Litigation

Follow Through

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In this blog entry, I will tell you one simple rule that is guaranteed to reduce all of your legal fees, increase your protection from liability and ensure that your affairs are in order.  Actually, I already have in the title of this entry – follow through.

If you have been reading this blog for the past few months (Hi Mom!), you will have garnered all sorts of tidbits about what lawyers do and how we do it.  You will understand many of the areas where we can help you do what you do better and you will have some idea of how bad things can get when they get bad.

But the one thing that we can’t do in a lot of cases is finalize the work that we have done.  That part is on you.  I suspect that many people feel that once they have gone to the effort of making that appointment with their lawyer and giving authorization to draft a document or to act on their behalf in some capacity, they can breathe a sign of relief.

In reality, the value of what we do often doesn’t materialize until the job is done.

For example, I usually give my estate clients my standard legal advice after they leave my office, having just delivered their Will instructions – don’t die until we get this signed!  While there is an attempt at levity there, there is also a very serious point – the work that you pay for isn’t doing anyone any good until it’s done.

Unfortunately life gets in the way.  Between that first visit with the lawyer and finalizing the work, things happen.  You may put off an e-mail asking for your instructions until later or you may leave a finished document in your desk drawer, to be signed at some convenient time that never seems to come.

Whatever the reason, if you have retained counsel to review your business processes and make recommendations, but don’t act on them, you have wasted your money.  If you have retained counsel to draft a business agreement or to address a compliance issue, and haven’t signed off on the agreement, you have wasted your money.

But most importantly, delays in finalizing legal work mean that you are not protected, or that the problem that you brought to us, remains unsolved.  This is the biggest issue and the one that can ultimately lead to the greatest cost.

If you have legal work in progress that is all but finished, please follow up on it and do what it takes to finalize it.  You’ll be lucky if you never know how much that might save you.

Scott R. Young

Why I'm glad I practice Business Law.

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What a crazy week in the headlines – three matters jump to mind that make me grateful I’m a business law lawyer:

 Paris Hilton is being sued for wearing the wrong hair extensions. Really? Perhaps it’s just my advanced age, but I didn’t even realize she was wearing extensions, let along which brand. The lawyer who is suing on this one must have an eagle eye for hair products. I can only imagine the expert reports & cross-examinations at trial: Ms. Hilton, how would you describe your hair? Answer: Hot.

The second matter that has made the headlines is a Canadian case where a soon to be lawyer was awarded $ 6 million dollars in damages for injuries suffered while dancing with a co-worker. This has made me thankful our firm decided to pass on a Dance Off as this year’s summer fun day.

Finally … the Jet Blue flight attendant. This one could have landed on my desk if I practiced in the US and boy would it be fun.

However, in Canada, the flight attendant would no doubt sue for wrongful dismissal and if Jet Blue doesn’t have a written policy against swearing at passengers, stealing a beer & making the most awesome exit from a job ever, the Canadian Courts would likely award damages to the flight attendant for wrongful dismissal. In Canada, the recommended action would be writing the flight attendant a letter saying that this was bad behaviour and asking if they could help him through his anger issues and warning if it happens again he might be fired. If he did it again (and let’s face it, if you get away with that type of act, you’re going to do it again, or go one better) the second warning letter would have to warn that he would definitely be fired if it happens again, but how can Jet Blue help him. Finally, when he exits a third time (hopefully with something better than a beer as it would be his final exit) that would be the time he could be fired without Jet Blue worrying too much about being sued for wrongful dismissal.

Yes, I’m glad I’m a Business Lawyer in Canada, there is only so much craziness I can take and it generally flows out of a contract.

Remote Work

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As Inga has noted, summertime is vacation time.  For many of us, it’s the time of year when we try to take a week or two and get away from it all.  Cool lakes, Muskoka chairs, quiet sunsets and melodious loons all beckon.  But again for many of us, it’s almost impossible to completely defeat the office tether.  Whether it’s the mobile device that you check your voice and electronic mail on, or the wireless laptop that you use to remotely log in to the office’s virtual private network, the office beckons too.

