Our Take on Things

Lately, we’re seeing a lot of leasing defaults and our clients are hiring us to repossess vehicles and equipment from their customers who have stopped paying.

If you are one of the customers, it feels very personal to you.  This is your business and losing the vehicle or equipment probably will impact your ability to generate more revenue, which is usually the reason you are not paying your lease to begin with.

When you first signed the lease with our client, you intended to pay the lease and you had the money to do it.  Unfortunately, this economy has changed that for a lot of people, and often it isn’t because of anything they personally did.

If you receive an email or letter from our firm (or any firm) asking for equipment back, the person writing the email isn’t attacking you personally, nor are they implying that you are a terrible business person.  They are simply saying, you are not paying the money you agreed to pay to use the equipment, and our client is entitled to have it back and wants it returned.

Writing angry emails attacking the writer’s personality, alleging fraud, criminal behaviour, or calling us names, is not a solution to the problem of not paying your lease and needing to return the equipment.  It also doesn’t look good when we file those emails in materials before the Court.

The best way to handle a request to return equipment is to get legal advice.  Yes, I know you’re thinking, “but lawyers cost money.”  That’s true, but paying a lawyer to give you advice on the process will make sure you don’t make the bad situation worse.

Forcing us to bring Applications before the Court for the return of the equipment just increases the amount of money you end up owing our clients because the leases you signed all contain clauses saying you agree to pay the legal fees if they have to get the equipment back. 

Don’t make a bad situation even worse.  Get legal advice.  Communicate professionally and know, that it’s not personal, it’s business. 

Inga B. Andriessen, JD  Principal Lawyer

While we usually aim for some humour in our blogs, the truth of the matter is that in the world of employment law obligations and compliance are no joke!

The compliance topic of today’s discussion is with respect to the Ontario’s Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”). The AODA definitely keeps employers on their toes with one particular compliance obligation: the Accessibility Compliance Reporting Form.

Every three years, employers in Ontario with 20 or more employees must file an Accessibility Compliance Reporting Form. Did you know that?

These Reporting Forms are essentially a way to ensure that employers are doing their part to make the world a more accessible place for everyone. Under the AODA, it’s not just about checking boxes – it’s about making sure that your business is an inclusive haven.

In terms of content, the Reporting Form is meant to cover several areas: 

1. Employers are required to outline the steps and measures they have taken to identify and remove barriers to accessibility for individuals with disabilities.
2. The Reporting Form also provides an opportunity for employers to outline their plans for achieving and maintaining compliance in the future, including specific goals and milestones that will further enhance accessibility within the organization.
3. Employers must confirm that they have met the specific accessibility standards outlined in the AODA, such as the Customer Service Standard, Integrated Accessibility Standard, and Employment Standard.

Essentially, the AODA is like a road trip and the Reporting Form is your map, guiding you through the twists and turns of accessibility regulations! If you’re caught speeding and not taking the time to file your Reporting Form, you could end up with a few tickets! Yes, we actually mean “compliance fees and other penalties” but indulge us for the sake of the metaphor.

If you have any questions regarding the AODA and your compliance requirements, please reach out to us!    

 Robin K. Mann, Associate Lawyer

Occasionally, clients will only become aware of a matter after they have been noted in default or judgment was obtained against them.  Things happen, and things are missed.

The first thing a Defendant should do is to reach out to the Plaintiff or their Representative to see if they will consent to setting aside the noting in default or judgment.  9.5 times out of 10, a self represented party will not consent, thinking they can get an upper hand on a Defendant.  They’re wrong.  Usually, a representative will be able to convince their client its in their best interests to consent to setting aside the noting in default to save on costs and time.

If a party refuses to consent, a Motion to set aside the Noting in Default must be brought before the Court.

In order to be successful, the Court requires the Defendant to convince the Court that:
1. The Motion was brought immediately upon the Defendant discovering the noting in default or Default Judgment;
2. A reasonable explanation for the Defendant’s failure to deliver a Defence; and
3. Whether the Defendant has an arguable defence on its merits.

