The Problem with Scheduling Civil Court Matters in Ontario

Are you reading this on your phone?  While reading this did you get a phone call from someone asking if you can meet next week?  Did you check your calendar on your phone, say yes and then book that into your phone?

Maybe you read this at the office.  While in the office you received an email meeting request with two other people.  You checked your schedule, proposed some dates, everyone agreed, and it was put in a calendar with an email meeting request sent to everyone.

That doesn’t happen in Ontario Courts.  Each Court House in Ontario has its’ own method of booking.  None of them involve sending email meeting requests, some require in person attendances by lawyers.  Most of them involve forms that have to be faxed into the Court Office, only to be frequently lost on the receiving end. 

In the legal community these complaints are raised so frequently it’s boring. 

The media and our own Canadian Bar Association (CBA) is focused on cuts to legal aid as a factor in the lack of access to justice for Canadians.  In the civil system, the archaic scheduling system increases the costs and time exponentially.  Perhaps a bit of media time or CBA ad campaigns could advocate for bringing our Civil  Court system into the modern age technology wise.  This would save money and time and increase the access to justice.

Until this changes, smart Ontario lawyers keep their hammers and chisels handy, just in case one of the Court Offices decide that is the best way to communicate.

Inga B. Andriessen, JD

iandriessen@andriessen.ca

What’s My Jurisdiction Got To Do With It?

Are you doing business with a party outside of Ontario? Are they drafting the Agreement? Have you read it? We mean, have you really read it?

While we could write a book about the number of things you need to look out for before signing a commercial contract, today’s focus will be on two specific, often overlooked, areas: Which law will govern your agreement? And in which jurisdiction will disputes be dealt with?     

These clauses are often mistaken by parties to be “boilerplate” and overlooked as focus tends to fall on the details specific to the business transaction.

“Governing Law” and “Jurisdiction” clauses, as they are often labelled, can be found if you scroll all the way down to the end of the agreement… yes … keep going…. there they are!  

So why are these clauses so important and how are they different, you ask? Well, the “Governing Law” clause tells you which province or country’s set of laws will apply to your contract or any disputes that may arise. The “Jurisdiction” clause, on the other hand, tells you which court will hear your disputes. For example, if the agreement states that the governing law is Ontario, but the jurisdiction is British Columbia (B.C.), that means that the Court in B.C. will apply the laws of Ontario, to the extent they are different from B.C. law, in dealing with your dispute.     

Doesn’t seem like a big deal does it? But think about it this way. What if you operate your business in Ontario, and enter a contract with a party under clauses that state the agreement will be governed by the laws of California? What if all disputes must be heard in California as well, under the agreement’s jurisdictional clause? 

This can present a huge problem for your Ontario-based business if a dispute arises. This means that you would need to hire a lawyer in California or pay a lawyer in Ontario who knows California’s laws and can travel to the States to litigate the matter. Yes, you are correct – that would cost a lot of money! And yes, we are psychic.   

We often get clients that are so excited or anxious to close a deal, they don’t want to overly negotiate the agreements drafted by the other side. When it comes to these clauses, often clients don’t care to haggle over these provisions because the relationship is new and positive, they can’t ever see it going south.

But that’s what we are here for – to expect the unexpected! Okay we may have borrowed that from the realty game show, Big Brother, but it’s true. Have a lawyer review your agreements before signing, they may catch something you think is “boilerplate” or “non-negotiable.”  

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

rmann@andriessen.ca

Back to School, Back to Business

Ah, the day after Labour Day.  It used to mean new teachers & new school supplies, but these days, as a business lawyer, it means our clients are now focussing on their business and finally getting back to the things we recommended they do back in June.

Some of the common things business reach out for in September are:

  1. Collection letters & litigation

I don’t know why people are o.k. with not being paid on time during the summer, but somehow they are.  The calendar changes and suddenly businesses realized their cash flow is not flowing – thankfully, a letter from our firm to debtors is what it takes for most of our clients to get paid.

  • Employment Agreements

The summer season draws to a close and suddenly businesses realize, they need to hire new people and oh yeah, they wanted our firm to draft up an Employment Agreement so they are protected if you need to terminate without cause.    

  • Terms & Conditions

Be it website or invoice terms, often these issues just float through the summer untouched.  Suddenly it’s September and businesses no longer can live without their T&Cs – no worries, we’ve got you covered.

Never worry that you look bad for having procrastinated.  We’re used to it and we’re o.k. with it: we just want to get your business protected & collected, so reach out and let’s get started.

Inga B. Andriessen, JD

Sr. Lawyer

Who Cares What Works for Others: What Works for You?

It’s the last week of August and I’m pretty sure I’m not the only one whose news feed is being hit with news feeds about work/life balance these days.   Everyone is talking work/life balance, but are they living it and what does it mean anyway?

I particularly laughed when one of my LinkedIn Contacts who is constantly sharing work/life balance articles, emailed me at 8:46 p.m. on a Saturday …. Um, hello?  What are you doing?

