Invoice > Handshake

Gone are the days when a handshake was enough to enforce deals between vendors and buyers. Well at least we hope those days are gone. If you’re still doing handshake deals, stop right now! You are a business owner, a potential titan of industry, so in the very least you better be using invoices.   

All businesses, both large and small, should be providing invoices to customers for all goods and services they provide. An invoice is a document that details the business transaction between you and your customer or client. Aside from identifying the parties in the transaction, it details the goods or services to be provided, sets out pricing, delivery dates, and payment terms. This little piece of paper can save you from a lot of headache down the road if a buyer doesn’t want to pay you anymore.

When drafting an invoice, it is important to use simple clear terms to avoid any ambiguity. If you don’t have a go-to contract when dealing with customers, we recommend setting out some terms and conditions directly on the invoices you provide your customers or clients. This includes outlining payment terms, performance dates, invoice disputes, cancellations, and liability – that’s in the very least!   

It’s easy, especially for new business owners, to forget to invoice. But remember, this is your responsibility and your way of getting paid for your work. If you don’t have a contract in place between you and the party you are dealing with, and they are refusing to pay, an invoice can demonstrate to a court of law that you are owed payment. So, invoice up already!

Robin K. Mann, JD

rmann@andriessen.ca

Is it Archaic or Important ?

I was recently interviewed by the Lawyer’s Daily to comment on modernization in the BC Court System.  On the same day that was published, a client bemoaned the fact that the Rules of Civil Procure required original signed affidavits to file with the Ontario Court. 

My initial thought is yes, electronic signatures are a good idea, but then I remembered a recent file I had where the individual litigant on the other side of the file created a fake Court Order. They’ve been convicted and sentenced, which is a good thing, but it made me wonder: if we move to electronic signatures on Court documents, how many more fake Court Orders will there be?

I am 1000% in favour of modernization of the Court system in Ontario.  The more I can electronically file, the better.  However, in our push for modernization, we must ensure that what we’re getting rid of is not an important thing to keep.

An original signature on an affidavit is likely an important thing to keep.  This ensures that affidavits are signed by the person swearing them to be true.  It ensures that the person who claims to have witnessed that signature actually did so.  If we eliminate the original signatures on these documents, are we downplaying the importance of “telling the truth” in these documents?  My concern is we are.

Think to the last time you had to agree to a term and condition on a website.  Did you read it carefully to ensure you agreed with every point?  You likely didn’t.   You scrolled to the bottom, clicked “I accept” and were on your way. 

Treating an affidavit, which is evidence that goes before the Court, the same way we treat iTunes terms and conditions, is likely not helpful in advancing Justice.  Justice is not just about speed.  It’s about “getting it right”.

All of the above, unfortunately is likely a wasted opinion.   I fully expect that for the rest of my legal career, I will be required to have a fax machine in order to satisfy the requirements of our non-modernized Court system.  I hope I’m wrong, but I don’t think I am.

Inga B. Andriessen, JD

Did you hire an Employee or an Independent Contractor?

Some employers misclassify their employees as independent contractors. Now this misclassification can be the result of an innocent mistake, but it can (in the case of some sneaky business owners) be an intentional act meant to deny their employees protections under the Employment Standards Act, 2000 (“the ESA”). What do we say to these business owners? It’s not worth it!

Whether intentional or not, the employer could be issued a notice of contravention or even face prosecution by an employment standards officer. The employer could also face other legal exposure if they continue treating an employee as an independent contractor. So yes, it is important to know the difference between an employee and an independent contractor in your hiring practices.

Unlike independent contractors, employees have rights and protections under the ESA, such as: minimum wage guarantees, overtime pay, public holidays, and vacation pay. Rights under the ESA are guaranteed to employees, whether they sign an employment agreement or not.

Independent contractors on the other hand, as we mentioned, do not benefit from the ESA – this is why some employers will try to pass off employees as contractors. Tsk! Tsk! Don’t do it. Understand the difference and hire accordingly.

So what is the difference?

A worker can be seen as an independent contractor if they:

  1. Own the tools and equipment they use for their work;
  2. Set their own hours and work schedule;
  3. Submit invoices to the employer;
  4. Make a profit;
  5. Have the ability to subcontract out their work; and
  6. Cannot be disciplined by the employer.

