Ever receive a text from someone and shoot back a thumbs-up emoji? What did you mean when you did that? Did you mean you received the text? Did you mean you agree with the text? Did you mean you accepted the terms of a contract you later breached and then were liable for an $ 82,000.00 judgment?
Did that last one freak you out a bit?
A Saskatchewan defendant is now the unhappy debtor to someone a Judge found they contracted with by sending the thumbs-up emoji in response to the text “please confirm flax contract” and a picture of the contract.
The parties did have a history of texting each other about contracts, and the defendant would say “yup” to bind himself to the contract but this was the first use of an emoji and the person who used the emoji said it was simply to indicate he had received the contract.
Will this case survive appeal? We will see.
In the meantime, it is a reminder that emojis can be interpreted using other evidence and that interpretation may not be what you meant it to be.
We always advise clients to email when it comes to business matters and to be clear on what they are saying. Doing this forces you to pause and think, rather than the quick instinctive emoji content text messages often have.
The takeaway? Think before you emoji or you may have a 💩😮that will cost you🤑.
The thought of hiring someone for your business can be both exciting and stressful at the same time. Exciting in terms of seeing your business grow and employees grow with it, and stressful in terms of having to ensure you have your ducks in a row for hiring new employees.
The first step is of course placing the ad in the right place. Some employers have specific platforms for recruitment so knowing where to post to get the best response is knowledge in your back pocket.
Applying for jobs stressful for employees, but it can also get overwhelming for the employer. One thing that will ensure you get the best out of your posting is by using a Recruiter. While you know what it is you are looking for, a Recruiter can help you draft your job posting in a way that will attract the most attention. A Recruiter can also help with a list of questions that would be appropriate for first and second rounds interviews, and to help weed through the hundreds of Applications.
Another key tool is ensuring all of your on-boarding documents are in one place. This will not only ensure that you have everything at your fingertips when you need it, it also helps when updating policies and procedures, you don’t have to go digging around for it.
We have seen great people at our firm move on to law school, or to their dream job. While I am sad to see them go, I also get excited for their next step in their lives. We do everything we can to ensure the transition for the new employee is as smooth as possible and following all of the above certainly takes a lot off our plates.
With that, we say goodbye to Meriam. It has been a great pleasure working with you and I can’t wait to see where this next step takes you. With that goodbye, we say hello to Charissa – welcome to the firm and I’m excited to start working with you!
Do you have a family cottage – maybe one that’s been in the family for many years?
Did you know that your cottage is not safe from capital gains? Yes, there really aren’t many assets left that we own that don’t attract some form of tax.
Capital gains in this type of situation are straightforward. If you sell your cottage for more than its purchase price you will be taxed on the difference. In Ontario, that tax is approximately 25% of the difference in purchase price and the eventual sale value.
With the housing boom in recent years, most properties have seen a significant increase in value. What does that mean? Well, the capital gain you pay on that picturesque little cottage you purchased back in 2006 is going to be a tidy sum.
Whether you sell your cottage or gift it to your kids, capital gains can be largely unavoidable.
However, there are ways to plan when it comes to dealing with capital gains on your cottage.
First, you can consider setting up a fund and saving for the capital gain payment in advance – years before you end up selling or otherwise disposing of the property.
You can consider setting up a living trust for the cottage. While this approach gives you greater long-term control over your cottage, you’ll likely still be taxed for capital gains to the date of the transfer.
Purchasing life insurance is another option to addressing capital gains of this nature. Couples can consider buying a joint and last-to-die life insurance policy. This type of policy, which costs less than an individual policy, is paid out when the surviving spouse dies. If the couple initially holds the property jointly with a right of survivorship, the property passes solely to the surviving spouse when the first spouse passes away. Eventually the cottage can be passed on to the surviving spouse’s beneficiaries under their will. At the death of the second spouse the insurance benefit is paid to their beneficiary or their estate which can be used to cover the tax bill.
If you are nearing retirement and your cottage has appreciated in value more than your current home, you can consider designating your cottage as your primary residence and selling your home. The Canada Revenue Agency will allow this “principal residence exemption” only if you report the sale and designation of the principal residence in the capital gains section of your tax return.
The above are just a few options you can consider. Whichever option you choose, each has its advantages and drawbacks. Be sure to consult with a lawyer to determine which option is best for you. In the meantime, enjoy some time away at that capital gains magnet of yours – er, we mean your cottage.
Before the 2017 amendments to the Construction Lien Act, now known as the Construction Act (the “Act”), the expressly prohibited certain types of actions from being joined with a Construction Lien action. Subsection 50(2) of the old legislation expressly provided that “A trust claim shall not be joined with a lien claim but may be brought in any court of competent jurisdiction”, so there wasn’t much ambiguity.