 

While these technologies have afforded us an incredible opportunity to spend some well-deserved time away from the office and still get work done, they do come with quite a few challenges of their own.  For example, ask yourself if your mobile device use is compliant with your office policies – the policies that we spent so much time working on, and customizing to protect your business.

 

Are your connections as secure as they need to be?  Is the transfer of information compliant with the privacy requirements under PIPEDA?  How about your corporate policy regarding the acceptable use of e-mail and the internet?  How about your business’ confidentiality rules?  Can your devices be remotely wiped of your contacts and your calendar appointments if they are lost or stolen?  Do the devices support encryption for the long term storage of data?    Is your device security based on both hardware and software solutions?  Does the signature file on your mobile phone contain the company’s mandated confidentiality notice?  Does your IT department know about the level of protection that your industry requires?  Do you use your devices on the dock in the same way that you use them in the office?  More importantly – does your staff? 

 

If you answered no to any of these, you may be opening yourself or your organization up to potential civil liability for loss, the degradation of your intellectual property, fines for the violation of federal privacy laws as well as untold exposure from data loss to your competitors or others who mean you harm – a less-unlikely-than-you-think scenario.

 

As remote workplaces become an increasing reality, so do the challenges that come alongside.  Constant vigilance, a well-informed IT department, good lawyers and the occasional audit are the hallmarks of a good organizational attitude towards remote work.  Isn’t it exciting to think that we are only a slight attitude shift and a waterproof laptop away from being able to make every sunny day a possible work-from-the-cottage-day?

 

On, and I should note that this article should in no way be construed as my own personal appeal to spend next summer toiling away from a canoe somewhere on Lake Joseph…

 

Scott R. Young

Summertime – It's Not Just for Vacations Anymore

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I fondly recall summertime when I was a kid – two months of no school & lots of fun, free time and sleeping in.   As a teenager and then young adult in University,  I loved summer time as the two to four months when I could earn a lot of money … and spend it as well.

If I were a teacher I suppose I would still fondly look forward to summer for the same reasons I did as a kid; however, everyone  who knows me realizes that I am much better suited for litigation than shaping a gaggle of young minds.

As a Business Trial Lawyer,  summer is a time when Trials are generally not scheduled as it is too hard to pin witnesses down.    With Trials waiting until cooler weather, this is a great time of year to get the groundwork done for matters that will be addressed in the fall – so there are many cross-examinations and discoveries going on in the firm right now.

A bit of a twist this summer, likely due to the economic downturn, is the number of new law suits we’re starting – many clients realize that the fortunes of their debtors are not going to improve with time, so it’s time to sue to get paid.

Of course, summer is not just for work.  Mirvish Productions is featuring Legally Blonde this summer and for some reason, many clients have suggested that I take in the show  – I’m pretending that’s a good thing.

 Inga B. Andriessen, Sr. Lawyer

Pay Me Now or Pay Me Later

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I have been working on some trade-mark opposition work lately; the kind of work that involves advocating against the registration of a trade-mark.  We do this sort of thing when a client has registered or unregistered trade-mark rights and where someone else is trying to register a trade-mark that is confusingly similar.

 

Opposition work is inherently frustrating.  The government fees associated with filing oppositions are almost three times as high as those involved with an application.  The evidentiary burdens are higher with opposition work.  The amount of time and effort spent in correspondence with CIPO and opposing counsel is significantly higher in opposition work.  Correspondingly, the legal bill associated with opposition work is much higher than with application work.  Put another way, the cost of making an application in the proper format, at the proper time, is substantially lower than the cost of maintaining trade-mark rights after the fact.

 

And the opposition process is only one form of dispute resolution.  Injunctive relief, passing-off litigation and motions at the Federal Court are a few of the choicer (and costlier) ways of dealing with trade-mark squabbles.  And all of them are exponentially more expensive when the trade-marks in question are not properly registered, maintained and protected.