This may seem like a neat little test but remember, these are not definitive! A business owner may find that their employee/independent contractor meets some of these items, but not all. 

If you find yourself in this situation, consult a lawyer (*cough* a business lawyer is probably best) to ensure you understand and comply with the employment status of those you hire, and have the proper agreement drawn up.   

Robin K. Mann, JD

Associate Lawyer

rmann@andriesen.ca

Should that Doggy Be in the Window ?

Lately it seems that pets are everywhere.   As both a Business Lawyer and an individual with a severe animal allergy, I notice it more than the average person as if a pet is in a business, I cannot breathe in that business.    I like pets, I just like breathing more.

If you’re considering starting a business, it’s important you know if you’re allowed to have pets in your business.  Notice, I said pets, I didn’t say animals.  Yes, that’s a boring, specific law thing, but it matters.

Certain animals, such as fish, are permitted in businesses.  Other animals, such as dogs are only allowed in certain businesses if they are service animal.  Service animals are not the same as emotional support animals.  Confused yet?  Just wait, it gets worse.

A Service Animal must meet one of two conditions, defined in the Accessibility for Ontarians with Disabilities Act, in order be a service animal:

  1. The animal is easily identifiable as relating to the disability; or
  2. The individual with the animal can provide documentation from a regulated health professional confirming the animal is required due to a disability.

Even if the animal qualifies as a Service Animal, it is prohibited from being in a food preparation area in a business. 

Some of the types of businesses that are specifically prohibited from having animals, other than Service Animals are:   hair salons, spas, barbershops, and tattoo parlours.   All of these businesses are regulated under the Ontario Health Protection and Promotion Act.   If you violate this Act, you could find your business on a published list of violators for two years – not a great way to start a business.

Make sure before welcoming animals into your buinsess, you know what laws you have to comply with, so you avoid the public shaming of the Health Inspection list. If unsure, contact a business lawyer.

Inga B. Andriessen JD

iandriessen@andriessen.ca

Before

Privacy Matters – Do you know where your lawyers store YOUR data?

We all know about the Personal Information Protection and Electronic Documents Act and the Privacy Act, and the importance and maintaining an individual’s privacy.  But do you know the lengths that law firms in Ontario take to ensure we keep your information private?

When a client retains a lawyer, that lawyer is required to obtain a range of information from that individual and to keep photocopies of identification of that client.  This is part of verifying identity.  How as a law firm are we expected to ensure the information is stored in a safe and confidential manner?  I can tell you how – organization.

A law firm must be organized in order to run efficiently, so it was not a hard task to ensure the information collected was being stored safely and efficiently.  An organized file room and filing system makes life easy for us in the firm. 

With technology progressing, more things are being done on-line and through emails.  Thanks to being able to send encrypted files and using “new tech videoconferencing” such as Skype or Facetime,  firms are now able to verify identifies with ease making it more convenient for the client. 

How do you store your files on servers safely and effectively? 

Everyone has heard of the “cloud”, but the cloud that is over our office right now threatening rain does not actually have our information stored it in.   Our files are stored in a manner that we can access securely, even if we are not in the office on our desk computers.  These are drives that are heavily loaded with firewalls that will prevents someone who shouldn’t be there from getting access to your files.  Everyone may not be aware of the fact that law firms in Canada must store their files and information in Canada only.  This is very important. 

Like many professions, law firms do get audited from time to time, and guaranteed they want to see the firms’ privacy policy and how they keep everything confidential and secure.  It’s no longer employees signing a document agreeing to maintain confidentiality, it now goes further. 

So don’t lose any sleep tonight, your information in our firm is kept under lock and key.

Christine Allan, Law Clerk

callan@andriessen.ca

The Importance of Moving Your Case Forward in a Timely Manner

The Limitations Act allows you two years to sue a party for money you’re owed.  That doesn’t mean you should wait until the eve of the second year to commence a lawsuit.

Why?  Well, memories fade, documents get lost, and witnesses disappear.

It is difficult to prove a case if you can’t remember events, lose important documents or a witness dies.

