Want your Legal Fees Awarded Back to You in Litigation?  Read on !

In Ontario, the winner of a stage of litigation is usually awarded back legal fees.  These can be partial indemnity (approx. 60% of actual fees + 100% of disbursements), substantial indemnity (approx. 90% of actual fees + 100% of disbursements) or full indemnity (100% of actual fees + 100% of disbursements).

If you’re a business suing a party that owes you money, the easiest way to ensure you get full indemnity fees back is to have a clause in your contracts setting out that this is what you’re entitled to.   The Supreme Court of Canada has held, in Bank of America v. Mutual Trust Co., 2002 SCC 43 , in enforcing a compound interest rate in a contract, that:

“Contract law is not the enemy of parties to an agreement but, rather, their servant.  It should not frustrate their mutually agreed intentions but, instead, absent overriding policy concerns, should permit those parties to obtain the benefit of their intended agreement.”

We have successfully relied on this caselaw over and over again to obtain full indemnity costs for our clients whose contracts have full indemnity wording.

If you’re not getting full indemnity costs in your successful law suits, reach out and let’s talk about how we can help you.

Inga B. Andriessen, Senior Lawyer

How To Make the Examination in Aid of Execution Work for You

If you lack information on your Debtor that you can use to enforce your judgment, an Examination in Aid of Execution could be the way to get it.

Examinations are a good way to determine if your judgment can be enforced or not, as you are able to obtain financial information of the Debtor, such as bank accounts, employment, or other assets they own.

The Examination takes place in the jurisdiction where the Debtor resides or in the case of a Corporation, the jurisdiction where the Corporate representative resides.  The Representative’s jurisdiction may differ than where the Judgment was obtained, and if that is the case, a Certificate of Judgment must be issued to proceed with the Examination in the jurisdiction of the Representative.

The Notice of Examination with the Affidavit for Enforcement Request, and Financial Information Form (if the Debtor is an individual) is served on the Debtor personally, and up to thirty days before the Examination. 

I always serve the Debtor with a letter, detailing the financial records and information I want in advance of the Examination.  If the Debtor fails to provide the documents, I rely on the letter to justify an award of costs for the Debtor’s failure to comply with our request. 

If a Debtor fails to attend the Examination, which are now done virtually, a Further Examination/Contempt Hearing is scheduled by the Court.  Once again, they must be served personally, unless an order for Subservice is granted, which can be in certain circumstances.

If the Debtor attends, the Examination proceeds, and hopefully you’re able to get enough financial information out of them to enforce your Judgment.  However, if they fail to attend, the Debtor will be found in Contempt, and a Warrant for their arrest is eventually issued.  This means that if they are ever pulled over for a traffic violation, or better yet, when they’re at the Airport leaving or returning from vacation, they’re getting arrested and thrown in jail until they can appear before a Judge to purge their contempt.   

It’s usually around the time they’re arrested that they will either pay or make arrangements to do so. 

How embarrassing would it be to go to jail for not appearing at a Small Claims Court matter?  Not the “cred” you want in jail.

Murray Brown, Licensed Paralegal

Are you purchasing a business, or just the assets?

If you read that question and thought to yourself “what’s the difference”, then you need to keep reading. 

Purchasing a business means that you are purchasing 100% of the shares of the company, which effectively transfers all of the company’s assets and liabilities to the purchaser.  This includes keeping the corporate name that you purchase, its’ leases, employees, bank accounts, intellectual property, the list goes on.  

Purchasing assets of a company means that an individual, or other entity, purchases individual assets of a company, but not actually purchasing the company itself.  This can include specific equipment, vehicles, and even a business name, all of which needs to be described in detail. 

In either circumstance, you need to ensure that you enter into the proper agreements for both. A Letter of Intent is used for both a share purchase and an asset purchase, but there are differences in each document, and it is always best to consult your lawyer before entering into any kind of agreement, and have them draft the Letter of Intent. 

The Letter of Intent is just the starting point to the actual binding agreement, such as the Asset Purchase Agreement and Share Purchase Agreement.  Each of these Agreements are very detailed and is the document that sets out all terms and conditions of the transaction, including setting out the terms in which either party could terminate the agreement. 