 

I always try to drive this point home with clients.  It is of particular importance to smaller, newer businesses, or businesses with new product lines.  Branding is everything.  Commensurately, the proper legal foundation for that branding is of the utmost important.  And while there are few guarantees in law, I can assure you of this – if you have a successful brand, and that brand is not secured to the full extent available under trade-mark law, you will pay thousands or tens of thousands, or perhaps hundreds of thousands or maybe even one million dollars (*raises pinkie finger to pursed lips*) in trade-mark disputes throughout the life of the brand.

 

Call us and sort it all out before it comes to that.

 

Scott R. Young

We're off to Small Claims Court – now what?

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If you work for money, sell stuff for money, or rent anything in exchange for money, you probably already know something about the Small Claims Court and, more than likely, have had some experience there yourself.

Small Claims Court deals with disputes with a monetary value of up to $25,000. It’s where you go to collect on unpaid accounts, default leases, and compensation for that three-foot hole in the wall left by your last tenant. An action is brought by filing a Plaintiff’s Claim in the court closest to the location of the defendant or where the event giving rise to the claim occurred. The defendant is given a period of time to defend the claim by giving its side of the story and to sue for any money or damages it feels it’s owed from the Plaintiff. The Small Claims Court process then begins.

Claims do not go directly to trial. The first stage in the Small Claims Court process is the Settlement Conference, which is scheduled within 90 days of the date the defence is filed. A Settlement Conference is a conversation between the plaintiff and the defendant about the issues to figure out if an agreement can be reached that would dispose of the claim. Basically, the Court shuts the parties together in a room to examine the possibility of resolving the claim without having to go to trial. A Deputy Judge mediates the discussion and helps the parties focus in on the key issues at hand.

Parties are encouraged to come to court with their “bottom line”, the minimum value they would accept to dismiss the claim. There is something to be said for the satisfaction of achieving justice when you’ve been wronged. The problem is, justice often comes at a cost. Trials in busy courtrooms are scheduled months and months ahead of time. Legal fees can be anticipated (especially when charged on a flat fee basis, as does our firm). Unfortunately, the costs of taking time off work, travelling to and from court, and–as is often the case–waiting outside a courtroom all day for your matter to be called, are usually not.

It is for this reason that we encourage our clients to resolve their actions at the Settlement Conference. We work with our clients to generate strategies for early resolution of their actions that work to their best interests. Accounting, of course, for the real cost of going to trial.

After all, at the end of the day, it is all about money.

Ann A. Hatsios, Junior Litigation Associate,

Be Prepared – A Motto Not Just for Girl Guides Anymore

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If you work in the Greater Toronto area, then as I type this blog entry (Friday, G8/G20 day) you have likely realized this week that you needed to change how you work due to the summit meetings being held in our area.

Many have had to figure out how to work from home – and as of today, many are wondering if their home internet service provider will have enough band width to withstand everyone from Toronto working from home all at once.

Others have discovered the interesting back routes of Toronto in order to avoid closures due to motorcades and fences.

On Wednesday many of us also realized that we need to consider earthquake preparedness. Having grown up on the West Coast of Canada as soon as our office building started to sway, I reverted to the behaviour drilled into us in elementary school: I looked for overhead door jams to stand under. It was only at that time did I realize, there are no structural support door jams in our office – clearly, we need to address our earthquake preparedness.

Taking the lessons from this week a step further, all businesses, regardless of size, must be prepared in the event they are hit with a law suit. In particular, in this day of email and instant messaging, all businesses must have a Document Retention Policy, including an Electronic Document Retention Policy.

The document retention policy needs to set out the procedures for creation, storage, destruction and production of documents, including electronic documents. This involves addressing backup and storage needs, which thankfully due to advances in IT have come down significantly in cost and ease of accessibility for small businesses.

