Our Take on Things

It’s still summer, we’ve almost got one quarter left in this calendar year – are you prepared?

When thinking about preparation within the context of a business, it’s not just about legal obligations, however, may tasks include legal obligations.

If you’re going to downsize your workforce because of the recession, you have legal obligations in terms of notice or money in lieu of notice that you must pay those who are downsized,

If you’re going to sue a customer for lack of payment, you need to be sure the interest rate you want to charge is on your invoice, as an annual amount. If you don’t do this, you’ll get the very low Courts of Justice Act rate and you do not want that.

If you’re going to spend money on your branding, then spend the money ($ 2000.00 flat fee + disbursement and taxes) to Trademark your brand. If you don’t, you’re going to spend a lot more than that trying to protect it.

If you’re going to die (we all are) then you need a Will and if you have a Corporation, you probably need a corporate will as well.

All in all, if you’re going to move forward (or backwards) in business you’re going to need a lawyer, preferably a business lawyer. We’re here if you need us.

Inga B. Andriessen JD

Those of you who follow this Blog or our firm’s twitter feed will know I’m no fan of the Games that are destroying my summer and business in the GTA. You can imagine how happy I am that Kanye et al have snuffed out the PanAm flame and I’m counting down the days until the Para Pan one is extinguished as well.

I’m not a huge Kanye West fan, though will confess that Stronger is on my workout playlist. So, with apologies to Mr. Kardashian (#slam) I’m humming along to the tune of Stronger these days but thinking:

Pan Am Traffic that that don’t kill me
Can only make me stronger
I need you to hurry up now
‘Cause I can’t wait much longer
I know I got to be right now
‘Cause I can’t get in the left lane
Man I’ve been waitin’ all night now
That’s how long I’ve been on you HoV lane.

Sigh. This is what I’m reduced to. Rhyming lyrics to a Kanye West song. This is what happens when you double my commute.

How many days until we get our lanes back?

Inga B. Andriessen JD

Those of you who are children of the 80s may recognize the Frankie Goes to Hollywood “reference” in the title of this Blog. Yes, I’ve stolen it from “War”. But the “absolutely nothing say it again” answer given in the song is not the same answer to the title of this Blog.

Many economists and business analysts are weighing in on what a Canadian Recession means for Canadian Business in general. In my opinion, those who generalize about a recession are not being accurate: there are businesses who thrive in a Recession. Those who don’t thrive can use the recession as an opportunity to fine tune their business to get through to the other side.

A recession is a good time to take a hard look at your employees. Has someone been slacking off, rubbing people the wrong way or refusing to perform their job properly? This is the time to let them go and, of course, blame it on the recession. Letting an employee go for “financial reasons” , provided you do so in accordance with the Employment Standards Act and with legal guidance to avoid law suits, is easier during a recession.

A recession is also a good time to clamp down on receivables. Have you been letting a “good customer” extend their payment terms? Using the recession, and claim of “bank pressure to tighten up receivables” is a great way to get money in without seeming like the “bad guy”. Blame it on the bank and the recession: you might feel more comfortable asking for money that way and your customer will be understanding as well.

So, sing it with me now: “Recession. Huh. What is it good for? Adjusting your business practices, say it again!” Good thing I’m a lawyer and not a song writer – right?

Inga B. Andriessen JD

Business is global. Doing business globally means at times you’re going to find yourself in a legal dispute with someone who is not in the same country as you. When that happens, where do you sue?

The first step is to read the agreement, if there is one, that you have with the other side. If there is a clause that sets out where you must start law suits, then you are bound by that clause. Note: a clause saying where the law suit must be started is not the same as the clause that says which laws are applicable. It is possible to litigate in Canada and apply USA law. It’s complicated, but it can by done.

If you’re free to sue in the country of your choosing, it’s wise to look at where the assets of the defendant are. If you obtain judgment in the country where they don’t have assets, then you’re going to have to bring a separate law suit to enforce the one you obtained. Sometimes that is an advantage: laws in certain countries make it easier to obtain a Judgment than in others. However, it is important to look at the laws regarding reciprocally enforcing judgments and determine that the test can be met, before deciding this is the route to go.

Ultimately, consult a lawyer before making a decision on where to sue. Better yet, consult a lawyer prior to doing business abroad and draft a contract that makes the jurisdiction where you are located.