Another important step in each of these transactions is the due diligence process.  Searches will need to be conducted to ensure that the assets you are purchasing are in fact owned by the company, as well as making sure there are no encumbrances on those assets.  For share purchases, an in-depth review of the corporation’s minute book will need to be completed, as well as searches to ensure there are no Judgment against the corporation which were not disclosed.  These are just a few of the many due diligence steps that can be involved in any transaction.

Which ever acquisition you are proceeding with, as you can see from the above, it certainly is a complicated process and should never simply be a just a “handshake” deal. 

Christine Allan, ILCO Law Clerk

Ethical Lawyering

I have a few friends that are currently studying for the Ontario Bar Exam (Good luck to all those writing!) and they reminded me of the professional responsibility section in their study materials.

The adversarial nature of litigation makes it essential for all litigators to be constantly reminded about these rules.

Lawyers must be zealous advocates for their clients however they must do so within the bounds of ethics and decorum. This needs to be done by advocating for their clients’ interests without resorting to tactics that are disrespectful, harassing, or prejudicial to the administration of justice.

Lawyers also have a duty of honesty and candor towards the court, their clients, and opposing parties. This entails presenting truthful evidence, making accurate legal arguments, and refraining from misleading or deceptive tactics that may compromise the integrity of the judicial process.

In law school I participated in many mock trials and negotiation competitions. There was once a participant in one of these competitions who made up a fact not included in the facts given to us. The mock competition was stopped, and the entire class was warned about how devastating making up information for the sake of winning can be to a case or a lawyer’s reputation.

Judges are people too and past behaviour matters. If a lawyer has a history of unethical or untruthful behaviour, it can harm the credibility and believability of their arguments.

I am proud to be part of this firm where we maintain a commitment to truthfulness, fairness, and ethical behavior while still achieving excellent results for our clients.

Ariel Dorfman,  Associate Lawyer

Ontario’s New Labor Laws: What Employers Need to Know

Ontario has made significant strides in modernizing its labor laws with the passing of Bill 149, the Working for Workers Four Act, 2023. This legislation, which received royal assent on March 21, 2024, brings about crucial changes aimed at protecting workers and ensuring fair employment practices across the province. Employers must now adapt to these changes to remain compliant with the law.

Immediate Changes

Effective immediately upon royal assent, certain amendments to the Employment Standards Act (ESA) have come into force. One notable change is the amendment to the definition of “employee” to include individuals undergoing trial periods. What this means is that now unpaid trial periods are prohibited. Additionally, employers are no longer able to withhold or deduct wages in situations where customers leave establishments without paying for goods or services.

Upcoming Amendments on June 21, 2024

Looking ahead to June 21, 2024, further amendments to the ESA will take effect. Employers have a window of time to prepare for these changes, which include clarifications regarding the timing of vacation pay and requirements for employers with policies on tip sharing to post and retain copies of these policies in conspicuous places within their establishments.

Future Changes

The Act also introduces forthcoming amendments, such as the requirement for employers to disclose salary ranges in job postings and the use of AI in the hiring process. While the exact implementation date for these changes remains unknown, employers are advised to begin planning for compliance as soon as possible.

Implications for Employers

With these changes, Ontario is prioritizing transparency, fairness, and accountability in the workplace. Employers must prioritize updating their policies and procedures to align with the new legislative requirements. Failure to comply with these regulations could result in legal consequences and reputational damage.

If you don’t have a business lawyer to guide you through these changes, feel free to reach out to see if we’re the right firm for you.

Robin K. Mann, Associate Lawyer

Is your Job Posting telling Applicants what your Law Firm Culture Is?

In the last 10 months I’ve had the weird experience of being on both sides of the recruiting process, both as a a recruiter and as an applicant. When I was applying for jobs I would read articles about how to write a strong cover letter and how to create a resume that stands out. Most of the articles touched on being professional, concise, and having proper formatting. But the articles that really stuck with me were the ones that reinforced putting your personal stamp on your applications.

When we started our recruiting cycle I looked at articles for best practices on writing job postings and I realized there was little mention on how to use your business’s culture/personality as a tool to attract applicants.

Having seen what information was consistently repeated on both sides of the recruiting process it left me with this.

