grantor signs a new continuing power of attorney listing someone else as their attorney; this would revoke the existing power of attorney in place. 

The power of attorney also terminates automatically upon the death of the grantor.

Lastly, the power of attorney is terminated if the appointed attorney resigns, becomes in capable, or dies.    

  • Request a passing of the accounts

An attorney for property is required to keep detailed accounts of their actions as an attorney and can be ordered by the court to “pass” their accounts. What this means is that the accounts are then filed with the court and transactions can be objected to by interested parties. The following is a list of those that can ask for a passing of accounts:

  • The grantor’s attorney for personal care;
  • A dependant of the grantor;
  • The Public Guardian and Trustee;
  • The Children’s Lawyer;
  • A judgment creditor of the grantor; and
  • Any other person, with leave of the Court.

A passing of the accounts would reveal all the transactions carried out by the attorney for property. So, if there are any inexplainable shopping sprees at Nordstrom, the attorney could be in hot water! This means potentially repaying all that money the attorney has misspent, not to mention their possible removal by the court as the attorney of the grantor.      

  • Court removal of an Attorney

While the court has the power to remove an attorney for an incapable grantor, it does not exercise this power liberally as it aims to respect a grantor’s appointment. The court will look at whether it is in the best interest of the grantor to remove the appointed attorney. The court will also see whether there is any evidence of negligence or misconduct on part of the attorney. If the court sees fit to remove the grantor’s appointed attorney, the court will then appoint a guardian of property. If you are considering a power of attorney for yourself (and we definitely think you should) heed our words carefully – with great power comes great responsibility! Okay, so maybe those aren’t our words per se, but Peter Parker’s uncle was right, nonetheless. This is a position of power, choose wisely! If you think someone is abusing this power – do something about it!

Robin K. Mann, JD

rmann@andriessen.ca

Imparting Wisdom, without sounding like a Jerk

The Law Society of Ontario’s Bencher’s elections are in full swing. There are many candidates, some running for specific causes and some running because they want the Law Society to have Benchers whose average year of call is not 27 years.

So. That was interesting. I’ve been Called to the Bar 26 years. I’d like to think those years of experience count for something, but as I read the Tweets & Rants (seriously people, we need to be professional while we discuss issues) from younger lawyers, it became clear that they have discounted experience in favour of youth.

This in turn made me consider some of the more frustrating files we’ve had in the past year – most of those are with junior counsel who don’t know the Rules and are not working with a Mentor or Senior Partner. With some of those lawyers I’ve tried to suggest they act in accordance with the Rules. It is rarely well received.

The challenge, it seems, is how to impart wisdom, without sounding like an arrogant jerk a.k.a. a lawyer.

To the younger members of the Bar, I suggest that you are right to want a seat at the Bencher table. I’ve wanted to see more non big Bay Street firms at the table so I see a better reflection of my practice over the years.

However, let’s keep in mind we’re talking about our Regulatory Body. They don’t control Law School Tuition Fees, though many young lawyers appear to believe they do. They are not going to wave a magic wand and forgive your law school debt. They are going to regulate our profession in the public interest.

Benchers do not Regulate in a pro-Lawyer manner. If they did that, we would not be self governing any more.

So, younger lawyers who have decided I’m too old to be relevant: how do you propose governing in the public interest?

Inga B. Andriessen JD

iandriessen@andriessen.ca