Inga B. Andriessen JD

We’re into the first full week of July and normally things slow down in the summer. That appears to not be the case this summer, which is a very good thing in light of the “Canada is in a Recession” talk that started to come out of the USA last week.

So, what does your business need to focus on this summer? Here are our firm’s suggestions:

1. Review your receivables list closer than ever: make phone calls to those who are over your net terms as vacations can lead to gaps in payment if you’re not on top of them;

2. Use the great weather to network with new business leads on the golf course, over lunch on a patio or in the evening at a Fireworks display.

3. Be certain the work environment in your business is comfortable: sweating people out in a warehouse at 35 degrees is dangerous and not legal.

4. Review your business policies to ensure you’re complying with all the Government requirements. If you’re deficient, book an appointment with your lawyer to get up to date.

5. Plan for the fall. Use the time to plan where your business will focus once the nice weather is gone and everyone is “back to business”.

6. Take some time away from work to enjoy summer. If you don’t recharge, you’re going to burn out.

Inga B. Andriessen JD

Hold onto your hats, it’s rant time on the Blog today.

I recently read the traffic forecasts from “Officials” for the Pan Am games – I suppose I wouldn’t want anyone to know my exact title if I was forecasting traffic this either.

As a selfish, business lawyer, I of course first looked at the highways I travel frequently. The forecast for the QEW (our firm is at 427/QEW) is an additional 10 minutes of time East Bound into Toronto. Seriously? You’re going to take away an entire lane of traffic and you’re only going to impact my commute 10 minutes. I highly doubt it. The day before I wrote this blog it rained during my morning commute. The commute jumped 30 minutes. With all lanes open. There is no way 10 additional minutes is accurate when you eliminate a lane entirely.

I note in one news report “police have also being trying to get local businesses to allow employees to work from home or at times outside of the typical peak traffic times.” – See more at: http://www.newstalk1010.com/news/2015/06/09/pan-am-traffic-guide#sthash.n2WyqJki.dpuf Well, that is not very helpful advice for our firm, nor for many other businesses who cannot operate remotely.

The Courts will continue to operate during the games. The Tribunals located in downtown Toronto will continue to operate during the games (thanks HTRO for scheduling one of my files smack in the middle of the games). The business of law will continue to require lawyers to travel on the highways during “peak” games hours. Clients will be billed for additional travel time: no one wins.

What benefit exactly are these games bringing Toronto? Colour me bitter & cynical (you know I’m a business lawyer right?) but I cannot imagine the benefit to the tourist industry outweighing the overall destructive impact of the Pan Am Games traffic on all other industries.

It is completely ridiculous that a City, whose Traffic is one of the worst in the world, chose to host Pan Am Games and place venues in some of the hardest to reach areas of the GTA, then ask all of the businesses of the GTA to change how they do things to accommodate poor planning.

Now let’s talk Gardiner options … no wait, let’s not.

Inga B. Andriessen JD

The Toronto Star has recently been running a series about “precarious employment”. In the series is highlighting what they believe are failings in the Ontario Employment Standards Act. Some lawyers and politicians have picked up this mantle and are now calling for changes.

As a lawyer who represents Employers, I come at the issue from a different view point, but since we’re talking change, let’s do this. Here are some changes I would like to see:

1. The Employment Standards Act codify the maximum amount of notice to be provided to an employee.

The position of employee-centric people is that the Employment Standards Act week/year to a maximum of 8 weeks is not sufficient to protect employees.

The reality is that common law increases that notice to approximately one month/year or more. This makes for a lack of predictability for employers, unless they use employment contracts that limit entitlements to the Employment Standards Act Amounts. Employee-centric people argue that litigation is not available to all. The reality is there are many law firms who handle wrongful dismissal litigation on a contingency fee basis: everyone can afford that.

If the ESA codifies the maximum notice, then everyone is on the same footing: this is a good thing.

2. Allow verbal vacation requests for less than a one week period to be valid requests.

Many employers are unpleasantly surprised to learn that if an employee does not request a vacation of shorter than one week in writing, that time off is not accepted as a vacation day and the employer can end up paying twice.

3. Have statutory notice run from the date the notice of termination is given, not the end date of the notice.

An employer who generously gives more than the Employment Standards Act minimum notice, for eg. 7 months notice instead of 7 weeks required should not be punished for being more generous than the statue requires.

