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

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

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

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

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

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

Time for Spring Cleaning – Law Firm Style

Spring has sprung so you know what that means – it’s time to Spring Clean, and no I don’t mean your house.   

Now that winter is done (hopefully there won’t be anymore snow days), you should take a look at refreshing the office and dusting off those cobwebs, whether it be your home office or physical office.  Here are some things you should consider when “spring cleaning for the office”.

1. Review Employee Agreements and Handbook: There are always changes that will affect your current Employment Agreements, and in turn, could affect your Handbook.  Conducting a review of these documents every few months can ensure that your agreement is almost bullet proof.

2. Corporate Minute Book: Every year, corporations must conduct meetings, and sign annual resolutions.  This is also in connection with financial year ends and ensuring that your accountant is on top of the Financial Statements.  A review of your minute book and your corporate structure should be done to ensure you are compliant, and make sure that any changes in the corporation is properly reflected in the minute book. 

3. Accounts Receivables: Was winter slow for your company?  Did cash flow slow down?  Review your accounts receivables, there may be a client that you didn’t realize missed paying an invoice.  Remember Andriessen & Associates’ 30-60-90 sue™. 

4. Estate Planning: If you own shares in a company, you will want to make sure that those corporate assets are carved out from your Personal Will.  In Ontario, you can still make a Secondary Will for corporate assets, which could make for probating and administering your Personal Will less expensive. 

If you review the above every so often, you should be in great shape for the unexpected.  We all hope for smooth sailing, especially when we really are pushing for that nice spring weather for our gardens, but some things you just can’t prevent.  Having good precedents and a regular review process should keep you from those wintery storms. 

Christine Allan, Law Clerk

Find A Good Ol’ Trustee Person to Act on Your Behalf

Who have you appointed as your power of attorney? How about the estate trustee in your will?

People don’t often give enough thought to the appointment of their powers of attorney and the estate trustee for their wills. We won’t even get started about the people who don’t even give a thought to the need for these important documents to begin with (we will save that for another post all together)! If you don’t appoint anyone then you lose control of who acts on your behalf.

If you pass away without a will appointing an estate trustee, then your spouse/partner or a close relative must apply to the court to be appointed as an estate trustee without a will. You also run the risk of relatives fighting for the appointment. In these cases, the matter gets referred to a judge to be decided. This not only seriously slows down the administration of your estate but can deplete your estate assets in legal fees. 

If you don’t appoint a power of attorney for property, then the Public Guardian and Trustee becomes your statutory guardian. Your spouse, partner, or relative would then have to apply to take over from the Public Guardian and Trustee. This is expensive and takes time to achieve.

In the case of your power of attorney for personal care, the Health Care Consent Act dictates who can act for you if you don’t appoint someone yourself. This Act sets up a hierarchy of who has dibs on applying for the job: first, it’s your spouse/partner, then your parent, then your sibling and lastly, any other relative.

The problem in all these cases is that the person appointed by statue, or by their own application, may not be the person you would have chosen to act for you. Whether it’s administering your estate after you’re gone or making important decisions on your behalf while you are alive, this is not an appointment you should take lightly. For either position, it’s often best to find a trusted family member or friend who has a genuine concern for you and your well-being.

We often see clients come in wanting to appoint their children as their powers of attorney and estate trustees. They want all their children named jointly, not because they are all best for the job – no, it’s because they don’t want any hurt feelings. This is the worst way to approach the appointment of your power of attorney or estate trustee. Not everyone is cut out for this job, and they shouldn’t be given it simply because you don’t want them to feel left out. You need to consider whether your children will get along, or whether they will disagree to the point that little gets accomplished on your behalf. If you feel you must appoint all of your children, then you might want to consider appointing them “joint and severally.” This means that they don’t have to be unanimous in their decisions. But as you can imagine, that can open a whole other can of worms.

Be pro-active! Think hard about who cares enough about you, and knows and respects your wishes enough to see your intentions through.   

Robin K. Mann, Associate Lawyer

So You Have Been Garnished – now what?

You got a Notice of Garnishment telling you that your bank, another person who owes you money or your employer has been “garnished”: what does that mean?

Well, it usually means that you failed to file a defence to an action you were named as a defendant, and then judgment was awarded against you, usually for the amount of the debt, plus costs and interest.

Garnishments are usually issued one of two ways: (1) against your bank account; or (2) your employment.

I like to think of Garnishment using the analogy of a game of catch. Someone is throwing you a ball. I jump up and intercept the ball, thereby “garnishing” the ball. In theory anyone who owes you money can be garnished.

If your bank account was garnished, your bank account would be frozen and 100% of the funds in your account are withdrawn and sent to the Court to be given to the creditor. There are special rules if this is a joint account.

If your employer was served with a Notice of Garnishment, 20% of your net wages are garnished from your pay until the full amount of the Garnishment is satisfied. This is 50% if the Judgment is a Family Law matter.

What happens if your employer does not comply with the Garnishment?

The Notice of Garnishment is a Court order, and should they fail to comply with that Court order, the creditor can bring a Garnishment Hearing and obtain judgment against your employer.  Ditto for a bank who refuses to withdraw the funds from your account.

So, what do you do if you were garnished?  If you feel that you do not owe what is being claimed against you, you should have defended the action.  But sometimes things happen, and you don’t.  You would have to bring a Motion immediately to set aside the judgment so that you can file a defence.  This also stops the Garnishment, and usually the freeze on your account is lifted.

But if you genuinely owe the amount claimed, try to work something out with your creditor to avoid having to pay costs and interest when you inevitably lose at Trial.

Garnishments are not only stressful, they are also embarrassing.  Especially if the account that was garnished was your payroll account and you have to explain to your employees why their cheques bounced, or you try to make a purchase at the store and you’re declined.

Murray Brown, Licensed Paralegal

Professionalism Matters

The word professional is battered about a lot these days. When I first went to law school, it was said that the difference between a profession and an occupation is that professionals have to put their clients, students and patients before themselves. That makes a lot of sense, though in this day and age it seems it is happening a lot less.

Recently our firm was accused of being unprofessional by a company we refused to act for after the company was unable to provide us with the documents, required by the Law Society of Ontario’s “know your client” obligations.

Obviously, refusing to act for someone because we cannot meet our professional obligations is the opposite of being unprofessional.

Of course, not every lawyer is as professional as our firm. A real estate lawyer who thought it wise to defend himself in an action brought by our firm on behalf of a client, felt that it was o.k. for him to contact our client directly – thereby violating one of the Rules of Professional Conduct for lawyers in Ontario.

Another lawyer from a large Bay Street firm recently advised our firm that we had not complied with the Rules of Civil Procedure in serving their client …. wait for it ….. directly in accordance with the Rules of Civil Procedure and accused us of “sharp practice” in doing so.

Being a professional means knowing the Rules of Professional Conduct and abiding by them. They are “Rules” not suggestions and they are there to protect our clients, who we are to put before ourselves.
While our firm is an aggressive litigation firm, we only play within the Rules and will always continue to do so.

Inga B. Andriessen JD