The Night Before Legal Pot in Canada

‘Twas the night before legal pot and all through the nation,

Big law firms were churning out Cannabis Policies and charging a fortune.

When what to small businesses’ eyes should appear, but a law  firm more practical,

They’ll take it from here.

 

OK, so we’re not poets, but honestly, all of the dramatic emails some law firms are sending around regarding the impact of legalization of recreational Cannabis is a bit much.

If your business already has a written Drug & Alcohol policy, then you’re likely already well covered in the workplace.  You are not allowed to work drunk, similarly, you are not allowed to work high.  It’s not rocket science.

Some firms are suggesting that employers require employees to advise if they are using medical Cannabis.  Really?  Are you also going to ask everyone to disclose when they are on Oxycotin, Percocet or a litany of other drugs that you’re not allowed to drive or use heavy machinery with?  The short answer is no, you’re not and medical Cannabis is a prescribed drug, just like the two others I named.

Some employers are concerned they need specific policies saying you cannot drive a company car while high on Cannabis.  Well, the Highway Traffic Act kind of already says that people – see what I mean about drama?

So.  To recap: legal pot does not mean it is legal to drive or work high.

Inga B. Andriessen, JD

iandriessen@andriessen.ca

 

 

Shareholders’ Agreements. Do you need one?

Usually,  the only time that the answer will be no to the question in the title of this Blog is when there is only one shareholder.

Once your company has issued shares beyond the one shareholder (presumably you), you should have a shareholders’ agreement.  I know what you are thinking, you are only issuing to family members so it’s not necessary.  Always plan for the worst.

A shareholders’ agreement provides for the management and financing of the corporation, and also deals with the rights and obligations of the shareholder amongst each other.  Every shareholders’ agreement is drafted to each particular situation.

For example, if the shareholders are employees of the corporation, it will map out what happens to the shares of that employee if they are no longer employed by the corporation.

Additionally, if shareholders are family members, that shareholders’ agreement will include specific provisions geared towards martial breakdown, and family involvement in the company.

Even though the agreement is tailored to each particular situation, there are standard terms which will be found in all shareholders’ agreements, such as how to transfer shares, how to pay dividends, financing and dealing with directors and employees.  For this reason, it is important that lawyers are involved when drafting these agreements, and also that each party to the agreement has an opportunity to review it with their own lawyers.

So when we ask you if you would like a shareholders’ agreement prepared, you might want to think twice before saying “maybe later”, because sometimes “later” is already too late.

Christine Allan, Law Clerk

callan@andriessen.ca

Before You Sue, Make Sure Your Hands are Clean

No, the Blog title does not mean you need to take extra care scrubbing your hands before going to Court, though we do recommend Hand Sanitizer after going through Court Security.   This is about the legal concept of “Clean Hands”.

When I took my first college course on litigation well over a decade ago, one of the first doctrines we learned about was the doctrine of “clean hands.”  What does that mean?   The doctrine of clean hands, in a nutshell, is a defense that bars relief to a party who has engaged in bad behavior relating to the subject matter of their claim.

I was recently involved in a matter where our client was sued for failing to remove a payment on the date outlined in the contract, resulting in the plaintiff’s account being charged NSF fees.

They sued for what they claimed was irreparable harm to their credit, which was never established.

I argued (successfully) that the plaintiff is not entitled to damages resulting in the NSF charges, because the attempt to withdraw any payment was after the date it was due, and if the payment did not come out on the date it was supposed to, a reasonable person would simply leave the money in their account until it came did.  I suggested that the money was never in the account in the first place, and what caused the plaintiff’s damages was their failure to ensure the payment was in their account.

I argued that the plaintiff did not come to court with “clean hands” because the NSFs were not caused by our client attempting to withdraw the payment on a date other than what was in the contract, but because of the plaintiff not having the funds in the account in the first place, which resulted in any alleged irreparable harm to their credit.

The plaintiff failed to take responsibility for their actions, and the Court was not sympathetic to them.

It is important to be mindful of your actions before proceeding to Court to make sure that you come to Court with clean hands to ensure your actions won’t be used against you.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

 

The Good Lawyer – Part 2

Here we are again for another installment of “The Good Lawyer” …Yes, the wait is over!

Last time, we began our discussion on what it takes to be a great lawyer by looking at the importance of communication.

Today’s trait of choice is …RESOURCEFULNESS.

Most people only need a lawyer when they are having legal problems. Lawyers are the ones you expect to have all the answers to your legal troubles. Some of you may be surprised to know this, but a great lawyer isn’t one who knows all the answers, a great lawyer is someone who knows where and how to look for the answers. Sometimes this means hitting the books and burning the midnight oil, other times it means reaching out to a network of experts. Yes, in this case, connections do matter!

Being resourceful also means looking at a legal problem and carving out a unique solution. At our firm, we recognize that all legal problems are different and that standard cookie-cutter approaches are not the way to go. Thinking outside of the box is key.