However, with the new amendment post-2017, a lot of construction lawyers noticed that this particular provision was noticeably absent, leading some to speculate whether the door to joining breach of trust claims together with construction lien actions was now open.
Well, the recent appeal case of Devlan Construction Ltd. v. SRK Woodworking Inc. (“SRK Woodworking”) at the Ontario Superior Court of Justice slammed that door shut before it could ever really be opened.
In deciding SRK Woodworking, Justice Corbett acknowledged that the Act “neither permits nor prohibits joinder of claims in a construction lien proceeding.” However, moving on to the Act’s Regulations, Justice Corbett noted that the Regulations did provide that a Plaintiff could join a lien claim and a claim for breach of a contract or subcontract.
Considering the Regulation specifically provided for this type of joinder under the Act, but not the joining of a breach of trust claim with a construction lien action, the Honourable Justice concluded that by omission the joinder of a breach of trust claim with a construction lien action was not permitted under the new act either.
This decision makes sense considering the rather complex nature of trust claims and that construction lien actions are as far as possible supposed to be a summary procedure. While a separate claim for breach of trust and construction liens may result in parties spending more time and money, the considerations towards expediting the resolution of construction lien claims so that construction projects aren’t stalled or bogged down for long periods of time to intensive litigation appear to have won out.
Artificial Intelligence (AI) has been a hot topic of conversation lately. AI has rapidly infiltrated many industries, and as an aspiring lawyer, I have been thinking about the implications of AI in the legal field. While AI undeniably has many benefits, such as efficiency and accuracy, it also raises several ethical concerns.
AI has the potential to enhance efficiency and provide valuable insights for legal professionals. However, one primary concern with AI in the legal field is the lack of human judgment. While AI algorithms can analyze vast amounts of data to predict outcomes and provide recommendations, this eliminates the role of human judgment, which can be crucial to complex legal matters. Running on algorithms, there is also very little explanation as to how they arrive at certain conclusions based on given data.
Working in the legal field often involves handling large amounts of sensitive and confidential information, and client confidentiality and privacy need to always be preserved. As AI runs on algorithms, there will need to be safeguards in place with respect to protecting the sensitive information which is used and stored as AI adapts to various data to produce its outcomes. This means that AI will need to be regulated with strict data protection protocols and security measures.
While AI can help improve legal processes, there should be a high level of human oversight and accountability in place, where responsibility ultimately rests on legal professionals to review and validate outcomes generated by AI systems. There shouldn’t be a heavy reliance on technology, rather, it should be utilized as a tool to aid productivity and efficiency.
As legal professionals, we should reflect on the impact and risk of using AI tools to ensure that they align with ethical standards. With the use of AI being so new, there are hardly any guidelines in place for its use in the legal field. There should be a balance between utilizing AI and upholding ethical standards.
In Ontario, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered is the basic limitation period in Ontario and most jurisdictions.
Recently, a client was sued and the claim was issued one day before the second anniversary of the day in which the Plaintiff’s claim was discovered. Why they waited as long as they did isn’t the point of this blog.
After delivering our Defence, we issued a Defendant’s Claim against a third party who we believe is responsible for the Plaintiff’s damages. Our Defendant’s Claim against the third party is for “contribution and indemnity” of the Plaintiff’s Claim.
Contribution and indemnity are concepts that are utilized to identify which Defendant, or any third party brought into the Action are liable to the Plaintiff for their loss.
Contribution refers to distributing a Plaintiff’s loss between parties requiring them to pay their proportionate share of those damages. Indemnity allows the Defendant who was sued to be entitled to recover the amount they may owe to the Plaintiff from the third parties or other Defendants.
Upon the Defendant in the Defendant’s Claim being served, we received an email from their representative demanding that we withdraw the Defendant’s Claim, claiming it was statute barred, meaning, the “cause of action” being the Plaintiff’s damages happened over two years ago, and we were out of time pursuant to the Limitations Act.
Section 18 of the Limitations Act deals with claims for contribution and indemnity and it clearly states that the limitation period on a claim for contribution and indemnity commences on the date the party claiming contribution and indemnity was served with the Plaintiff’s Claim.
Obviously, a party isn’t going to know they must sue someone until they are sued themselves. The original limitation period does not apply.
Always remember that you have two years from the date you knew you should sue to do so. That includes suing someone after you’ve already been sued.
For years the standard advice of many business lawyers to clients about to incorporate has been to ensure they don’t own real property in their names. For many, this has meant transferring their interest in the home to their spouse.
Recently, an alarm has gone off as the Ontario Courts have permitted an argument to be made (it hasn’t succeeded yet) that following that advice may result in it having no effect as the intention was to protect the property from creditors of the individual.
