Our Take on Things

I’m not a criminal lawyer. Our firm does not practice criminal law. However, I recall in Law School we learned about the presumption of innocence in first year Criminal Law. Our Criminal Justice System holds this as a fundamental tenet. This principle matters: if you were charged with a crime, you would want to be presumed innocent.

With the above in mind, I was surprised to read that there is a “start by believing” campaign circulating around police forces in Canada. There was a Globe & Mail article detailing the campaign here: http://www.theglobeandmail.com/news/national/halifax-police-sign-on-to-start-by-believing-sex-assault-campaign/article34610504/.

This says to my legally trained brain that the police are now going to begin a sexual assault investigation with a presumption of guilt of the alleged offender. That’s contrary to our Justice system principles.

I’ve also noticed a big increase in articles about University campuses clamping down on having speakers into campus who hold views that uphold the principles of our Justice system. This is being done in the name of “protecting victims from being triggered.”
This is dangerous. We’re educating a generation of students to ignore our Justice system values and to put their fingers in their ears and cover their eyes when faced with a view contrary to theirs.

This is not healthy for our future and only can lead to nasty divisiveness as the new generation of University graduates will not be equipped to have a calm debate about issues in order to reach a compromise position.

Democracy requires a free and open exchange and debate of ideas in a civilized manner. Let’s get back to that.

Inga B. Andriessen JD

A few weeks back I had the privilege of speaker to a class of law school students about to market yourself as a lawyer. Since the class, I’ve had a few follow up calls with some of the students to discuss more deeply what we do at our firm to meet new clients.

Really, it’s not that complicated, or maybe it is and we’ve been doing it so long, it seems second nature, and I’m happy to share a few tips for lawyers in today’s Blog.

1. Remember, you are your own brand. This starts even before you’re in law school. This applies to non-lawyers. Every opportunity you have to meet a new person is your opportunity to market yourself to them. “Hi, my name is Inga and I’m going to Osgoode Hall Law School in the fall” was a very common refrain for me in the summer leading up to Law School .

2. Create a social media strategy that suits you and follow it. There are many services that will run your social media stream for you. If you find one that tweets out topics that suit your “personality” then go with it. However, you’re likely better off to spend some time thinking about what information you want to share and what “voice” do you want to use. For example, our firm uses LinkedIn, Twitter and a Blog. We consciously don’t do FaceBook as it doesn’t have the reach to the business clients we are introducing ourselves to. If we were a family law firm, we likely would up our FaceBook presence as that would make more sense for that type of law.

3. Don’t stay behind your desk – go out for coffee, go out for lunch, just GO OUT. Seriously, meet people, tell them what you do. This is key: word of mouth is the best source of referrals.

4. Don’t let your Blog die. If you stop posting, take it down. This is key. Nothing is sadder than a dead Blog. Well, many things are, but you get the point.

That’s all the free advice I’m doling out today lawyers and lawyers of the future. If you have more tips for the trade, share them with us !

Inga B. Andriessen JD

Failing to follow through on things you promised to do is an easy way to get sued. This happens in business more than it should and that leads to lawyers being busier than they should be with preventable issues.

For example, if you enter into an agreement of purchase and sale that requires items to take place over time, it’s not o.k. not to complete the transaction: this will get you sued.

Similarly, if you agree that something will happen in the future, for e.g. and employee will get a raise if targets are met, and then you don’t follow through, you will get sued.

If you’re unsure about the cost of completing a transaction, or your ability to pay a raise, then don’t sign the agreement. Instead, press pause, research costs, financing, etc. and then sign knowing you’re capable of honouring the promise.

The Courts will not hesitate to Order you to carryout a promise you made to another party, so the time to spend legal fees assessing the nature of the promise is before you sign a document, not after.

Take your time: you’ll save money in the long run.

Inga B. Andriessen JD

When the Women’s March on Washington took place earlier this year, the best placard I saw was one that said “I can’t believe I still have to protest for these rights.” I feel similarly about the Ontario Civil Justice System. I’ve been a lawyer for 24 years in this province. The delays in getting to trial are no shorter, in some cases they are longer, than they were when I started practice.

The old fashioned paper method of doing things is still the main way Justice is carried out in Ontario. Thankfully, in Small Claims matters, there is now a formal electronic filing system; however, it only goes so far.

Unfortunately, in the Superior Court system (claims of $ 25,001 and up) there is still no electronic filing, no internet usage at all. This, despite the fact that over 15 years ago there was a pilot system in the Province (our firm participated in it) that allowed us to e-file claims and note parties in default. It was not a lot, but it was something and then suddenly it was gone.

