Small Claims Court – is it broken ?

Our firm’s fantastic Paralegal, Murray Brown, is various Ontario Small Claims Courts each and every week. When we discuss many of his files, I can’t help wonder: is this system broken?

Small Claims Court is mandatory for claims $ 25,000.00 and under. Most of the Judges are “Deputy Judges” which means they are practicing lawyers sitting as Judges of the Small Claims Court. Often these lawyers are family law and criminal lawyers, neither of which are areas of law the Small Claims Court addresses.

The challenge with having the Small Claims Court staffed with Deputy Judges is that, in addition to sitting in Small Claims Court twice per month (at least) they have their own matters to handle as lawyers. This becomes a problem when trials go more than one day, which is generally always the case. Why is that? It’s that way because the list is stacked with so many matters, that there is no way for the Deputy Judge to get through a trial on one day. This means the trial continues many months later: this is not a good thing.

Back when I started practicing law, the Small Claims Courts has dedicated Judges. This eliminated the scheduling issues we’re currently dealing with and that is very important for people using the system. Justice delayed is often justice denied.

Like many aspects of our Civil Litigation system in Ontario the system is broken because it is not properly funded. We need to fix our system.

Inga B. Andriessen JD

Even if you don't want to, sometimes you have to

As Business Lawyers our firm often has to tell clients there are certain things they have to do, even if they don’t want to.

The most frequent conversations of this nature are:

1. You cannot contract out of the Employment Standards Act

Yes, that means everyone. Yes, that means that if you’re terminating an employee without cause, you have to provide notice (or payment in lieu of notice) and in some cases severance. This also means that you must abide by the law regarding overtime, breaks and leaves.

Some clients will follow up the “do I have to” question with the “what happens if I don’t” question. The answer depends on the forum in which the employer finds themselves in the event of breach. For example, if the employer is sued, a Court may award punitive damages, which are literally an award of money to the former employee to punish the bad behavior of the employer, for breaching the Act.

The Ministry of Labour is more likely to simply require the money that was to be paid, if the Act had been followed, be paid.

2. You cannot Contract out of the Construction Lien Act

Once again, yes, that means everyone.

The Construction Lien Act has a provision built into it that the Court can insert into the Construction dispute the provisions of the Construction Lien Act to ensure compliance.

The most common example of this is the failure to comply with the holdback requirements of the Act, often because the owner of the property is unfamiliar with their obligations. In over 23 years of litigation, this is probably the area of law we most encounter individuals who should be using lawyers to draft contracts, but don’t. This is usually because the owners are on a budget for a repair or construction and don’t understand the value of learning about their rights and responsibilities until it’s too late.

I always say “it’s cheaper to pay for legal advice before a law suit, than to respond to a law suit” and this is particularly true in construction litigation.

3. You can contract out of the Interest Act but you won’t like the end result

If you express interest in a contract as 2% per month, the Court will not enforce that interest rate in a Court Order. You will receive the Courts of Justice Act rate which is currently 0.5%.

However, if you express the interest rate as 2% per month (24% per annum) the rate is now enforceable. Why? Because the Canadian Interest Act requires interest be expressed as an annual amount.

This is an easily corrected issue and one that we are frequently bringing to the attention of our clients.

There of course numerous other pieces of legislation that must be complied with: this is why you need to consult a lawyer before taking on a new Business venture. You will save yourself a lot of unpleasant surprises if you are educated before being sued.

Inga B. Andriessen JD

Talking before suing

I came across a Blog recently that talked about an American law regarding Poisoned Workplaces and how “not everything your boss asks you to do is poisonous.” The article suggested employees should contact their boss before a lawyer when alleging a poisoned work environment.

In all business law issues that immediately spring to mind, talking to the other side before contacting a lawyer is excellent advice. Yes, I said that.

If you can resolve a dispute with an employee, supplier or customer without using our firm, you definitely should: it is less expensive and generally leaves everyone with a better feeling about their relationship.

Even if you can’t resolve the issue on your own, talking shouldn’t end there. Our firm is often able to resolve issues by negotiating with opposing counsel before law suits are issued.

Once law suits are issued, certain claims have mandatory mediation – which is essentially, Court imposed “talking to the other side”.

All law suits have pre-trials and once again, this is Court imposed “talking to the other side”, but this time with a Judge guiding the conversation.

As 90% of all law suits end in a settlement before trial, clearly, much good does come from talking, it just requires a lawyer who can convince the other side to listen.

