Family Business

As we all look back fondly on the Family Day we just celebrated, or perhaps with a “see ya later suckers” attitude, it seemed like the right day to Blog about family businesses.

The mere mention of Family Business sets off the gentle ding ding of alarm bells in most Business Lawyers’ heads and often, not surprisingly combined with the “ding ding ding” sounds of a jackpot win.    Why is that?  Well, unfortunately, most Family Businesses have more problems than most, particularly in employment areas as well as succession planning.

Over 27 years of advising clients on Family Business matters I have the following pieces of advice to share:

  1. Do not force your adult children to work in the Family Business.
  2. Adult children, do not work in the Family Business out of guilt.
  3. If you employ your adult children, pay them an appropriate wage.
  4. If you employ your adult children, use an employment agreement, just like you would with a non-family employee.
  5. Do not micro manage your adult children employee.
  6. Have a proper succession plan for passing the Family Business to your adult children.

Failure to follow the above will likely lead to big legal bills, hashing out problems with the adult children and the other employees in the workplace who will mimic the discord in the relationship at the top.

Need some help?  Give us a shout!

Inga B. Andriessen, JD

Just Consent Already

It is very frustrating to deal with parties who act unreasonably in a matter.  That frustration gets taken up a notch (or forty) when the other party is self-represented, because they usually don’t know how the Court process works.

I am having a tonsillectomy mid-February and I am expected to be home for several weeks where I can’t work or speak (my partner will be thrilled!).

I asked an individual to consent to the adjournment of a hearing that was scheduled during my time off.  They said “no.” They think it was appropriate for my client to have to go and find someone else to be in my place.  They’re wrong.

My request for an adjournment came two months before the hearing and the request was more than reasonable.  When I advised them that I would bring a Motion to adjourn the hearing and I would be seeking costs against them, they appeared to be more than eager to attend the Motion to explain to the Deputy Judge why my surgery didn’t matter and why my client should find someone else to attend with them rather than adjourn the hearing.

Well, I attended the Motion and the other side didn’t attend!  They refused to consent, and they did not attend the Motion (see the frustration of dealing with self-represented parties?!). 

I obtained an Order for costs, and the Deputy Judge wrote in the order that the party was acting unreasonably, considering the circumstances of my requirement for an adjournment.

Failing to consent to a reasonable request, doesn’t make your case stronger, it makes you look unreasonable, and can in the long run, delay the proceedings.

When a party asks for an adjournment, and their request is reasonable, just consent already. 

Murray Brown, Licensed Paralegal

Death, Taxes & Secondary Wills

Even in death we often can’t escape the tax man. When we die, estate administration tax, or “probate fees,” become payable. These fees, which are approximately 1.5% of the value of a deceased’s estate, can add up.

However, some smart estate planning by your lawyer can limit and sometimes avoid the payment of probate fees.

Well let’s back up, and start with the basic’s: what’s probate?

Probate, also known in Ontario as a “Certificate of Appointment of Estate Trustee,” is a process where the court certifies a deceased’s will and the appointment of the deceased’s estate trustee. This process requires the payment of the estate administration tax mentioned above.

Since no one likes paying tax, whether alive or dead, you can take some comfort in knowing that probate isn’t always required. For example, if the deceased leaves real property that needs to be transferred or sold, that will require probate. The problem is if you have one asset that attracts probate, then your entire estate under your will dealing with that asset must be probated.      

Well guess what folks – as you may have already guessed from the title of this blog – you can have more than one will!

As probate fees increased over the last few decades in Ontario, some savvy estate lawyers started finding ways around too much taxation. Essentially you can use one will to deal with assets that require probate and the other for assets that don’t attract probate on their own. People also often use secondary wills to deal exclusively with their business assets.     

And that’s not all – I bet you didn’t know that wills probated by the court become a public document. So secondary wills, which don’t attract probate, provide greater privacy as well to the deceased, their beneficiaries, and their estate. 

While there really isn’t anything more certain than death and taxes, a little estate planning can’t hurt.   

Robin K. Mann, J.D., Associate Lawyer

It’s Your Right To Not Receive Spam

It amazes me how many times I check my email, professional and personal, and see the amount of “junk” mail that is there, especially with all the big hype when CASL came into force July 1, 2014.  Sure, I ordered off your website ONCE, does that mean I need to get your emails every three hours with your deals. 

If you are like me, you just keep going in and deleting your junk folder.  In the process of doing that, you may or may not be deleting items that were marked junk, but not really junk (I may have done that a time or two).  Canada’s Anti-Spam Legislation (“CASL”) was created so we don’t have to live in fear of our emails.