After I was done laughing, I took a step back and realized, maybe that is just how they are doing the work/life balance this week.  Maybe they took a day off during the week.  Maybe they knew they wouldn’t enjoy a family bbq on Sunday if they didn’t get work stuff out of their head.   Maybe it’s none of my business about how someone else balances their work and life. Scratch that, it’s definitely none of my business. 

I personally don’t care how others are doing the work/life balance (unless it clogs my newsfeed).  For me, it’s all about working very hard, then taking time off in nature to recharge.  After 26.5 years of practice as a lawyer, I know that if I can immerse myself on top of or under water (scuba diving) or take time to do a hike, even for one day on the weekend, I’m good to go, focussed and recharged.  If that works for you, then follow along.  If that doesn’t work for you: figure out what does.

However, never forget, there is a WORK in work/life balance and the more you work, the more interesting that life can be!

Inga B. Andriessen JD

       

Make Sure You Move Your Litigation Forward

I was recently successful in a Motion to dismiss an action for delay.

Our client paid money into Court 17 years ago (yes, 17 years ago) and the Plaintiff failed to do anything about that money our client paid into Court all those years ago.

The Court sent a letter to the parties advising that these funds were being held and that they needed to be dealt with.  Why it took them 17 years to get around to that, we’ll never know.

The Plaintiff brought a Motion to have that money paid to them, as they claim they were owed the money.

We brought our own Motion to dismiss the action for delay and have the money we paid into Court 17 years ago return to our client.  

The Plaintiff claimed that it was our job (we were the defendant) to move the matter forward, and we did not, as a result, caused the delay.  They were wrong.  Obviously, it is the plaintiff’s responsibly to ensure the litigation moves forward, not the defendants. 

If a Small Claims Court matter is not disposed of within two years, the Court should dismiss the action for delay.  Why the Court never dismissed this action is anyone’s guess – but the Deputy Judge agreed with my submissions that the Plaintiff should have moved this matter forward and failed to do so, and as a result, their Motion was dismissed and ours was granted. 

We are getting the money back and the action is dismissed.

Let this be a lesson to all Plaintiffs: if you proceed with legal action and you do not hear from the Court for a few months, follow up with them, because if you do nothing to move your matter forward, your action may be dismissed.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

Keeping up with Technology (not to be confused with KUWTK)

I’m going to discuss two ways of keeping up with technology, one being staying safe and the other being efficient programs.  This may be one of those blogs where you want to just yawn, but if you are client of the firm, we have your files and we just want you to know that we do our best to keep everything safe and secure.

We keep hearing horror stories of emails being hacked and files being held for ransom.  This scares me from both a personal and working point of view.  Why, because the cyber criminals are getting smarter as the anti-viruses are getting stronger.  They just seem to be one step ahead of us.

As a law firm, we do not hold ourselves out as being proficient with computers and programs, however, we strive on ensuring that our emails and stored files are secure.  How do we do that?  By having a good IT department. 

A good IT department is vital to any company to ensure that their systems and networks remain safe and secure.  They ensure we are equipped with the knowledge to know the difference between a legitimate email and a phishing email.

Have you ever received an email from your “boss”, but the email address just didn’t look right, or the tone of it was just a bit off?  I have, and that email was asking me to send a money transfer. 

Thankfully our IT department has made sure that we know what to look for in a phishing email.  IT department was contacted and we have not received an email of that nature since.  That doesn’t mean that we don’t get those kinds of emails, but they are few and far between.

When it comes to programs that could make our life easier, our IT will make us aware of those new and upcoming products that could be useful.  Let me tell you, we have had some lifesaver programs come our way. 

Additionally, our systems are constantly updated to ensure everything is running smoothly.  Another thing that we consider is the capability of working from home and keeping those computers, and mobile devices secure.  Our IT also manages those systems and makes sure those are all up to par as well. 

So just know, we are keeping our emails secure and doing our best to keep your files safe.

How is your IT department?  Do they know your business and know what you need?  Ours does and that is what makes our jobs just a little bit easier.  

Christine Allan, Law Clerk

callan@andriessen.ca

Should you Trust a Henson Trust?

A Henson Trust, also known as an “Absolute Discretionary Trust,” is a useful tool when estate planning for a beneficiary that is living with a disability. This Trust allows testators to plan for the care of their loved ones, while preserving their beneficiary’s rights to continue collecting government benefits, like the Ontario Disability Support Program (“ODSP”).

What sets this Trust apart from others is one key feature: this Trust only provides the beneficiary with a hope, and not an enforceable right, to distribution from the estate. This means that 100% of the power rests with the appointed Trustee. Surprising right? This means that whoever is selected in the Will to be the trustee of a Henson Trust, must be someone the testator really trusts (no pun intended!). Trustees of discretionary trusts, such as this one, have absolute discretion over how the trust is used to assist and care of the beneficiary, so it’s vital that the testator choose wisely.