What is even more frustrating are people who commence a lawsuit, then end up doing nothing to move the matter forward for a year or more.  In Small Claims Court, a matter must be set down within thirty days after the Settlement Conference.  It seems like only our firm actually complies with that rule, because many lawyers and paralegals fail to do so.

Having to refamiliarize yourself with a file you thought has long gone only to rear its ugly little head again is incredibly frustrating to both a party to a lawsuit and a legal representative.

In addition to the above, everyone, whether you’re a plaintiff or defendant is entitled to finality and it really is irritating to move a lawsuit forward long after you should have.

So do not be that person that waits until just before the two year anniversary of you being owed money to sue, and more importantly, move your matter forward in a timely fashion so there aren’t any issues which could potentially jeopardize the outcome.

Murray Brown, Licensed Paralegal

mbrown@andriessen.ca

Hurry up and Wait – The Expensive Way We’re Forced to Litigate in Ontario

As I write this Blog, I’m waiting to be called to trial in a Courthouse that is not in Toronto, Ontario.     As with most Court Houses in the Court House runs “sittings” twice yearly when civil and family trials are heard.   The sittings started May 13 and will run until May 31.   The next sittings will be in October.

We will likely be told 4:30 p.m. the day before Trial that we are going to start the next day at 10:00 a.m.   We have no idea when that will happen as it depends on when the cases that get started ahead of us finish.

This means that for three weeks, I am unable to book any other out of office work that could not be moved.   My witnesses are also all stuck for three weeks waiting to heard we’re starting tomorrow. 

As bad as the above sounds, it gets worse.   If the full list doesn’t get reached during a sittings (which happens) then the trial gets put on the next list.  That means as the lawyer, I have to prepare twice for the same trial and the client’s bill increases accordingly.

 The time for “sittings” must end.  Given that all in the Legal Profession are working towards faster results and less expensive litigation, it’s time for things to change.  

Until things change, I’ll be here.  Hurrying up and waiting.

Inga B. Andriessen, JD

       

CEO Hit With Personal $ 100k CASL Fine

The Canadian Radio-television and Telecommunications Commission (CRTC) has been cracking down on parties that aren’t taking Canada’s Anti-Spam Legislation (CASL) seriously. In fact the CRTC recently sent a message to Canadian businesses that CASL isn’t all bark and no bite. One corporate director in particular is feeling the sharp teeth of this legislation, and that’s Brian Conley – President and Chief Executive Officer (CEO) of nCrowd.

For those of you who may not know, CASL is a fairly new anti-spam law that applies to all “commercial electronic messages” sent by organizations. These CEMs usually take the form of emails or text messages that essentially encourage the recipient to participate in a commercial activity. For CASL to apply, there must be a CEM that is sent to an electronic address. To be in compliance with CASL, you need to make sure you have explicit or implied consent to send CEMs to customers, or have a mechanism for customers to unsubscribe. 

So how did this piece of legislation end up taking a bite out of Mr. Conley? Well, following a series of complaints in the summer of 2015, the CRTC conducted an investigation into the business activities of nCrowd Group and Couch Commerce Group. Companies owned by these two groups engaged in promoting products and services of vendors on various websites by selling electronic vouchers for these merchants. It was determined that in some cases up to 4 emails per day per complainant were being sent by these groups.  The customer email distribution list even reached approximately 2 million email addresses at one point, which had largely been acquired from Couch Commerce. 

All things considered, on April 23, 2019, the CRTC found that contrary to paragraphs 6(1)(a) and 6(2)(c) of CASL, nCrowd sent CEMs or permitted its subsidiaries to send CEMs to electronic addresses, without consent and without providing an ability for customers to unsubscribe.

The CRTC didn’t stop there, the Commission found that Mr. Conley, as President and CEO of nCrowd Group, took no action and turned a blind eye to his companies’ CASL infringing activities and was therefore vicariously liable.  

The price for his involvement (or lack there of)? $100,000. That’s right. The CRTC imposed a penalty of $100,000 on Mr. Conley personally for the actions of his companies.

In some ways Mr. Conley got off easy – CASL allows fines of up to $ 10 million dollars against Officers & Directors.

Need help ensuring your company is complying with CASL? We’re here to help!

Robin K. Mann, JD

rmann@andriessen.ca 888888888888

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

callan@andriessen.ca

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

iandriessen@andriessen.ca