In addition to being law suit ready, a document retention policy ensures that you are complying with certain Government required retention periods, for e.g. Canada Business Corporations Act requires corporations to hold onto accounting records, meeting minutes and director’s resolutions for 6 years after the end of the financial year to which they relate and the Ontario Employment Standards Act requires businesses to hold onto employee name, address and dates of employment for 3 years after the employment ceases.

Failure to comply with legislated retention periods can lead to fines and the suggestion that businesses are hiding information in a law suit.

Be prepared – it’s not just for G8/G20 weekend – its for your entire business and this week is a good reminder of why you need to be prepared.

Inga B. Andriessen, Sr. Lawyer

What do you do? We're Business Lawyers.

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Lately I’ve found that I don’t like the way I have traditionally answered the question: “What do you do?”    My answer for the past 17 years has generally been “I”m a corporate/commercial trial lawyer”.  

This response has generally lead to blank stares and for those brave enough, the follow up question “what is that?”

It has only taken me 17 years (I”m such a quick learner) to realize the simpler way to describe what I do is to say “I’m a trial lawyer who only handles business law.”  O.K. …. so that is wordier and therefore, likely a work in progress, but it is a start down the correct path.

Corporate/Commercial Law is a technical definition.  It is a Law School definition and one that we boring lawyer types understand – but it does not embrace the energy of what we really do: we’re business lawyers.

As a trial lawyer, I pursue and defend the rights of businesses in any situation they find themselves.  Paul Voorn & Ann Hatsios are also Business Trial Lawyers (look, I shortened it already … I’m becoming a quicker study!)

As a business transaction lawyer, Scott Young of our firm advises businesses on all aspects of their work – from start up to wind up and the fun parts in between, including the particularly active Trade Mark aspects of business.

In my legal writing I’ve always believed simple is better – and stating we’re Business Lawyers just makes sense …. now to look into Trademarking that …. Scott?

Inga B. Andriessen, Sr. Lawyer (Business Trial Lawyer to be specific)

A little over a month to go until the HST

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It’s not as if this topic is something we’re looking forward to, but it will be a reality for Ontario at the end of next month – the HST is coming and it will make a change to the bottom line on your legal fees.

Currently only GST is charged on legal fees.  Certain disbursements, such as government fees, do not contain any tax at all and those disbursements will not be changing.

However, July 1, 2010 all legal fees will be subject to the HST effectively increasing your bill by 8%.

As businesses, we are all able to have the HST flow through, much as the GST has in the past and the expectation is that we will not notice the effect of the HST due to this.

 However, if your business is contemplating a transaction such as a shareholder agreement, contract or asset transfer, you may wish to consider incurring the bulk of the legal fees before June 30, 2010 in order to reduce the fees which may not be offset by purchases.

 Isn’t  this a happy thought, right before a holiday long weekend?  I suppose that is why Ontario calls it the May 2-4 weekend, you might need a 2-4 to feel better about the HST.

Inga B. Andriessen, Senior Lawyer

Workplace Violence

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On June 15, 2010, the Bill 168 amendments to the Occupational Health and Safety Act come into force.  The amendments require virtually all Ontario employers to conduct a violence risk assessment and to implement policies to address workplace harassment and violence.  This is something that all employers need to be aware of.

 

The requirements are interesting and somewhat unique.  For example, the amended Act requires that employers report the results of the workplace violence risk assessment to the employees, or a safety committee comprised of employees.

 

The amended Act further requires that the employer develop policies to deal with workplace violence that:

 

  1. control and minimize the risk of violence in the workplace;
  2. provide that immediate assistance is summoned in the event of violence in the workplace;
  3. ensure that incidents of violence are reported to the employer in a timely manner; and
  4. ensure that incidents are investigated

 

And of course, once the policies are developed, they must be implemented – the Act requires that as well.

 

If you have any questions about your obligations under the Act, about how to conduct a risk assessment or how to draft a workplace violence policy in compliance with the Act, please contact us.

 

Scott R. Young