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If your bank account was garnished, your bank account would be frozen and 100% of the funds in your account are withdrawn and sent to the Court to be given to the creditor.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

mbrown@andriessen.ca

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
iandriessen@andriessen.ca

Who gets your stuff when you die?

Often times when drafting your Will, you can feel pressure to pick the right individual for the many roles that are involved in administering a Will.  For example, people have a hard time selecting what they want to do in the event of a family tragedy, or in the Will known as the “failure of gifts” provision.

Simple estate planning usually provides for your estate to go to spouse, then children and usually on to grandchildren.  Scenario: You planned a family trip, just you and the kids, and there is a freak accident. 

I know, this is certainly not a pleasant thought and I don’t want you to think this when you are planning your next family trip, but when you are doing your Estate Planning, you need to think about it. 

Most people are at a loss.  Sure, you can give your Estate to your parents, or your brother, you can do whatever you want.  Really put some thought into it.  

What if you don’t have any extended family to pass it on to?  Why not support a charity instead?  Perhaps you are an animal lover and you have a local animal daycare taking care of your pet.  Why not give them something?  Or support your local Humane Society.

If you leave this provision silent, what do you think will happen with your Estate?  You probably already know, and you have worked hard your whole life, do you really want your Estate to be dealt with how the government sees fit?  I didn’t think so.

The next time that you review your Will, or are thinking about doing your Wills, put some serious thought into the matter.  It really does matter and if there was that charity that means something to you, it really does go a long way and every little thing is appreciated.   

Christine Allan, Law Clerk

callan@andriessen.ca

The Good Lawyer (Part 5) Assertiveness

A few months later, and here we finally are! We present to you the much anticipated (well, we like to think so) final installment of the Good Lawyer!  

As a short recap, in our previous posts we have already pointed out the value of having/or being a lawyer who is great at:

  1. communication;
  2. being resourceful;
  3. being responsive; and
  4. having good judgment.

Today we discuss our fifth and final trait ….. ASSERTIVENESS.

In the legal field, there is a very fine line between assertiveness and aggressiveness – which is why success is often mistakenly associated with aggressiveness.  People sometimes complain that a lawyer isn’t aggressive enough. But being overly aggressive is not actually an effective trait in a lawyer.

Overly aggressive lawyers are those who ignore other’s opinions and are less likely to help parties co-operate in reaching a settlement. This means they can lead their clients to rack up huge legal bills. 

Rather than being aggressive, the goal for a good lawyer should be to practice greater assertiveness. Assertive lawyers are those advocates who are not only able to clearly state their opinions and be heard, but they are able to do so without being disrespectful or unprofessional to others. But don’t get us wrong, an assertive lawyer can and should say “no” when the situation calls for it – but it’s all in the delivery!

What’s so interesting about this trait is that it engages some of the other traits we have already discussed. Being assertive requires the ability to communicate clearly and confidently. It also requires good judgment – knowing when to press an issue and when to step back and evaluate your legal position. Assertiveness is an art that a great lawyer aims to master.  

Moreover, some lawyers don’t realize how small the legal community can be. They don’t see how being a bully in this relatively small legal community can hurt their clients. Being assertive but respectful as an advocate can foster better working relationships with other lawyers and judges. When a lawyer has a reputation in the community as someone who is assertive (rather than a bully), opposing counsel is more likely to listen to their viewpoints and willing to negotiate. 

At Andriessen and Associates we don’t get pushed around, especially by overly aggressive lawyers that are all bark and no bite. We know that a well-prepared, well-reasoned, and well-delivered argument goes a lot further in the long run than digging in your feet like a short-sighted bully.  

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca

Suing on Principle (Only the Lawyers Win)

Before you proceed with or defending a lawsuit based upon principle, you must ask yourself: is this a good idea?  Most of the time, the answer will be no.

Throughout my career, clients have instructed me to proceeded with litigation based on principle, and not upon monetary damages. 

For example, I had a client once sue a party over a $500.00 invoice because of they were upset with the defendant, then only to be enraged that (shocker!) their legal fees were in excess of that AND they ultimately ended up settling for less than what we claimed.

Parties who experience the time, uncertainty of ligation and most importantly the expense of suing, usually find out quick that it is less compelling to do sue someone because they’re upset over the situation.

Is it really that important to go through litigation for a Judge to potentially say you’re right?

A person who sues or defends a law suit on principle (see client above) are usually acting emotionally.  People who are emotional do not always think reasonably and make decisions they may not necessarily make normally.  This can be a big problem for them.

There is no place in litigation for emotions and your emotions can end up costing you a lot more than hurt feelings.  It can really hurt your pocketbook with no return.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

What I’m looking for in a Bencher

If you’re not an Ontario Lawyer, then this Blog is not for you. This is about our upcoming Bencher Election for the Law Society of Ontario. Benchers are elected representatives of Ontario Lawyers and regulate the conduct of Lawyers in Ontario.

I’m looking for a Bencher who will not hit me with a surprise agenda. I didn’t appreciate the vote from LSUC to LSO coming out of the blue and don’t want that to happen again.

I’m looking for a Bencher who supports the LPP. It’s a better, more consistent lawyer who emerges from the LPP rather than from Articling.

I’m looking for a Bencher who believes there is a difference between paralegals (who I value) and lawyers and that allowing paralegals to practice in complicated areas of Family Law, without a law degree is not access to justice, it’s access to the perception of justice.

I’m looking for a Bencher who is willing to tackle the complicated issue of too many lawyers in Ontario and not enough jobs for those lawyers.

I’m looking for a Bencher who is willing to advance an advertising campaign, aimed at High School Students warning them of the job shortage and possible massive student loan debt they’ll incur to become lawyers.

Are you that Bencher? If so, let me know!