Our government needs to commit to modernizing our legal system. It’s cheaper to do this now that it was 15 years ago. We no longer need proprietary software: many other regions have done this – let’s use their software. We don’t need to reinvent the wheel.

Let’s use Skype or other video conferencing software for pre-trials and adjournment requests. Let’s use email to communicate between the Court and the lawyers.

Or hey, how about as a baby step, we permit service of documents by email provided the sender receives an email acknowledging receipt of the document?

There is a lot of press these days about the cost of litigation. Judges regularly admonish counsel about the cost of litigation. Let’s acknowledge it’s not all the lawyers’ fault. The fault lies in the system we’re required to operate in.

Let’s get this fixed.

Inga B. Andriessen JD

Recently we have had some questions from clients about the value and enforceability of documents prepared in anticipation of doing a deal. In one case, the binding nature of a letter of intent was in question, and in another, some clients wanted to know what effect a handwritten list of deal items would have on the sale of a business.

The letter of intent, sometimes called a memorandum of understanding, was created by a professional who contemplated most of the essential elements of the deal. The list of deal items, on the other hand, was the result of a casual brainstorming session between two business people who were trying to negotiate a deal that would make them both happy. The two documents look vastly different and seem worlds apart; but the truth is, they’re not that different.

In the lead-up to a major transaction, letters of intent are often used to clarify the major points of a deal such as purchase price, deliverables, timing and any restrictive covenants that might be required by either side. They’re often used liberally because the parties feel like they’re not binding, or not as binding as the final agreement. The truth is that letters of intent can sometimes be as binding as a formally executed agreement – it will all depend on the wording of the document and how well it evidences the intentions of the parties to be bound. A letter of intent that is clearly exploratory will have a different effect than a clearly binding letter.

The list of deal items is little different. A wish list of clauses, drafted by one side, is going to be treated differently than a list of items that actually evidence points agreed to by both parties – particularly if either party is then obligated to undertake any further actions, such as financial disclosure.

In both cases, pre-papering the negotiation of a deal can be incredibly helpful in making the best deal possible, in lowering legal costs, and in keeping a record of the evolution of the deal. But at the same time it’s important to know that the documents, as well as the conversations about the deal, particularly including any letters or e-mail about the terms, may have a legally binding effect. The best practice is to retain counsel when the deal is contemplated and talk to them about what sorts of documents need to be prepared and when. Setting the terms out on paper will reduce the amount of negotiation on the final agreement and should help reduce unexpected surprises.

As always, we’re here to help with all stages of your deals !

Inga B. Andriessen JD

It’s March Break week in Ontario – the highways are quieter and it’s tougher to get work done because so many people are away.

The Courts are full of people with non-school aged kids, litigating disputes blissfully unaware that many people have overpaid to travel at the busiest time of the year.

So, where does that leave your business? How are you handling it? What do you do when many people want the same week up?

If you’re unable to answer those questions, it’s time to think about it and create policies.

In Ontario, the Employment Standards Act has mandatory minimums for vacation time and pay that you cannot contract out of. After an employee has worked a full year, they are entitled to 2 weeks of vacation time. From the moment they start working, they accrue an entitlement to 4% vacation pay. That amount can be paid when they take their 2 weeks or you can pay as you go. If you pay the 4% each pay cheque, when they take their 2 weeks off, you don’t have to pay the employee because you already pre-paid that vacation pay.

Most employers choose to pay salaried workers the same amount all year, yet provide them with at least 2 weeks of vacation as well. This is certainly simpler and generally, should not be an issue with “the math of vacation pay” but it’s always important to be sure.

In terms of who gets to take time off and when, have a written policy regarding how to apply for vacation dates. Remember, you cannot discriminate on the basis of family, so you cannot say employees with children get first choice. Be fair. Have a policy and rely on it.

Inga B. Andriessen JD

Sometimes the stress of cash flow, business planning and the general day to day grind of people’s jobs can lead to some really bad decisions. Generally the really bad decisions are ones that are made quickly or out of an emotional response, rather than a business response.

The business decisions that people struggle with are often dealing with hiring/firing of employees, refusing to extend more credit to a customer or starting to do business again with a former client or partner that you previously had refused to do business with.

Let me start with the “easy one” from my point of view, which is the last one. If you are dealing with a relationship that ended badly, to the point where you were in litigation, you likely should not restart your business relationship. I stress business relationship as opposed to personal relationship. Personal relationships can continue or re-establish themselves after litigation – but once you’re have to pay a lawyer to deal with a business relationship, do the smart thing and ensure you won’t have to pay the lawyer a second time to deal with the same party.

