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

Terminating an Employee During their Probationary Period

Do it yourself employment law is never a great idea and yet, almost daily we’re introduced to businesses who did try it to go alone, only to now need our help with a lawsuit, a Human Rights Complaint or an Employment Standards investigation.

I get it.  Lawyers can be expensive and if you’re running a business in a tough economy, doing as much as you can on your own is key.  Of course, that ignores the fact that litigation is far more expensive that the “boring desk work” side of law, you know, the kind that helps you avoid litigation and you can actually budget for.

One of the areas non-lawyers often get into trouble with is terminations during the probationary period.  The probationary period can be as little as three months or longer as set out in the employment agreement.

If you want to terminate an employee during their probationary period, you must:

(a) make a good faith determination that the employee is unsuitable for permanent employment; and

(b) give the probationary employee a fair and reasonable opportunity to demonstrate their suitability for the role.

When providing a termination letter to the employee you want to be certain you’ve indicated items a and b are part of the wording.  Now, terminating during the probationary period doesn’t always mean you don’t have to pay money and benefits in lieu of notice.   That depends on facts and employment agreements.

Sound complicated?  It is and that’s why you should reach out to a lawyer before terminating.

Inga B. Andriessen, Senior Lawyer

Are you using the right method of communication?

We just had a great work/life balance lunch at the office and the topic of discussion was “Communication in the Workplace”. 

There are many methods of communication, especially in our digital world, and ensuring that the proper form of communication is used, as well as effective communication, is key to successfully getting work done.

While this blog could be 10 pages, I will keep it short and touch on the proper form of communication and when it is appropriate?

Let’s start with the phone, which you would think is the most appropriate form of communication – but is it the most effective?  When it comes to work and communication between co-workers, the phone may not be the best form of communication.  Quick check in’s, simple questions or just needing to talk to someone, of course it would be the quickest and acceptable. 

However, when it comes to delegating or assigning work, it may not be the most effective type of communication.  Email may be the best method of communication in this scenario, that way you can put in writing the task at hand, set out what you are looking for and providing a timeline.  This I find the most effective on the receiving end as I can then read and digest the email, start formulating my plan of tackling the task, delegating what needs to be delegated, and then drafting and email back with follow up questions.  Most of the time, a quick phone call to discuss the email is then needed and certainly appropriate.  

When not to use work emails?   A rule of thumb that we have here is if you wouldn’t put it on letterhead, don’t put it in a work email.  If you saw a funny gif or a meme, the work email is not the place for that.

What about the use of a chat through a collaboration app such as MS Teams?  Right before Covid, our offices started using a chat app, but it wasn’t really a big hit until we all started to work remotely.  It was the way we all said good morning, good night, and is the right place for those funny gifs or memes.  To this day, even though we are in the office most of the time, this is the way we all say good morning and good night.  This form would not the best place for assigning work, unless it was a quick ask like a document or email you were looking for.  It is also a great place where we can check in to see how someone is doing if you know they are having a busy day and to check on workflow.  

Making sure you use the appropriate form of communication is key, and I know there are areas where I can improve on my communication with co-workers.  I would say that this work/life balance lunch was effectively communicated.  

Christine Allan, Senior Law Clerk

Alternative Dispute Resolution Options

It is no secret that the declining speed in which disputes are resolved through the court system is a huge issue. In many cases, motions and trials need to be booked many years in advance. This problem often referred to as a lack of access to justice is one of the biggest issues facing the legal system.

The main cause of this problem is that there are too many cases in the system at any given time. People will always have disputes that need to be resolved so there needs to be alternative ways to end these legal disputes outside of the court system.

This is where alternative dispute resolution comes in. The three primary methods of alternative dispute resolution (ADR) are:

  1. Negotiations between the parties at any stage of litigation for the purpose of an early resolution/settlement
  • Mediation with a mediator, who is an independent professional and can help both parties reach an agreement by suggesting a settlement
  • Arbitration with an arbitrator, who is a neutral professional, whose role is to hear the parties and make a final decision

Mediation and Arbitration support the overall resolution of disputes faster. Some of the benefits of Mediation and Arbitration are that the parties have the ability to choose a neutral forum and a neutral decision maker who may be an expert in the subject matter of the dispute. This allows the resolution of disputes in a timely and comprehensive way which allows the parties to avoid much of the delay often associated with going to court.

Mediation and Arbitration are not simple and can still ultimately cause a delay in litigation if unsuccessful. That is why we always recommend that parties allow our firm to represent them when using ADR options. If you would like to start or resolve a legal dispute, please give us a call so we can help you reach a resolution.

Ariel Dorfman, Associate Lawyer

Shareholder Showdowns

Shareholder disputes can be a challenge and a nuisance for businesses, potentially jeopardizing the stability and growth of a company. Today we explore shareholder disputes and ways to resolve them.  