Applying to jobs in the modern day feels a lot like scrolling through social media, a majority of postings feel curated, bland, and impersonal. Many job postings end up feeling formulaic due to the writer feeling the need to only highlight the strengths of their company and shy away from the weaknesses.

Employers should lean into the quirks (good and bad) of their business that makes them standout in a long and I mean long list of job descriptions applicants will scroll through. What you may consider a negative for your business may be the reason an applicant applies.

For instance during our last recruiting cycle we made sure to emphasize our “unique” workplace culture in our job postings. (“unique” being a lot of squabbling and questionable jokes). While I’m sure that this turned some applicants away, it also brought in applicants that were looking for that type of atmosphere.

Yes professionalism and standard inclusions are important and have their place. In fact they will be a core part of your job postings, but don’t ignore your business’ personality for them.

Dylan Coffey, Human Resources

Delays in Litigation

These days it is very common for the news in Ontario to have a story about a criminal case that has been “tossed out” due to delay.   This delay is also in the Civil side of the Court, the only difference is that cases are not tossed out due to delay of the Courts.

The backlog in the GTA Courts is significant.  Trials in Toronto are being scheduled in 2026, motions can only be heard in 2025. Things are not getting done.

Someone suggested raising the Small Claims limit in a recent Linkedin post I read.  That doesn’t need to happen in order for Small Claims to be an effective Court to ease the Superior Court pressure we currently have.

What needs to happen are cost consequences for cases that are currently being brought in Superior Court that should be in Small Claims, where damages have a maximum of $ 35,000.00.   Many firms in the GTA bring actions in Toronto Superior Court to force mandatory mediation and if they don’t settle there, often settle at pre-trial for way less than $ 35,000.00, often for zero.   The majority of employment files our firm handles for employers are these types of cases.  They are bogging down the Toronto Court system and it’s an easy way to get rid of a lot of the cases that should be in Small Claims as it is now.

Just last week I had an employment file where Plaintiff’s counsel booked a Superior Court scheduling Court (called CPC) in Toronto for their Summary Judgment motion.  The morning of the CPC they changed it to a Summary Trial, which is the type of trial that is mandatory for cases under $200,000.00, but is optional for over that amount.   

Our case had mandatory Simplified Trial which is obtained by the Plaintiff serving a Notice of Trial.  A pre-trial is then set before an Associate Justice and from there the trial date is set.  The lawyer in our case was trying to jump the line and but for me bringing to the CPC Judge’s attention that this was the Plaintiff trying to “jump the cue” they would have succeeded.  They did not and “shockingly” as I write this Blog, well past the date of CPC, they still have not served their Notice of Trial.

There are ways to clear our backlog that simply require enforcing our current Rules of Civil Procedure and changing the way counsel are clogging up Superior Court inappropriately.  We need to see this change quickly, before the problem becomes even bigger.

Inga B. Andriessen,  Senior Lawyer

Maple Leaf’s Playoffs!

The NHL playoffs began this past weekend and the Toronto Maple Leaf’s are in for the eighth consecutive year. This achievement marks a period of consistent success since they drafted Auston Matthews in 2016.

The team’s journey to the playoffs has been marked by significant performances from key players.

The team’s playoff success (fingers crossed) will depend on the consistent performance of their star players as well as the depth players on their roster. 

Comparing our firms legal service to the Maple Leaf’s track record is a risky proposition but as an office full of Maple Leaf’s fans (I think) [Inga’s edit – only slightly more than ½ of the firm are Leaf’s fans] I feel like it would be a disservice not to.

At Andriessen & Associates our clients receive service similar to the Toronto Maple Leaf’s of the past 8 years. Our firm offers consistently exceptional service to help make businesses profitable through reasonable hourly rates and a dedication to our clients bottom line. Everyone at our firm is star player and we are all focused on the ultimate goal of providing cost efficient service for our clients.

The key difference between us and the Maple Leaf’s is that our firm has had a few more wins since 1967.

I am still undecided on if comparing our firms service to the Toronto Maple Leaf’s track record is going to be an annual exercise until they win, but it wont matter because THIS YEAR IS THE YEAR!!!

GO LEAFS GO!!!!!