The refusal to extend more credit to a customer is also an easy issue from my point of view as well. However, I appreciate that many business are concerned that they will lose a customer. To those businesses I often ask point blank: “if someone is not paying you, why would you want them as a customer?” A customer who doesn’t pay on time is losing your business money. Consider the cost of “financing” the receivable, together with the lost employee productivity and ultimately legal fees involved in getting paid what you are owed and the clear business decision is: if a customer fails to meet your terms, do not extend credit and use 30-60-90 Sue, as discussed in earlier blogs.

Finally, there is the often difficult issue of employees, particularly terminating employees. If you have the responsibility of hiring/firing, then be honest with yourself and your business: you know when someone needs to go. It’s amazing how quickly one bad seed can come into a great work environment and poison it completely in a matter of weeks. Do not terminate in anger though, consult a lawyer and be sure you do it properly to avoid further fall out. But remember: the longer you wait to terminate someone who truly needs to leave, the more damage they do.

In keeping with the theory that all we ever need to know in life we learned in kindergarten, I’ll leave you with this thought from my Kindergarten teacher : “think before you act, but don’t wait a long time before acting.”

Inga B. Andriessen, J.D.

In Ontario, in most cases, the loser in a step in a civil law suit pays the legal fees of the winner. It is for this reason, we always advise our clients of this and warn that no outcome before a Judge can be guaranteed.

There is good reason for awarding costs against the loser: it reduces frivolous litigation and ensures that we don’t end up looking like the USA legal system. I am aware of the view point that says this stifles legitimate litigation by scaring people away with the threat of legal fees.

The amount of legal fees awarded is divided into two categories: substantial indemnity and partial indemnity costs. Substantial indemnity costs are 100% of the legal fees and disbursements the winner paid their lawyer. Partial indemnity are approximately 60% of the legal fees and 100% of the disbursement the winner paid their lawyer.

Substantial indemnity costs are generally only awarded in a few situations:
1. if there is a contract that entitles the winner to those costs;
2. if the loser has alleged fraud and is unsuccessful;
3. if the winner had offered to settle for amount less than they were awarded.

A company with a good reason to sue should not be afraid to do so. With good legal advice, the risks can be properly managed and you can litigate with confidence.

Inga B. Andriessen JD

Yesterday in Ontario we celebrated Family Day. Family is such an interesting thing to celebrate as there are those who feel they do not have much to celebrate in that department. Some of those who have that sentiment have no doubt experienced being dragged into business problems by other family members.

A few of the situations we see in our are of law that impact families are as follows:

1. Using the family home to finance a failing business. If your business is hopelessly in debt with no realistic plan to turn it around, why are you compounding that problem by putting your family’s home up as collateral for business loans?

2. Refusing to prepare a Will, then dying. Without a proper Will, ensuring continuing income from a family run business can be a problem. There inevitably is a period of time where the cash will not flow. That is a problem. You will die. Prepare a Will.

3. Having a family member incorporate a new company to carry on the same business as your company, that just had judgment obtained against it. Our firm is particularly familiar with this situation as we find ourselves often suing multi generations of families who have been looped into the debt of the original company at the request of another family member. Much like item 1, why are you bringing your parents, spouse and kids into the debt problem of your company?

Love your family. Don’t drag them into a bad business situation.

Inga B. Andriessen JD

Roses are red,
Violets are blue,
If you’re in a law suit,
Don’t represent you.

Ah, Valentine’s Day. A day to celebrate love and the emotion that comes with it.

While being in touch with your emotions is good for your personal relationships, being emotional is not a good quality when representing yourself or your business in front of a Judge.

In Ontario, businesses do not have the right to represent themselves, they must obtain Leave, which is a fancy way of saying, permission, from the Court. Permission is not automatic. Courts have the right to refuse and will do so, particularly in situations where the representative is being uncooperative with counsel.

Many years ago I successfully argued that the owner of a company could not represent the company in the lawsuit I brought on behalf of my client. The fact that the individual had called me “ignorant and ugly” in writing helped show the Court that they were not able to conduct themselves appropriately in the law suit.

Even if you are confident you’ll be able to avoid calling the opposing counsel names, representing your company in Court is still not a good idea. Ultimately, this is your business and your money that is on the line. You will not be able to evaluate the strength of the other party’s position as you will be convinced yours is correct. You will also not have the benefit of legal research and arguments. You want to avoid that.

Lawyers are usually not free and the cost to hire one to defend a business in a law suit can be overwhelming. However, there are law firms available who will work with businesses on payment terms. It is worth looking into, because ultimately, you don’t want to be the one representing your company in Court.

Inga B. Andriessen JD