The most used reason for failing to deliver a Defence would be that the Defendant was not served with the Plaintiff’s Claim or it did not come to their attention in time to serve and file a Defence.

The Court also looks at the potential prejudice to the Defendant if the Motion is dismissed and that of the Plaintiff. Usually, there is very little, if any prejudice to the Plaintiff.

Motions to Set Aside a Noting in Default or Default Judgment are usually granted unless there are circumstances that would justify keeping the Default Judgment in place, however, the Small Claims Court is designed to give every party the opportunity to have their day in Court, even those parties who don’t comply with the Rules.

Motions are heard in Small Claims Court by Zoom and must be served on the Plaintiff or their representative atleast 7 days from the date of the Motion.  Service by email is valid if the Plaintiff or their representative provided an email address on the Plaintiff’s Claim.  The Plaintiff, or responding party must submit their responding Affidavit, if any, within two days from the date of the Motion.

If the Plaintiff incurred costs to obtain judgment or any enforcement proceedings, depending on how long it took to get bring a Motion, the Court may award costs against the Defendant as a condition of being able to file their Defence.

If a Plaintiff doesn’t act reasonably and fails to consent when they should have, they can be faced with a cost order.

Its best to bring your Motion as soon as you discovered the Noting in Default or Default Judgment, to better your chances of success at your Motion.

Murray Brown, Licensed Paralegal

When it comes to preserving your right to sue on a debt, understanding acknowledgments and what they entail under The Limitation Act, 2002, S.O. 2002, Chapter 24, Schedule B is important.

It is well known that, under The Limitation Act, a two-year basic Limitation period is stipulated under Section 4.

In addition to the basic limitation period, the Act also provides for instances where the two-year clock is effectively re-set, thereby preserving one’s right to commence an action. This is found in Section 13 of the Act, which interprets the types of acknowledgements needed to keep the clock ticking.

One of the more basic acknowledgments is payment towards a debt.  Payment on a debt will restart the two-year time limit to commence an action on the remaining balance, however, it is critical to understand that the payment must occur within the two-year period prescribed by the Act otherwise the action will not survive. In other words, any acknowledgments made outside the limitation period will not revive the time.

Another important point for practitioners to remember is that an offer to settle does not constitute an acknowledgment of debt.

Lastly, please be mindful of the digital age we now find ourselves living in.

Courts are now holding that text messages can constitute an acknowledgment of debt as well as affixing electronic signatures.

If you ever have any questions about the clock, please reach out to our intelligent team.

Zach Sternberg, JD , Associate Lawyer

I don’t know if it’s just me, or if it’s everyone, but do you feel more tired than normal? Summer weather lasted longer and fall weather made a strong appearance.  Is that what is making us feel tired? 

I’ve had to sit back and evaluate why this may be.  More often than not, it’s because I’m feeling overwhelmed.  Other times it’s just that I forgot to eat, haven’t had any water, or just didn’t sleep well. 

When I start feeling overwhelmed, like I did when it came to writing this blog, I needed to take a minute and organize myself.  I was feeling that I had a lot on my plate and I wasn’t’ feeling in control.  I realized that my to do list on my desk was a long, but had items crossed off.  I made a fresh list for today and that alone made me feel more in control. 

I also like things in their place around my desk.  Even if one little thing like a pen is out of place, it starts the process of feeling disorganized.  No word of a lie, as I typed that sentence I had to adjust a few things on my desk that were just a little out of place.

It’s very important to realize when this is happening so you can take control and make those necessary changes to help yourself.  Recognizing why you are starting to get that feeling is important. 

Our firm is a big believer in being comfortable in your workspace, taking breaks when you need them (no questions asked) and the office promotes a healthy work-life balance.  Case and point, recently we enjoyed our annual Summer Fun Day event and lunch. 