Inga B. Andriessen, JD

iandriessen@andriessen.ca

Always be Honest with Your Lawyer or Paralegal

It is very important that you are always honest with your lawyer or paralegal about the issues in a court case.  Even if it makes puts you in a bad light.  Full disclosure is key in a successful client/representative relationship.

If you are not honest with your legal representative, they can’t help you.  Not only that, failing to tell  the truth will only hurt you and cost you money in the long run.

It may also cause you to lose your legal representative if it is serious enough, and you it might have difficulty finding someone else to help you with your case.

If you don’t tell the truth, not only does it weaken your case, it makes your representative look bad.  Judges don’t remember a party to a litigation, but they sure do remember a lawyer or paralegal.  The reputation of a lawyer or paralegal is very important, especially when you appear before the same Judges or Deputy Judges over and over like we do.

I was recently caught off guard when I met with a client to draft a Defence, and the information they provided was incorrect, I think because they did not want to admit any wrongdoing.  I don’t think that they lied intentionally, but I was sure caught off guard when the plaintiff approached me with facts and evidence that contradicted what our client said, and what we plead in our Defence.

Thankfully, I was able to get it settled and all is well again.

Moral of this blog: always tell the truth to your representative no matter what.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

Employment Law – Check with us first

I always find it funny the cycles that our law firm goes through.  It could be a few weeks, a few months, or even sometimes a year before we deal with a certain type of law.  Whether it be Construction Liens, registering a Certificate of Pending Litigation onto a property, or a will drafting, we always have those periods of time where that’s all it seems to be. 

The one thing that does seem to be consistent is employment issues.  I think that’s because we are the full-service business law firm to our clients. We assist in incorporating, to drafting employment contract, and even employee handbooks. 

We always impress upon our clients to reach out to our offices before they terminate employees.  Even then, you’d be surprised when we got those emails from our clients stating that they terminated an employee without consulting our offices, and then having to respond to a lawyer for failure to provide the right amount of notice, or pay in lieu of notice.

Scenario:

The ask from the client: We terminated an employee without cause, they weren’t performing as we expected, and we have a letter from their lawyer saying we owe them $2,000.00.  What do we do?

Question.  Did they sign the contract that we drafted for you? 

Response 1.  Contract?  Were they supposed to sign the contract? 

Response 2. Yes they did, it was signed a week after they started.

Response 3. Yes, and there was a change made to the amount of notice required to be provided. 

None of these are the responses that we want to hear. 

There are so many different moving parts when it comes to hiring and terminating employees and for that reason, we carefully draft the employment contracts for our clients.   

Employment law is evolving almost on a daily basis, and we strive to keep on top of all the leading cases law.  Before you go ahead and make those changes to the agreements, or before terminating, you would be best served to reach out Inga B. Andriessen before you do anything that could cost you in the future.

Why not start off 2019 right?

Christine Allan, Law Clerk

callan@andriessen.ca

The Good Lawyer (Part 4) – Judgment

Welcome back to our segment of “The Good Lawyer.” One resolution everyone should be making for 2019 is to not settle for less than what you deserve – and since we are a law firm, of course we mean in terms of your legal services!

We’ve already discussed the importance of communication, resourcefulness, and responsiveness in a lawyer but let’s turn our attention this week to… JUDGMENT! When it comes to this trait, as a lawyer, you either got it or you don’t!

You hire a lawyer to advise you when it comes to making some tough calls. These calls can occur on a moment’s notice, so you need to make sure your lawyer is up to the task. Being able to draw reasonable and logical conclusions quickly from (sometimes) limited information, really helps. You can probably see then how decisiveness in a lawyer would be very important – lawyers who sit on the fence are rarely effective counsel. Don’t worry though, here at Andriessen & Associates, we do everything in our power to shove them off that fence.

Good judgment in a lawyer also means being able to accurately advise you when it comes to your likelihood of success. We see opposing counsel show up to court or examinations for discovery ill-prepared all the time. They put on blinders and see only the merits of their own case. A good lawyer uses his or her good judgment to advise you on the best course of action – even if that means settling before trial or not even pursing an action any further. A good lawyer has the good judgment not waste your money on a pointless lawsuit.        

Hmm…new year, new lawyer?

Disclaimer: We, at Andriessen & Associates, have never and will never physically shove any opposing counsel off a fence. We swear.

Robin K. Mann, Associate Lawyer

rmann@andriessen.ca

Balancing the Balance

I love the first couple of weeks after January 1 – it is the time of year you get to see which resolutions are sticking for those who made them.   Many lawyers I know were resolving to have work/life balance for 2019 and finding it hard to keep.

I will not pretend to have mastered work/life balance and will even say anyone who claims they have is a liar.  I do however, have a few suggestions on how to work towards a balance as a lawyer:

1.  Recognize our ethical obligations put our clients first.  This may mean that you have to take on fewer clients in order to achieve balance and it may mean you need to narrow your area of practice so that you are at maximum competency without the need to keep up to date on all areas of law.

2. Use your clerks and assistants.  Many young lawyers want to do all their own typing  and leave their support staff bored and wanting to do work. Lawyers, we are not better at typing, binding and copying than our staff and most Law Clerks are quicker at searching government databases than we are.

3. Create a routine. The only “right” routine is one you will stick to.  I personally now have one where I get up early, work at my home office, workout and then head into the office, discoveries or court.  They key to sticking to my routine?  Having a coffee maker ready to go in my home office.  

4. Recognize you are not always going to be in balance and that is ok.  If you throw in the towel because you didn’t achieve perfection you are undoing all the good steps you took to that high point.  

Cheers to 2019 and continuing to aim for work/life balance!

Inga B. Andriessen JD

iandriessen@andriessen.ca