Talking. To take a line from Martha Stewart “it’s a good thing ” … particularly if it saves legal fees and speeds up a resolution.

Inga B. Andriessen JD

Collection Litigation and the Bankrupt Debtor

We do a lot of collection litigation and we’re good at it. (Hey, if we were humble, we would not be lawyers.) This past week, however, has driven home the frustration of bankruptcy in the collection process.

We are always up front with our clients when they bring us a collection matter: we cannot control whether a debtor goes bankrupt or not and if they do, our client then goes into the rules of distribution of assets according to the Bankruptcy Act, not according to the enforcement of a Judgment.

Some debtors will go bankrupt when they receive a demand letter: generally those debtors are already so in over their heads financially, the demand is the final nudge they need to see a Trustee in Bankruptcy.

Other debtors are more frustrating, such as one this past week who literally went Bankrupt on the eve of Trial. I hate that for our client, who incurred legal fees getting ready for a Trial that will never take place. I hate that for the waste of Court resources and of course, for the case called after us, who likely thought they had longer to prepare.

Another debtor this week declared bankruptcy about 9 months after we obtained Judgment against him. This appears to have more to do with his not paying taxes than avoiding paying our client, but it is still frustrating for the client.

Ultimately, the best way to avoid situations like the ones described above is to have a good credit application that allows for periodic credit checks and of course, to do those checks. Another way to avoid the situation is to move as soon as there is a lack of payment: a debtor will try to deal with an individual creditor, however, if you’re “just another one” you’re not likely to get paid quickly, if at all.

If you’re running into a collection problem, give us a shout. We’re here to help!

Inga B. Andriessen JD

How it Feels to Come Full Circle in my Law Career

Like many law students in Ontario, I completed my Articles of law in private practice. In fact, I completed my Articles with Andriessen & Associates over ten years ago, the time when Gwen Stefani dropped her debut solo album and I spent many car rides home singing along to Hollaback Girl!

What I loved about my Articles in private practice was the variety of work and the clients I met. No two days were ever the same and I walked in every day prepared for the unexpected.

After I completed my Articles, I was given a wonderful opportunity to work as Legal Counsel for Intact Financial Corporation. My days of working on a variety of matters with multiple clients in private practice suddenly became focused to areas of law relevant to Intact, who was my only client.

Acting as in-house counsel gave me invaluable insight into the operations of a company and how to construct legal advice in a business manner. This approach has served me well in my other in-house roles with Universal Music Canada and American Express, and I’m thrilled to be able to bring this back with me to Andriessen & Associates. After all, we are business lawyers and we are here to serve and help you meet your business needs.

As I come back to the Firm after a decade of in-house roles, there is a sweetness I enjoy having come full circle. I have enjoyed meeting our clients that I have had the opportunity to work with since my return earlier this year. And for those of you that I have not yet had the opportunity to meet, I look forward to meeting you and working with you to bring you solutions that add value to you and your business.

Michelle Eames LLB, LLM

Kids will learn what they see in the Justice System, not just what they're told

This week is a busy week for me. I’m the Chair of the Ontario Justice Education Network (OJEN) – Halton Committee and it is Mock Trial Championship time.

On Wednesday, the top 8 Halton High School teams will compete for the championship. On Friday, teams from Halton, Peel and Guelph will compete for the Central West title.

I love working with the students – they are enthusiastic, passionate and the world is their oyster. They do not feel held back by their gender, country of birth, religion or sexual orientation. They feel they can do anything and they can.

This is in stark contrast to much of the media coverage in the GTA lately which has been pitting the issue of race against the Justice System.

The wonderful lawyers who are volunteering their time to Mentor and serve as Judges for the Mock Trial Tournaments reflect the diverse makeup of our Justice System. We’re not all crusty old white men, which appears to be the common thread in the media these days. We are, in fact made up of young and old, male and female, born in Canada and not born in Canada, from a variety of religions and from none and not just white. We are the Justice System in the GTA and the students competing in our Mock Trials this week will see themselves in that system and may choose careers in that system.

Good luck to all the schools competing this week!

Inga B. Andriessen JD

Everyday is Admin Professionals day here !

This week has been set aside by the greeting card companies to celebrate Admin Professionals day. We will be joining in, however, in our firm we appreciate our Admin Professionals every day.

Since starting this firm over 23 years ago, I have always been of the belief that we all work together, in different, but equally important roles in our firm. As the lawyer my role is specialized and I’ve gone to school longer than others in the firm, however, without our Law Clerk or Legal Assistant, our clients would not get the excellent service we want them to have.