The above are only a few examples of changes to the Act that would avoid Employers finding themselves in a “gotcha” situation when they have been more generous than the Act requires, but find themselves treated as if they have not done so.

Fair means fair to both the Employer and the Employee.

Inga B. Andriessen JD

The hashtag included in the title of this Blog post is a term that keeps showing up more and more on the internet. Of course, some of the “relationship goals” seem a bit questionable, but to each their own.

As a business lawyer who works with everyone from a sole proprietor to multi-national corporations, I believe there should be a strong relationship between you and your Business Lawyer – not just a “call us when you need us” relationship.

As such, here are the goals we strive to attain for our relationship with our clients:

1. Advise clients of changing legislation as it comes into effect, not when the client arrives with an issue;

2. Clear bills – we tell you how long it takes and what we did on every single invoice;

3. Reporting letters at a minimum one month interval: yes, some of those are “your Trademark is still pending” but our clients deserve to know we’re monitoring their matter regularly;

4. Flat fee as much work as possible so that our clients are able to budget with certainty.

If there are other goals that should be added, I’d love to hear about them – because a good lawyer is always listening and learning.

Inga B. Andriessen JD

It’s interesting in the practice of Business Law how things go in waves. One week we have an influx of wrongful dismissal claims, like the week after the Ghomeshi allegations started, and another week, like one a few weeks back, clients are contracting with businesses in Quebec.

I’m not licensed to practice Law in Quebec. The Quebec civil law requires a completely different law degree and frankly, being born and raised in BC, my French is not good enough to practice law in that Province.

Many clients start off a conversation about possibly doing business in La Belle Province by asking “how different can it be”? Well, an auto financing company found out the hard way recently in a case reported by the Canadian Finance Leasing Association as follows:

“In a recent decision, the Court of Québec applied Section 107 of the Consumer Protection Act to authorize the plaintiff to return a financed vehicle when her financial situation changed (as a result of her separation from her common law spouse, a co-signer of the transaction), making her unable to pay the amounts due.”

To be clear, in Ontario, you can’t just return a car because your personal financial situation changed: we still expect people to honour their obligations in this province.

In addition to very different Consumer Protection Act legislation, Quebec has much more onerous obligations on the use of English in the workplace and it treats its employees very differently as well.

Before choosing to carry on business in Quebec, it’s important to be sure you know what you’re getting into – the costs may outweigh the potential benefits in many cases.

Inga B. Andriessen JD

Ah, nothing like a few pints (well, maybe more than few) and a Soccer Match to bring out the hooligan in some people: you all know what I’m writing about. I’m writing about the FHRITP comment (Google if you must, but beware it’s NSFW – Google that before the first one) that lead to the public termination of the Hydro One Employee.

When this became news last week, everyone was quick to ask everyone’s opinion: was the termination an overreaction?

I remained firmly on the fence, well sort of. I will admit I did feel the hooligan got his just deserts, but the Lawyer part of me would be very reluctant to encourage an employer client to follow suit.

The caveat to my Lawyer side is this: if the employer has a signed employment contract that notes the employee can be disciplined for any public behaviour that reflects badly on the employer, then go ahead and terminate for this behaviour.

However, in the absence of a signed employment agreement to that effect, the employer may find themselves on the hook for damages equal to one month per year worked and possibly more if they terminate the employee in such a public manner. If that happens all the “good PR” that is generated will probably not be worth the amount of money that is shelled out to the hooligan.

Another problem for an employer without a “morals clause” is if the hooligan works with women. In that case, the Ontario Occupational Health & Safety Act duty to provide a safe work environment will kick in and the employee will have to be counseled and supervised to ensure they are not creating an unsafe work environment. In a small business, this may create a very big problem and that may justify termination, but never, in a public way.

Ultimately, drunken hooligans need to stop yelling FHRITP. I suppose if this public termination stops it, then it is worth the risk that Hydro One took with the public termination. Of course, this might just end up being another line on my Hydro Bill and then I’m going to be smoking mad, can you imagine seeing:

Fee paid to Hooligan for terminating him due to yelling FHRITP on City TV $ 40.00.

I’ll be yelling something into a TV camera if I see that !

Inga B. Andriessen JD