Before jumping to resolution strategies, it’s crucial to identify the root causes of shareholder disputes. Common triggers include disagreements over corporate strategy, financial concerns, management decisions, or perceived breaches of fiduciary duties.  Recognizing the underlying issue is the first step towards finding an amicable solution.

With the exception of certain rare cases, its best to explore alternative dispute resolution methods before resorting to any sort of litigation as a disgruntled shareholder. Mediation and arbitration provide shareholders with an opportunity to resolve conflicts outside of the courtroom, saving time and resources. A skilled mediator or arbitrator can facilitate communication, foster compromise, and guide parties towards mutually beneficial resolutions. Of course, this all depends on whether the warring shareholders are willing to compromise and hear each other out. The shareholder’s state-of-mind is important to consider when exploring this option.

If diplomacy fails and disputes escalate, litigation sometimes becomes inevitable. The courts provide a platform for shareholders to present their case before a judge who can make any number of rulings on the matter. 

Mediation, arbitration, and litigation are expensive, time-consuming options, where emotions can be heightened, and business relationships lost. So, why even let it get to that? 

Prevention is the best option when it comes to dealing with shareholder disputes. Drafting clear and comprehensive shareholder agreements and corporate bylaws can pre-emptively address potential disputes – effectively nipping them in the bud. These documents should outline mechanisms for dispute resolution, such as buy-sell provisions, shareholder voting rights, and dispute escalation procedures. They are meant to anticipate any number of scenarios that may arise during the lifetime of the business.

We always recommend clients avoid a potential showdown with their fellow shareholders by seriously considering a shareholder’s agreement. You’ll definitely wish you had a shareholder’s agreement once the gloves come off!   

Robin K. Mann, Associate Lawyer

Cost Awards in Small Claims Court Motions

I recently attended a Motion to set aside the Default Judgment and terminate the Garnishment we issued against the Defendant’s bank account.  Their lawyers were requesting costs of the Motion, payable by not only our client but me personally, and they were asking for close to $5,000.00!  Well, that was a first!

Recently, I obtained judgment against several Defendants for a debt owed to our client.

We are unable to effect service personally, so we brought a Motion and obtained an order for subservice.  The Defendants were served by mail.  Standard stuff.

After the Defendants failed to deliver a Defence, they were noted in default and I attended the Assessment, and our client was awarded judgment.

We garnished the Debtor’s bank account, and it was at that point they involved themselves in the proceedings.  Also, standard stuff.

Counsel wanted me to personally pay their client’s costs simply because they felt we should not have obtained an order for subservice and not served their clients by mail (and a few other excuses).

A successful party to a Motion is entitled to costs, and the Rules of the Small Claims Court dictate the amount of those costs.  Newsflash: it sure isn’t $5,000.00!

Rule 15.07 of the Small Claims Court allows the successful party costs of $100.00, exclusive of disbursements unless the Court orders otherwise because there are special circumstances.  The cost to file a Motion is currently $127.00.  So, a successful party would be entitled to $227.00.

Historically, in Motions to set aside a Default Judgment, the Defendant pays the Plaintiff their “throwaway costs,” which are the costs incurred by the Plaintiff to enforce the Judgment prior to being served with the Motion. 

In our case, the Court ordered that the Parties pay their own legal fees of the Motion, which was an appropriate decision.  The request that an opposing representative personally pay costs is inappropriate and was unjustified.

Costs at a Motion are minimal and aren’t always guaranteed.  The Court can exercise its discretion award costs on a Motion, and must be reasonable in the context of Small Claims Court.

Murray Brown,  Paralegal

Being a Commercial Landlord is not easy.

Murray Brown has blogged a few times about representing a Landlord on the residential side of things and he certainly has some interesting cases, however, being a residential Landlord is not the only type of Landlord.  What about being a Commercial Landlord?

Owning any type of investment property that you rent out, whether residential or commercial, can be tricky and overwhelming.  Setting yourself for success at the start of your endeavour is key.

The first steps to becoming a commercial landlord, in my mind, would be to ensure you have a good lawyer to draft of your Lease Agreement. 

For commercial tenancies, the Lease Agreement should not be a short document.  There are numerous items that need to be considered in this type of Lease Agreement, such as net rent, additional rent (and what falls under that), parking spaces, fixtures and chattels, yearly rent increases, who pays for utilities and taxes, what the renewal timelines are, the list goes on.

If you are Commercial Landlord and some of what I just mentioned is lost on you, you could have some serious issues.  Yes, the agreement is very legalese, but a good lawyer will take the time to explain everything in plain English for you to understand each item contained in the document. 

You don’t want to get stuck with a Lease Agreement which you thought had the tenant paying for utilities when the tenant thought the landlord was paying for utilities, then before you know it, there are thousands of dollars outstanding. 