To be clear, this only becomes an issue if the individual has done something which attracts personal liability, such as failing to pay taxes, breach of trust, and other specific actions.
This is of concern, however, because to date, the transactions have only been set aside when there was a claim that reasonably was known against the individual, not a situation of no claim, but simply prudent planning.
We have yet to see how this all plays out. If it results in the transfer of the family home to the spouse being set aside, there are going to be a lot of lawyers changing advice that has been given out for a very long time.
In the interim, if you’re considering purchasing your first home and you own a business, reach out to a lawyer to discuss your personal situation and how the decision of the Court, if it sets aside the transfer, could impact you.
Much like the changes to the Ontario Business Registry that took place on October 19, 2021, the Ontario Not-For-Profit Corporations Act, 2010 (“ONCA”) was proclaimed that same day.
What does this mean? If you are a not-for-profit or charity incorporated in Ontario under the Ontario Corporations Act (“OCA”), the ONCA now applies to your corporation.
Some key differences between the OCA and the ONCA are as follows:
Letters Patent are now Articles of Incorporation and can be filed on-line
Membership structures must be outlined in the Articles, and provides for more enhanced member rights
Allows a range in board size
Proxies and electronic voting is now permitted
The ONCA automatically applied to non-share capital corporations. For those corporations that have share capital, they are required to transition by October 19, 2024.
To transition, Amendments to Letter Patents and Supplementary Letters Patent are done by filing Articles of Amendment, which can now be done on-line. This will set out the range of directors, allowing for multiple classes of members and their voting rights and dissolution clauses, among other things. After the Articles of Amendment are filed, then the corporation will be required to file Restated Articles of Incorporation.
If, however, the corporation does not have to update to provide for a range of directors, or separate classes of members, and there are no fundamental changes or updates required, then the corporation can simply file Restated Articles of Incorporation.
Another part of the transition will be to review and update the corporation’s By-Laws, which will address the changes made to members, directors etc.
As you can see, lots of changes are happening. If you are a not-for-profit and have not yet updated to be compliant, don’t wait. Speak with your lawyer asap to get these changes started.
Although legislatively mandated, paying overtime to employees is rarely enjoyable for employers.
Overtime pay is triggered when employees entitled to overtime pay under the Ontario Employment Standard Act, 2000 (the “Act”)work over 44 hours in one work week. Often referred to as “time and a half,” overtime pay is calculated as 1 ½ times the employee’s regular rate of pay.
Before rushing off to indiscriminately pay your employees overtime, it’s important to remember that not all employees are entitled to overtime pay even when they work over 44 hours. For example, lawyers, accountants, and IT professionals are not entitled to overtime pay (that’s right, I don’t earn any overtime pay for writing this blog – so, you’re welcome). Mangers and supervisors are also not entitled to overtime pay if the majority of their tasks are supervisory in nature. Lines can get blurred for managerial roles, so it’s helpful to get a legal opinion to determine if there is any overtime entitlement.
Interestingly, under the Act, employers can come to an arrangement with employees to offer additional days off in lieu of overtime pay. However, the employer and employee must agree electronically or in writing to this arrangement of “banking hours”.
If your employee has agreed to bank overtime hours, they must be given 1½ hours of paid time off work (at their applicable regular rate) for each hour of overtime they work. Their paid time off must be taken within three months of the week in which the overtime is earned. If the employee agrees electronically or in writing, these three months can be extended to 12 months.
Overtime pay can be tricky. Be sure that you are only paying it when required and consider alternatives like banking hours to ease the financial burden overtime pay can create.
When Parliament introduced Bill 142, the Construction Lien Act Amendment Act, 2017, it introduced two new legal regimes, prompt payment rules, and mandatory adjudication to deal with contractor payment disputes.
The new adjudication regime was designed to give parties to a construction contract a quick dispute resolution mechanism to ensure that cash continues to flow down the chain so that work on the construction project continues.
You can’t appeal an adjudicator’s decision as of right. Section 13(18) Construction Act requires parties to apply to the Divisional Court for leave to judicially review the adjudicator’s decision, and the grounds for a successful judicial review of an adjudicator’s decision are very narrow.
The fact that the adjudicator’s decision is binding in the interim can lead to some interesting problems when you consider that a claimant who commences an adjudication can still commence lien proceedings, even before any decision has been made by the adjudicator.
For example, a claimant who loses an adjudication can still lien the property anyways, effectively bringing the project back to square one. In the reverse, a claimant who wins at adjudication, but then loses in court will probably have spent most of the funds paid on the decision of the adjudication.
Given that the prompt payment and adjudication regime in Ontario is still in its settling-in period under the new Construction Act, it will be interesting to see how courts address the various competing issues and concerns of owners and contractors alike going forwards.