I challenge you today to look around your workspace. Do you feel comfortable or stressed?  What changes can you make to your space to make your days more efficient, or a little brighter?   I just took stock of my space and had to make a few little adjustments, but now I’m ready to start this day strong. 

Christine Allan, Senior Law Clerk

 

I recently listened to a podcast where the owner of a multi-million dollar business broke down because they had spent a day with their lawyers the past week and walked away feeling stupid because they didn’t understand what was being discussed.

My takeaway from that: you need to get better lawyers.

A lawyer who cannot explain a complicated legal situation to a client in words the client understands may doing this because:

1. They don’t understand the situation themselves, so they’re reading from a precedent and using words they don’t understand;
2. They are a young lawyer who believes that if they don’t use big words, they are not being a lawyer;
3. They believe that they are the smartest person in the room and don’t care if you understand;
4. They were never mentored to get to know the client and explain complicated legal situations in Plain English that the client would understand.

Honestly, I find the last one confusing, because even when I went to law school in the late 80s, we were taught at Osgoode Hall to write and speak to a Grade 10 level as a starting point, to ensure that everyone understood what we were saying (including Judges). 

In our firm, we pride ourselves on explaining complicated situations to clients using Plain English and we draft our documents as simply as possible and answer all questions so a client knows what they are signing.

If you need an interpreter to understand the advice your lawyer gives you, it’s time to end that relationship: it’s them not you!

Inga B. Andriessen, Senior Lawyer

I recently listened to a podcast where the owner of a multi-million dollar business broke down because they had spent a day with their lawyers the past week and walked away feeling stupid because they didn’t understand what was being discussed.

My takeaway from that: you need to get better lawyers.

A lawyer who cannot explain a complicated legal situation to a client in words the client understands may doing this because:

1. They don’t understand the situation themselves, so they’re reading from a precedent and using words they don’t understand;

• They are a young lawyer who believes that if they don’t use big words, they are not being a lawyer;

• They believe that they are the smartest person in the room and don’t care if you understand;

• They were never mentored to get to know the client and explain complicated legal situations in Plain English that the client will understand.

Honestly, I find the last one confusing, because even when I went to law school in the late 80s, we were taught at Osgoode Hall to write and speak to a Grade 10 level as a starting point, to ensure that everyone understood what we were saying (including Judges). 

In our firm, we pride ourselves on explaining complicated situations to clients using Plain English and we draft our documents as simply as possible and answer all questions so a client knows what they are signing.

If you need an interpreter to understand the advice your lawyer gives you, it’s time to end that relationship: it’s you, not them.

Inga B. Andriessen, Senior Lawyer

Ever tried reading a contract and wished you had a translator to turn legal gibberish into plain English? It turns out there are actual jobs for that! They’re called “lawyers” Okay, maybe not the big reveal we anticipated. 

Business contracts can be dense, complex documents filled with arcane language and confusing terminology that often leaves people figuratively scratching their heads. This unique language is known as “legalese,” and it’s unfortunately the hallmark of many legal documents.

Us lawyers, help decode that foreign language and explain what the contract terms are – you know, so you don’t inadvertently sign your life away.

We are bombarded presented with contracts every day, whether it’s creating a Netflix account or entering an online contest – many of us just click through and accept the terms. The same should not be done when signing contracts pertaining to your business or finances. Well technically, you should never just “click through” but least of all in these cases concerning your livelihood.

Some people don’t realize that when they are presented with a contract from another party that there’s almost always room to negotiate and alter the terms before signing. That’s why you need to let the experts (ahem, us) translate the document for you so you understand exactly what the terms are and whether they are reasonable.    

While some law firms still turn to archaic legal language when drafting agreements, some firms (like ours) are modernizing our approach to contract drafting and significantly reducing unnecessary legalese. Yes, that’s right – we are the unsung heroes in business law, cutting back on the legalese in the world, one contract at a time.    