Resourcefulness in a lawyer should take them beyond just providing legal services. A resourceful lawyer is someone who doesn’t blindly take instructions from their clients but instead, where appropriate, offers creative alternatives that better serve their client’s needs.

To sum up, when sizing up your legal representation, remember: truly resourceful lawyers have great research skills, connections to a network of helpful experts, and creative approaches to handling your legal problems.

Stay tuned for Part 3 of our segment on “The Good Lawyer.”

Robin K. Mann, JD

Associate Lawyer, rmann@andriessen.ca

The Cost of Being your Own Lawyer

Some Blog topics come up over and over again on our site.  It’s not because we’ve run out of ideas – believe me WE have ideas.  It’s because the issue keeps coming up over and over again.

Recently, we helped a client with a lawsuit involving a contract they drafted without a lawyer’s input.    We won.  The client was happy.

The client then returned with a new lawsuit involving another contract they drafted without a lawyer’s input.  This contract was drafted during the timing of the first lawsuit.  The client knew better.

The client knew that they paid us approximately $4,000.00 to deal with the litigation and they knew we would have charged $ 750.00 to review their contract.   You don’t need to be a math major to recognize litigation costs a lot more than drafting work.

A different client recently came to our firm, finally giving up trying to run their own Small Claims Court collection files.  They realized that sitting around, waiting to be heard by a Judge was taking away from their ability to conduct their business.  No kidding.  If you’re not a paralegal or lawyer, you have better things to do with your time than sit around waiting for Court.

In this day and age where many business owners are willing to spend money on expensive cars and luxurious office furniture, maybe it’s time to take a step back and realize that you can afford a lawyer if you choose to do so.  It’s cheaper in the long run.

Inga B. Andriessen JD

iandriessen@andriessen.ca

Always Forward, Never Straight

The title of today’s Blog is attributed to many people, so I’m not sure who to actually credit for it.  I personally learned of it recently when Lance Armstrong’s wedu.team adopted it as one of their inspiring quotes.   As applicable as the quote is to endurance sports, it’s also applicable to business.

Now I know this sounds philosophical, but stick with me for a paragraph or two longer and we’ll get back on “legal” footing.  A business that is growing will not always choose to stick to the same plan and just move forward, rather, it will explore a side issue that might take it in a different, but still forward direction.

As long as your business is always moving forward, you’re going in the right direction.  This is not to say, don’t look back.  The adage if we don’t learn from our mistakes, we’re bound to repeat them, applies even more so in business than it does in history.

When it comes to the legal aspects of your business, it’s important you check in regularly with your lawyer to ensure that forward path you are on is still compliant with the law.  In our firm, we do annual checkups with our clients – these are phone calls where our clients update us on how the past year was and their plans for the next.  This allows us to let them know of changes in the law that might impact them and help them keep moving forward.

Does your lawyer check in with you annually?  Why not?

Back to moving forward !

Inga B. Andriessen JD

iandriessen@andriessen.ca

 

Always Read the Terms of your Contract

When you are running a business and you require the services of another company, most likely that company will have you enter into a contract with them.  Before you sign that contract, always read the terms and make sure you understand them.  If you don’t – call us, and let our firm have a look at the contract for you.

Some contracts for services have a semi-automatic renewal term.  What does this mean?  This means if you do not terminate the contract prior to the expiration of the initial term, the contract will then renew for an additional term, usually the same amount of time as the original term.

If you do not provide proper notice under the terms, you can be on the hook for the full amount of the term of the contract if you want to terminate it.

In 2017, the Supreme Court of Canada considered the issue of semi-automatic renewal provisions in contracts, and the Court found that if the term is not ambiguous, the contract will renew in accordance with the terms unless proper notice under the terms is provided.

So, if the value of the term of the Contract is $2,000.00 and you fail to give proper notice or notice at all, and you still wish to terminate that contract, you are obligated to pay that service provider $2,000.00, whether or not you continue with the services under the contract or not.

Always read the fine print of your contracts.  Diarize when your contracts end, and more importantly, diarize the earliest date which you must provide notice to terminate your contract(s) so that you do not end up paying more than you have to.

Murray Brown, Paralegal

mbrown@andriessen.ca

The Good Lawyer – Part 1

Nowadays you can’t drive a block or two without seeing a sign for a law firm. They are (what seems like) in every strip mall in the GTA. We are bombarded with lawyers faces splashed on billboards and transit buses on our morning commutes.

With the legal profession as heavily saturated as it is, it can make picking the right lawyer particularly challenging. Whether you are looking for a lawyer or already have one (and aren’t sure they are doing the job) there are definite qualities you should look for to ensure your legal professional can deliver what you need.

This blog will be a five-part series where each post will explore one quality important in being a great lawyer. Today’s showcased quality is … COMMUNICATION.