You have the right to not receive these emails if you don’t want to.    All you have to do is click the “unsubscribe” link, which is usually contained near the bottom of an email somewhere and not that easy to find.  If you unsubscribe, then in a perfect world you will no longer receive these emails.   Our firm’s CASL unsubscribe is found clearly at the bottom of every email that is sent out from our firm.

What if you do receive more emails after unsubscribing?  That’s why we have CASL.  There is process in order to report.  The Government of Canada has a website “fightspam.gc.ca” which will give you the tools you need in order to report the spam.  This may surprise you (not) – they receive about 5,000 complaints per week.  PER WEEK.  That is a lot of spam. 

The government is trying to impose fines to ensure compliance and there are decisions reported where the Commission imposed monetary fines.  An individual was fined $15,000 for 10 violations, and a company was fined $50,000 for nine violations.  If you are a company, how is your CASL unsubscribe managed?  The last thing you want is a violation and having to pay a fine for non-compliance.

I think I’m going to go into my email and unsubscribe to keep my email clean (I didn’t know I shopped on-line that much) and to start this year out right with email management, what about you? 

Christine Allan, Law Clerk

It’s Not Bullying, It’s Litigation

Ontario’s Civil Court system is an adversarial system.  This means lawyers on opposite side of the case are paid to put forward opposite points of view.   This means the lawyers will disagree.  They can do so civilly, but at the end of the day, they are paid to be adversaries.

Recently, I’ve had a couple of large files where new, junior lawyers have come onto the file for administrative tasks.  When advising them that I disagree with their positions, these lawyers have alleged that they are being bullied.   One young lawyer even accused me, having left one message for their assistant following up on a request for a document, of harassing their assistant.

Seriously.

I appreciate there are times when lawyers behave uncivilly and in those cases, the lawyers are being “uncivil”.  But bullying?  Come on.   If you’re a client, are you paying your lawyer to cry “bullying” when opposing counsel takes an opposing position?  Of course not.  You expect your lawyer to stand up to the opposing counsel, put forward your position and advance the case.

Bullying is a serious issue that should not be trivialized by lawyers on opposing sides of a file who don’t like what they’re hearing.  

Not all lawyers need to be litigators: if you don’t like confrontation then it’s not the career for you.  That’s o.k.   There are other ways to use your law degree that will avoid confrontation: preparing Wills, being a research lawyer or creating corporate documentation.  

If, however, you choose to be a litigator then you have chosen to fight, so put the bullying language away and just get down to being the best representative for your client.  

Inga B. Andriessen JD, Senior Lawyer

       

What Makes Andriessen & Associates So Great ?

I was recently in Court and a very large Toronto law firm brought a Motion to reinstate an action that had been dismissed for delay.

The Defendant argued that not only should the action remain dismissed for delay, it should remain dismissed for the Plaintiff’s failure to produce documents they were ordered by not one, not two, but three deputy judges.

The Defendant’s lawyers took issue with the fact that over a span of 1.5 years, the law firm representing the Plaintiff had 7 lawyers on the file – that’s right, 7!

What does that mean?  Well, 7 lawyers having to review a tonne of paperwork to be able to represent their client, obviously causes significant delays.  The Defendant’s lawyer told the court that every time they called the firm, they got the same excuse: “I’m new on the file, I have to review it and get back to you.”  They apparently never did get back to them.

So, what does this have to do with the title of this blog?

That does not happen at Andriessen & Associates!

When a file is assigned to me or a lawyer at our firm, that file usually stays with that individual until its closed. 

I think as legal representatives we owe it to our clients that their representation remains consistent throughout litigation.  It prevents delays and costs having each representative having to familiarize themselves with the file over and over again.  It also helps to build a relationship with the client.

There is nothing more annoying than calling a lawyer or paralegal and they tell you that they would will get back to you, because they have to review the file.

I currently have about 50 active files (if not more), and if you ask me for an update on any one of those 50 files, I can tell you where we are at.  Just don’t ask me what the file number is, because I’ve never been able to remember them.  Our law clerk Christine Allan however, can remember every file number.  It’s impressive.

I am not sure if the turnaround in larger law firms is high, but it is sure complicates things when you have multiple lawyers on a file and can’t move the matter forward. 

Thankfully, we handle our files from start to finish, so you know who you are working with, and without delay.

Murray Brown, Licensed Paralegal

Ignorance Isn’t Bliss if Your Being Sued

Have you or your company been served with a Statement of Claim? If so, this means exactly what you think it means – you my friend, are being sued.

Whether you are being sued by a client, vendor, or another business, this will not go away on its own. It may be that you didn’t pay an invoice to a vendor because the work they did was shoddy, or you didn’t carry out your end of a business agreement because the other company wasn’t delivering on their end of the contract. You may feel completely justified in the reason you didn’t do something, and you may feel that being sued is completely unfair, but the last thing you should do is ignore it!  