Robin K. Mann, Associate Lawyer

So, you have a Trial date scheduled.  What now?

At least thirty days prior to the Trial date, all documents the parties plan to rely upon should be served on the opposing party and Court.  Usually, documents that haven’t been served cannot be introduced as evidence, however, some exceptions do apply.

Trials are being heard in person, unless there is a valid reason that the Trial should take place by Zoom.  A Motion needs to be brought and leave of the Court must be obtained for a Trial to take place by Zoom, otherwise, Trial in person it is!

The Deputy Judge, Court Clerk(s), the Plaintiff(s), Defendant(s) and their legal representatives (if any) are the only parties present in the Courtroom at the start of a Trial.  All witnesses (who are not the Plaintiff or Defendant) are required to wait outside the Courtroom and are only called in once it is their turn to testify.  This is to ensure no witnesses hear the testimony of other witnesses.

At the start of the Trial, the parties will give their opening statements which outlines their case, starting with the Plaintiff.

Once opening statements are made, the Plaintiff will start calling their witnesses.  The witness is sworn in, either by Oath or swearing on a Holy book.  They then identify themself for the Court by providing their name and spelling it out for the record. 

Examination in Chief is the term used to describe the questioning of a party’s own witnesses.  Cross Examination is the term used to describe the questioning of a witness by the opposing party.

Once the Plaintiff completes Examination in Chief and the Defendant concludes their cross examination, it is the Defendant’s turn to call their witnesses.

Once testimony has concluded, closing arguments (or submissions) are then made by the parties.

The parties will make their final argument to the Court based upon the testimony and evidence submitted to the Court as to why they should reign supreme!

Depending upon the time the Trial concludes that day and the complexity of the issues, it is at the Deputy Judge’s discretion to allow arguments to be made orally that day or in writing.

If submissions are made in writing, a timeline is provided for both parties to deliver their submissions to the Deputy Judge for consideration.

A Deputy Judge has up to six months to deliver their decision from the date the Trial took place, regardless of if submissions were made orally or in writing.

Once a decision is delivered, the parties will then make cost submissions.  The successful party will make submissions for the maximum costs they can claim, and the unsuccessful party will argue why the successful party isn’t entitled to the costs requested.  The Deputy Judge will then make an Order as to costs.

It should be noted that not all Trials are completed in a day.  If a Trial goes into day two, etc., that date is set to the next available date the Deputy Judge is available and can take several months to be heard.

The Trial process is quite extensive, however, with proper preparation and organization, the Trial should progress smoothly….you hope.

Murray Brown, Licensed Paralegal

Life gets in the way, we get it.  We also understand that there are always emergencies.  However, when it comes to lawsuits, construction liens and incorporations, rarely should these be things that take a back seat.

There are limitations in place when it come to commencing a lawsuit, and there are strict timelines in place for construction lien matters.  These are things that should be addressed well before the limitations are up.  This should be pretty simple, especially if you follow our 30-60-90 sue™ method when dealing with payment from customers.

For construction liens, timelines are strict and following the 30-60-90 sue™ method will not work in your favour.  In a nutshell, you have 60 days from the date of last attendance, completion of the project or termination of the contract to register your lien. 

What do you do when your customer is making promises to pay, but keeps delaying?  Involve your lawyer early on and have them make a demand for payment.  The customer usually then understands that you mean business, and more often than not will result in you getting paid and actually save you money by not having to commence litigation. 

Incorporations are another thing you don’t want to wait until the last minute.  You will need time to consult with your lawyer and accountant, and take into consideration their advice to you.  There are different types of corporations, some of which can be very complicated.  You will need to ensure you are incorporating for the right reasons, and to consider any tax consequences that could be involved with it.     

If there is one thing that you are going to take from reading my blog today, I hope that it to be to just not wait.  At the very least, get your lawyer in the loop as early as possible, it could actually save you money in the future.

Christine Allan, Sr. Law Clerk