Before you get yourself into a sticky situation, know what you are entitled to and if you are about to become a Landlord, get a lawyer involved, it will save you a lot of trouble and money in the long run. 

Christine Allan, Senior ILCO Law Clerk

Don’t Ignore Your Corporations Legal Requirements

Has your incorporated business been named as a party in a lawsuit? Is your incorporated business contemplating initiating a lawsuit?

It is important to keep in mind that The Law Society Act prohibits anyone other than a “licensee” (Lawyer) from providing legal services.

The Ontario Rules of Civil Procedure state that a party to a proceeding that is a corporation shall be represented by a lawyer, except with leave of the court.

There have been circumstances where courts have granted leave to a corporate party to be represented by a non-lawyer. Many, if not all, of these cases are where the individual seeking to represent the corporation is a senior officer with the corporation or a sole shareholder because the individual seeking to represent the corporation was sufficiently connected to the corporation that they could be considered the “alter ego” of the corporation itself. (Lamond v. Smith, 2004 CarswellOnt 3213)

The Ontario courts have emphasised that allowing non-lawyers to represent corporations is the exception and not the rule. There are two good reasons for this.   

  1. When a court permits an individual to represent a corporation, it is permitting that individual to represent someone other than themselves in a matter before the court. The courts have ruled that this is comparable to allowing a non-lawyer to represent a litigant in matters before the court which is like permitting the unlicensed practice of law.
  2. Treating a closely held corporation as merely the alter ego of its shareholder or shareholders and allowing them to represent the corporation ignores the fact that, at the end of the day, the individual or individuals can walk away from any judgment against the corporation free from personal liability. This could lead to scenarios where corporate officers could cause endless litigation without fear of personal liability for even the other side’s costs.  This would not serve the public interest. (Leisure Farm Construction Limited v. Dalew Farms Inc. et al. 2021 ONSC 105)

In my first court appearance after being called to the bar, a corporation had a lawsuit they started against our client dismissed by the courts for failing to appoint a lawyer. The sole shareholder of the corporation ignored the courts repeated requests to appoint a lawyer.

The litigation process is quite long and can be complicated, however, with proper legal representation everything can go smoothly. If your corporation (or you individually while we are at it) needs clear and cost-efficient legal advice do not hesitate to reach out to anyone on our amazing team.

Ariel Dorfman, JD  Associate Lawyer

Getting Back on Track for 2024

Now that we are officially one month into 2024, let’s take a quick breather to see how this new year is going.

They say its usually by this time that our new years resolutions are broken (if they even make it this far). Why is this? Well, it’s usually one of the following culprits:

  1. Unrealistic goals
  2. Lack of specific plans
  3. Overwhelming expectations
  4. Lack of accountability
  5. Lack of intrinsic motivation
  6. No immediate rewards

Whatever the reason, now is the time to reassess and refocus – we can help with that!

For example, what better time to do some much needed (likely neglected) corporate housekeeping? Getting professionally organized for 2024 is a realistic goal that we can help you achieve.

Whether its finally getting around to organizing your corporate minute book or having your employee contracts reviewed and updated (you would be shocked to learn how many businesses have unenforceable contracts with their employees!), there are real tangible things you can do to get your business on track for 2024. 

We can even keep you accountable with our (relentless) follow ups! Don’t worry, you’ll love our email reminders. 

What’s in it for me, you ask? Well, if you want a reward – how about not having to pay out excessive amounts of termination pay when terminating an employee because you have an enforceable contract? Or, not having to spend thousands of dollars down the road to bring your corporation’s books up to date after years of bookkeeping neglect? If you ever plan to sell your business or bring in a shareholder or investor down the line, then getting organized will be an unavoidable eventuality. 

This year will be over before you know it, so whatever you are putting off for 2024, its time to face it! That reminds me, I’m going to go jump on my Peloton… after I clear off the cobwebs.   

Robin K. Mann, JD Associate Lawyer

Mentor your Students and Juniors

I am frequently in motion court in real life these days and see many associates and articling students from other firms appear in “real court” for the first time.

Most of those people have not been told what to do in “real court”.   They don’t know basics, like where to stand, when to bow, how to fill out a counsel sheet and the list goes on.

If you’re a lawyer who went to real court before covid shut that down for most people, take a moment and walk your lawyers through the process.  One is a better advocate for one’s client when they’re not stressed about “did I bow correctly” etc.

Another skill that appears to be lacking with recently called lawyers is how to properly wear their Robes.  Here is a handy graphic that helps with almost everything: .   The one thing it leaves out is the two long black pieces of fabric in the inside of your robes: tie those together behind your back and it stops your robes from sliding down.   

If you’re new to being in real court and have questions, there is no doubt a more experienced lawyer around who would be happy to answer questions and tell you where the robing room is so you can ditch your coat and winter boots, so don’t be shy, ask for help!

Inga B. Andriessen, JD, Principal Lawyer