You may be wondering why this Trust gives absolute power to the Trustee, and why that’s a good thing. It’s simple really – it’s because the total combined amount of a trust, plus the cash surrender value of any life insurance policies, owned by an ODSP entitled beneficiary must not exceed $100,000. These are considered “assets” of the beneficiary and can negatively impact the beneficiaries ODSP entitlements. A true absolute discretionary trust, like a Henson Trust, is not considered an asset for ODSP purposes, since absolute discretion lies with the trustee and not the beneficiary. This means that the monetary value of this type of trust can be over $100,000.

Beware! Payments from this Trust to the beneficiary cannot total more than $10,000 within a 12-month period – anything over this amount and the beneficiary risks deductions from their ODSP benefits.    

Remember that while a Henson Trust can help in safeguarding the ODSP benefits of a beneficiary, because of the absolute discretion provided to the Trustee, the right Trustee must be appointed for the job!

Robin K. Mann, JD, Associate Lawyer

rmann@andriessen.ca

The Importance of Timing in Business

“Timing is everything” is a very common expression and in business, that comes into play more times than you can imagine.

The timing of when to incorporate is one of the first timing issues a business often runs into.  An Accountant may counsel you to wait until you’re earning enough income to make it worthwhile.  A lawyer will likely counsel you to incorporate right away to protect your personal assets from liability

The timing of when an employment contract is an important issue a business runs into once it is underway.  If the employee signs it on or after their first day of work, it doesn’t count.  That is often an expensive timing lesson an employer learns after being sued.

Since the recent changes to the Canadian Trade-Mark Act, the timing of when you apply for a Trade-mark in Canada matters.  It’s no longer first use that wins, it’s first to register.

There are many more examples of when timing matters in business law.  If you’re not sure if there is a timing issue on a step you’re contemplating, you could be in for an expensive lesson. 

The most important timing issue is hiring a business lawyer and calling them before you take a step that you shouldn’t have.

Don’t have a business lawyer?  We’re happy to help!

Inga B. Andriessen, JD

The Frustrations with Personal Service

The Small Claims Court is a fickle creature. The Rules of the Small Claims Court, albeit are similar to those of the Rules of Civil Procedure in Superior Court, but not all the Rules are treated the same.

One of those Rules is personal service.  Personal service must be effected when serving a Plaintiff’s Claim, Notice of Examination and Notice of Contempt Hearing. 

Alternates to personal service are available for the service of the Plaintiff’s Claim or Notice of Examination.  An adult of the household can be served, and a copy mailed to the debtor.

If an alternate to personal service cannot be carried out, obtaining an Order for Substitutional Service of the Plaintiff’s Claim or Notice of Examination is easy – make several attempts at personal service, bring a Motion stating that you believe that if the Plaintiff’s Claim or Notice of Examination is mailed to the debtors residence, it will come to their attention and most likely you got your Order.

Not at all possible for a Notice of Contempt Hearing.

A Notice of Contempt Hearing is issued when a debtor fails to attend the Notice of Examination.  Failure to attend the Contempt Hearing, can result in jail time for a debtor, so the Small Claims Court stresses the importance of personal service.

But what can you do if the debtor evades service and you cannot serve them personally?  What if family members assist with the evasion of service of their relative?

The short answer is nothing.  I recently unsuccessfully made the case for an alternate to personal service of a Notice of Contempt Hearing, after our process server attempted up to 15 (yes, 15) times to serve a debtor whose mother and father both assisted in their child evading service.

Although the Deputy Judge was very sympathetic, they advised that no Small Claims Court Judge would allow substitutional service because of the potential for incarceration. 

It is incredibly frustrating when a client incurs the cost of a process server, spending hundreds of dollars if not more to try to serve someone when they evade service, and not a thing will be done by the Court. 

Alas, we continue our attempts to serve the debtor personally in hopes we will be successful.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

We are a Positive Space: what does that mean?

While I was on vacation, I saw a tweet from our firm posting a picture with the Positive Space sign.  You may have seen it and thought to yourself “What is that?”  When it was discussed in the firm about putting up the sign, I didn’t know what it actually meant, and to what extent it would help the building. 

By saying that our firm is a Positive Space means that we are committed to creating a safe and welcoming space that is inclusive and free from discrimination based on sexual orientation, gender identify and gender expression.  It’s a sign that we, in our office, are supportive of the 2SWe aLGBTTIQQ community.

People can come and ask us for help if they felt uncomfortable.  We would support them in what they needed to the best that we could, whether it would be to make a phone call for them, or as we are in building that does not have gender neutral washroom, accompany them to the washroom.    

Why is this so important?  Our firm deals with employment issues on a regular basis and we believe it’s important to practice what we preach.  While we are business law firm and represent employers, we are aware of employees complaints and because of that, we do our best to ensure that the employers we represent do not violate anyone’s Human Rights.  If we are to make sure that the employers are doing their best, then we need to do our best.

In writing this blog I had to do some research on the Positive Space movement and found out it has been around for about 20 years.  As I’m just hearing about this now, I thought it would be a good topic to write on as chances are, you are just hearing about this too.

Christine Allan, Law Clerk

callan@andriessen.ca