Ariel Dorfman, Associate Lawyer

Policing Managing Off-Duty Conduct

This modern age of social media has left many people in a state of chronic oversharing. Do we really need to see what our friends, family, coworkers, (or that girl I went to elementary school with) are doing at any given moment? While Instagram, TikTok and Facebook would answer in the affirmative, this current social media climate creates certain challenges for employers, requiring them to navigate off-duty conduct in an era where personal and professional boundaries can easily blur online.

First things first: employers generally can’t interfere during employee off hours. This means employers can’t police their employee’s social media accounts or tell their employees how to dress when they aren’t at work.

However, where the employee’s after-hours escapades have a “justifiable connection” to the employer or their job, the same rules may not apply!  

If an employee’s off-duty antics meet certain criteria – like harming their employer’s good name or rendering the employee unable to satisfactorily perform their job – then disciplinary action may be warranted.

Now, onto crafting those oh-so-crucial employer policies regarding employee conduct. While we can whip up rules faster than you can say “delete that Onlyfans account,” there are limits to our legislative prowess. Employer policies relating to off-duty conduct must be fair, non-discriminatory, and clearly communicated.

Finally, let’s not forget about enforcement, where consistency is key! If Karen gets a slap on the wrist for her after-work antics (probably due to the post-pandemic stigma related to “Karens”) while John gets a free pass, the employer will find themselves in some hot water.

Be forewarned: the bar for proving that discipline for off-duty conduct is justified is quite high. Hold off on policing any off duty conduct without getting a legal opinion first!

Robin K. Mann, Associate Lawyer

Top of Form

Adjournments of Hearings and Civility

In August 2023, we received a Notice of Trial with the scheduled date of late March, 2024.  From the date of the Notice of Trial to the actual Trial date, there was just about 7 months notice.

Trial preparation on my files starts the day I draft the Plaintiff’s Claim.  I draft my claims the way I will present my argument at Trial.

Prior to the actual Trial date, we meet with our client and witnesses (if any) to go over the evidence and questions that will be asked of them and any potential questions the opposing party may ask.  That takes a bit of time, depending on the complexity of the issues.

Trials are now in person, which means I’m waking up hours earlier than I normally do (I know, boo hoo!) to get the Courthouse early, to find parking, and a quiet place to work and have one final review of the matter with the witnesses.

I spent a lot of time preparing for this Trial only to be told by the Defendant (who is self represented), ten minutes before being called into the Courtroom that they would be seeking an adjournment, because their representative was not available.

After asking a few questions, they allege they retained their representative about two weeks prior to the Trial date.  The same Trial date that had been scheduled 7 months prior.  While we were waiting to be called in, we called the firm who the Defendant claimed to have retained, only to be told they “were in the process of being retained.”

I asked the Defendant why they did not contact us prior to the Trial date to consent to  an adjournment, and they kept quiet and shrugged their shoulders.  For the record, I had a wicked migraine to the point I was getting sick, but I still showed up ready to go.  To say I was not impressed would be an understatement.

During the request to adjourn the Trial, we asked for costs.

The Defendant did not feel they should have pay costs to our client who has been inconvenienced by this matter, not to mention my migraine and the witness who voluntarily attended without being summonsed.

The Defendant provided (*counts on fingers*) five excuses, all of which were irrelevant to the issue of costs.

In the end, they were ordered to pay significant costs, slightly less than what we requested, but not insignificant, nonetheless.

The Judge advised that the Defendant lacked civility in their handling of the issue of an adjournment request.  Civility is defined as “formal politeness and courtesy in behavior or speech.”  The Defendant, it appears did not feel the need to show civility to our client, their witness, the Court and my migraine.

This attendance could have been avoided had the Defendant showed some civility and reached out to us before the Trial date and the hearing could have been adjourned, avoiding the inconvenience it brought on to a number of parties. 

If you require an adjournment at any stage of litigation, the earlier you reach out, the better for all parties involved.  In this case, the Defendant knew or ought to have known that waiting up to two weeks to hire someone before a Trial would cause a delay in the proceedings and very little was done to avoid that.

Showing civility to the opposing party, although you may not want to, will only have a positive impact with the Court if an argument of costs must be made at an adjournment of a hearing.

Showing civility and showing respect for people’s time may result in a positive outcome.   Don’t wait to the last minute to request an adjournment unless absolutely necessary, or you can end up paying costs you don’t want to pay.

Murray Brown, Licensed Paralegal