By recognizing that people work “with” me and not “for” me, I believe I have set the tone in our firm that we value everyone’s work. I encourage everyone who has fantastic Admin support to recognize those people, not just this week, but everyday for their contribution to making your business productive.

So: thanks Sarah & Christine – you guys ROCK !!!

Inga B. Andriessen JD

Lawyer/Client Confidentiality and The Panama Papers

If you’re reading this Blog and not sure what “The Panama Papers” are, please do a quick Google Search and then return to this Blog. I’ll wait.

O.K. Everyone on the same page then? Good.

I’m bothered by The Panama Papers, for reasons other than the outrage people have about the Tax Avoidance (which is legal) that has been brought to light. I’m bothered by the fact that these are files that were presumably stolen from the Panamanian law firm. Why does mainstream media think it is o.k. to publish stolen documents?

While some people seem absolutely fine with this because it is “fat cats” who are the targets of these leaks, I wonder how good those same people would feel if the details of their discussions with their divorce lawyers were splashed all over the world’s papers?

Lawyer/client confidentiality is a very important part of the lawyer/client relationship. It allows the client to be completely honest with their lawyer so that the correct legal advice can be provided. When clients start to tell their lawyers only part of the story, the lawyer cannot do the job they are being retained to do.

In this digital age, clients need to ask their lawyers: how are you protecting my confidentiality? Who has access to my physical files? Who has access to my electronic files?

Our firm has always ensured our backups are backed up to computers physically located in Canada. This avoids the scrutiny of the USA Patriot’s Act, which otherwise can go through your lawyer’s data which is stored in the USA. Does your lawyer use DropBox for your files? That is based in the USA? Does your lawyer use a Cloud Based Accounting System? That is probably based in the USA.

It’s time for lawyers to understand their technology so they can protect their clients’ confidentiality and it’s time for clients to ask questions about how their data is stored.

Lawyer/client confidentiality matters, particularly in the digital age.

Inga B. Andriessen JD

Another day, another reason Milton needs a new Courthouse

Our law firm is frequently in the Milton, Ontario Court House. Milton needs a new Court House.

There is one elevator in the Court House that goes to the third floor. It is out of service more often than it works. This prevents people with mobility issues from easily getting to the Court Rooms on the third floor. This is wrong.

There are no private rooms for lawyers to meet with their clients. This means lawyers often have to have confidential meetings, in the open, within earshot of other people. This is wrong.

There are not enough cells to accommodate the prisoners in the cells. This is wrong.

Why is the Ministry of Attorney General letting this continue? Is it because the Halton Region is perceived as wealthy?
Is it because the Halton Region is not protesting?

Do we need to wait until there is an incident in the Milton Court House that raises public awareness of the state of the facility?

Why Mdm Attorney General?

Inga B. Andriessen JD

Trial by Twitter is not Due Process

Last week, the Ontario Human Rights Commission (ONHRC) conducted a trial by twitter. A restaurant had allegedly posted, on twitter, an ad for a female restaurant worker. To be clear: one is not allowed to do that in Ontario and job ads must be gender neutral.

The ONHRC in its’ twitter feed named the restaurant in a tweet stating that the ad was not allowed. When I saw this tweet, I took issue with the lack of due process and tweeted about it both to the ONHRC and the Commissioner of the ONHRC. The Commissioner’s response to me was that their job is to educate and the post was not “shocking” as I had described it.

I attempted to make my point back, but 140 characters is not a lot for anyone, let alone a lawyer, to express a cohesive thought, so this week’s Blog is my position on the ONHRC’s Tweet and why I take issue with it.

Anyone can set up a twitter account. There is no mandatory verification process to ensure that a twitter account on behalf of a business is actually run by the business. A competitor could set up a twitter account or a disgruntled employee could set up an account.

As such, when the ONHRC decided to “out” the restaurant on twitter, what it did was give bad press to a restaurant without confirming that the actual restaurant had violated the Ontario Human Rights Code. This likely didn’t have a massive impact on the restaurant’s business, but that is irrelevant: it could have.

This is why we have an actual human right’s complaint process before the Ontario Human Rights Tribunal: spoiler alert, it doesn’t involve trial by Twitter.

While the Role of the ONHRC includes educating the public about Human Rights, it does not include presuming that a tweet is from the organization it claims to be from and then attacking that organization on twitter.

Inga B. Andriessen JD