Communication, as you may already assume, is a crucial part of being a lawyer. While you may have seen from watching Suits, the Good Wife, Law and Order, or any other law-centered tv show, being able to articulate yourself clearly and effectively is important in a courtroom. What people often forget is that lawyers need to be equally as convincing and clear in their written submissions to the court. What would surprise (and perhaps shock) a lot of people is how many poorly written and edited briefs make it before judges. Trust us, judges find it hard to take you or your case seriously when they are struggling to make sense of your written materials.

So, while you may have met with a lawyer and hired them because they seemed articulate and charismatic in your initial meeting, you need to ensure that they are equally as skilled in drafting the written components of your case. You should demand nothing less from any legal professional you hire to represent you.

We believe first impressions are everything! Whether it be in the form of verbal and written submissions to the court, or through telephone calls and correspondence with opposing counsel – you want a lawyer that can clearly communicate your case.

Our goal (and what should be the goal of any good lawyer) is to always keep our client in the loop regarding anything and everything written or said on their behalf. We send our draft materials to our clients for final approval, not only so they can see the quality of our work product, but also so that they can offer their input. This generally results in no unforeseen surprises come court day – at least on our end!

Stay tuned for quality number two in weeks to come… (suspenseful, we know).

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca

You can run, but chances are you can’t hide from us!

As the law clerk in the office, one of my responsibilities is to conduct searches on individuals and corporations.  To be honest, it may be one of my favorite things to do.  The harder it is to find someone, the more exciting it is for me.

Outside of the Google and social media searches, our office is equipped with a number of programs that we can use for searches, such as corporate searches, property searches, driver’s licence searches, Personal Property Security Act (PPSA) searches – and the list goes on.

Just recently I had to locate the directors of a corporation, who had used the corporate head office as their address for service, and the corporation was no longer located at that address.  I successfully located the director by using our programs and doing a lot of digging around.

Usually, with a name and last known address, we would start with a driver’s licence search.  However, in this case, all I had was a name and we all know names can be common.  I started first with a PPSA search.  If they were an officer of the company, chances are they leased office equipment and perhaps guaranteed an equipment lease.  I got lucky and obtained the date of birth.  Now I could proceed with the driver’s licence search to confirm the current address.  I was also able to conduct a property search and confirm they owned property that our client could secure a Judgment against.

After Judgment, we have the ability to conduct credit searches in an attempt to locate any active bank accounts or find an employer that we can garnish wages from.

When someone tries so hard to evade service of documents, or just doesn’t want to be found, I am filled with so much happiness when I can successfully locate them.  Does that make me evil, or good at my job?

Christine Allan, Law Clerk

callan@staging.andriessen.ca

Taking Client Privacy Seriously

Another day, another data breach by hackers targeting a large company – that’s how it feels anyway, am I right?    No one wants the hassle of dealing with canceling credit cards and trying to remember which passwords were shared with other sites, but these days it is approaching normal.

What also seems to be “normal” these days is many law firms “accidentally” not protecting their Client’s Privacy because the lawyers are not aware the software they are using exposes their clients to breaches of Privacy.

As lawyers, anything our clients tell us is confidential and we cannot be forced to give up that information (except in very limited circumstances, such as a threat of immediate harm).  This is a good thing as it lets our clients tell us the truth and we can advise on that.

In this data age, most firms communicate with their clients via email and most firms back up those emails.  Where are the servers located?  If they are not in Canada, then those servers could be subject to inspection by the Government of the country in which they are located.  For e.g. in the USA, data is scanned under the Patriot’s Act.  This means if your lawyer backs up their data to a USA server, your private information could be reviewed by the NSA.  Imagine if you’re accused of a crime you are adamant you didn’t commit, but your lawyer has backed up all of that data to a USA cloud.  Enjoy your next border crossing.

Many sole practitioners think Dropbox is a fantastic way to store client files so they are accessible on their phones/laptops, etc.    Dropbox has servers located in the USA.  You’ve just exposed all of your client info to the USA government.

Perhaps even more shocking is the latest Law Firm Accounting Cloud Product, CLIO, is hosted in the USA.  Now, provided you don’t have detailed dockets setting out what your client conversations entailed, you probably didn’t violate lawyer/client confidentiality, but maybe you did.  You certainly exposed your client’s contact information to the USA government as well as the fact they have retained a lawyer.

Most lawyers are trained as lawyers, they’re not trained as IT experts and may not even realize that they are exposing their client’s confidential information to other parties.  That’s not a good enough answer in this day and age.

Our firm takes client information seriously and protects that information on Canadian based servers only.  Our staff is not allowed to cross the border with Law Firm Email on their laptops and mobile devices, thereby ensuring border guards do not read confidential information.    Ask your lawyer if they take your privacy as seriously: we hope the answer is yes.

Inga B. Andriessen JD