Once you’ve been served with a Statement of Claim, the clock starts ticking. If you were personally served within Ontario, you have twenty days (including weekends) to serve and file a Statement of Defence on the party suing you. If you were served in another province or in the United States, you have forty days to serve and file your Defence.

Your Statement of Defence is your response to the Statement of Claim. It either admits or denies each fact set out in the Statement of Claim, as well as sets out the facts you intend to argue. 

Now, let’s talk about what happens if you don’t take our warning seriously. Well once the timer runs out on your twenty days, the party suing you (A.K.A. “the plaintiff”) can ask the Court to note you in default. This means that you’ve lost the right to be notified of any future steps in the action. The plaintiff can then bring a motion for Default Judgment (without notice to you) and ask the Court for an Order that you pay all amounts set out in the plaintiff’s Statement of Claim.     

If you or your business have been noted in default, you can ask the Court to have the noting in default set aside. But this won’t come cheap – you’ll likely have to pay the plaintiff’s costs to do so.  

Remember, if you’re served with a document that reads “A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU” call a lawyer because this isn’t going away on its own – well, if you call the right lawyer, it just might!      

Robin K. Mann, JD, Associate Lawyer

Can a Law Clerk do Everything?

We always do what we can to keep fees down for the client and we have mentioned it time and time again about our flat fees. 

As much as we try to keep fees less surprising for our clients, there are just some areas where there can be no compromise. 

For instance, the majority of our corporate matters can be handled by the law clerk, under the direct supervision of a lawyer.  This means that the lawyer sets out the ground work, the law clerk fills in information and then the lawyer puts the finishing touches on the document.  This is team work and it’s efficient and cost effective of our clients. 

What don’t you want the law clerk to do?  You don’t want them to have control over litigation matters.  To a degree they are involved, however, litigation is 99% run by the lawyer.  Why is this?  To be frank, I’m not a lawyer and didn’t go to University, law school or write the Bar Exam, and I really don’t want to be responsible for missing a crucial piece of information that maybe should have been plead, or denied, in a pleading.  If that were to happen, that would mean unnecessary legal fees and disbursements out of your pocket, not to mention there being a association called the Law Society of Ontario which prohibits me from practicing law.

There are still some steps that law clerks can complete in a litigation matter such as calculation of costs on an action, searching, and drafting Affidavit of Documents, but the rest you will want to leave up to the highly trained and skilled lawyers. 

Trust our offices when we say we will do what we can to keep your fees down by utilizing the law clerk, but know that I will not be the one drafting your Statement of Claim. 

Christine Allan, Law Clerk

Holiday Ho Ho Ho

The holiday season is here and from the paranoid, Scrooge McDuck Laywer point of view, this brings a lot of potential liability into your Business.

Let’s start off with this Blog title.  Ho Ho Ho is only o.k. in the workplace if it is in reference to Santa’s laugh.  It is not o.k. to walk through the office randomnly saying “ho ho ho” – someone is going to complain they are being bullied.  You really don’t want to launch a workplace investigation into that do you?

Moving on to the Holiday Party that is open bar and no significant others allowed.  Why do these still happen?  You might as well include in the invitation “hey, come get drunk and hit on your co-workers without your significant other to complain.”   Instead of creating work for family law lawyers, consider including significant others as tends to encourage better behaviour.

The final consideration is the holiday decorations in the office.  If someone really doesn’t want a decoration on their door because of religious reasons, do not force them to share the spirit of the season.  Your forced festivities are not worth the Human Rights Complaint that is sure to follow.

Overall, enjoy the season, but think about “traditions” and how the times are changing and your Business needs to react to those changes.

Inga  Andriessen, JD

Big News in Small Claims Court!

In 2010, the Ontario Government increased the monetary limit of the Small Claims Court from $10,000.00 to $25,000.00.

On January 1, 2020 the monetary jurisdiction of the Small Claims Court will increase to $35,000.00 as the Government believes this will help resolve more matters expeditiously and reducing the number of matters proceeding in Superior Court.

There have been whispers for some time that the monetary jurisdiction would increase to $50,000.00 to catch up to other provinces in Canada, however $35,000.00 is a step in the right direction.

If history repeats itself, the Small Claims Court will be inundated with lawyers traversing their Superior Court files under $35,000.00 to the Small Claims Court.  But like in the past, we all adapt and adjust to the onslaught of new matters being heard in Small Claims Court.

Hopefully this time around, additional administrative support and Deputy Judges will be hired so that the Small Claims Court process doesn’t bogged down. 

Looks like I will be getting busier in the New Year!

Murray Brown, Licensed Paralegal