Our Take on Things

The word trademark sounds important to many. It sounds big.  It sounds expensive.  As a result, many small businesses believe that registering a trademark for their name and/or log is not important.

While cost is always a consideration in any business decision, registering a trademark will actually save legal fees, in the event you are challenged by someone who did register a trademark and takes you to court for infringing.

This is not to say, failure to register a trademark means you will lose the court challenge: however, obtaining your own registration ensures you are far less likely to find yourself defending your brand from attack.

Urban Distilleries Inc. learned the above lesson the expensive way.   The company started marketing its’ vodka and gin as “Spirit Bear Gin” and “Spirit Bear Vodka”.  The company did apply for a trademark on the names and the City of Terrace and Kitasso Band Council opposed the registration.  Rather than following through the legal process to conclusion and defending their registration, the distillery abandoned the process, believing it could continue to use the unregistered trademark.

The City & Council brought a Court proceeding in Federal Court claiming their rights over the trademark and sued the distillery for infringement.   Happily the distillery won the law suit, however, it had a very large legal bill.

The legal bill could have been avoided had the distillery completed the trademark registration process.

When you are starting a business and building your brand, take time to protect that brand. If you use a trademark agent (such as our firm) to register the trademark before you invest a lot of money and time into it, you’ll ensure you’re not throwing away hard work on something someone else is already using.

Our firm charges a flat fee of $ 2 000.00 plus disbursements and taxes to register a trademark. This includes all meetings, correspondence, phone calls and registration documentation to protect your brand.

If you’re a new business, $ 2 000.00 is a lot of money. However, litigation to protect your brand will easily cost you $ 20 000.00 or more.

Some things are worth protecting and your brand is one of them.

Inga B. Andriessen JD

If you are a commercial landlord, then you may have some knowledge of executing a distraint to collect rent owed to you.

If you are owed rent monies, then you have the right (unless it’s been removed in the lease) to take the chattels of your tenant and sell them, with the net proceeds of the sale applied to the rents that you are owed.

Some leases even dictate that certain non-monetary breaches of the lease will trigger a right to collect accelerated rent, thus bringing the right to distrain into play.

Often, a landlord uses a distraint to scare or embarrass the tenant into payment, as the presence of a bailiff in the premises taking an inventory of all of the furniture, computers and artwork on the walls (and taking pictures of it all) does not convey a positive image to employees and clients of the tenant.  Many times, payment flows after to the bailiff for the full amount of the rents owing along with the bailiff’s costs of the distraint.

Distraints can, however, be fraught with danger if used unwisely or if done improperly.  Illegal or irregular distraints can give a tenant a cause of action against the landlord for damages.  Those damages can be very significant if the landlord improperly seizes and sells the chattels of the tenant, which could cause the entire business operations of the tenant to collapse. A common example is an excessive distraint – that is, where more chattels were seized than was necessary to satisfy the arrears.

A distraint cannot be used after a landlord has terminated the lease and locked out a tenant.  However, landlords without an understanding of commercial tenancy law often attempt to do so regardless, realizing too late that the chattels had value or attempting illegally to coerce payment from the tenant by refusing to allow the chattels to be removed.

There is also recent caselaw from the BC Court of Appeal that suggests using a distraint to collect accelerated rent will require the landlord to wait out the accelerated rent months before it can abandon the distraint and instead proceed with a termination of the lease.  That could cost a landlord tens or hundreds of thousands of dollars in lost rent while waiting for those accelerated rent months to pass.

Our office utilizes a bailiff who has decades of experience, which compliments well with our similar years of experience in this area of law.  An experienced counsel and bailiff are essential to properly and effectively exercising a distraint remedy.

Paul H. Voorn LLB

As a Business Law Firm, a growing part of our practice is advising and representing employers in Applications before the Human Rights Tribunal of Ontario (HRTO).

If your business has not been hit with an Application, you may feel this Blog is irrelevant to you: think again.

The trend in decisions of Courts and Tribunals is to completely erode the ability of Business to predict the reasonable likely outcome of their positions when it comes to accommodating employees with disabilities.  This is particularly so when the accommodation involves balances that requirement against the requirement to protect the other employees from violence and/or harassment by the individual who must be accommodated.

In theory, a business only need accommodate a disability if it does not provide undue hardship to the business.   After reading a recent decision of  the HRTO in the matter of MacLeod and The County of Lambton, it appears this that the employer must endure undue hardship.

In the Lambton matter, a bipolar employee who sexually harassed co-workers, verbally abused superiors and those he supervised and bought expensive equipment that was not authorized and is now missing, was required to  be reinstated into the workplace as a manager again.

Incredible.

I can only imagine how many people will be looking for new employment in that workplace.

I cannot comprehend how the HRTO was able to ignore how the women who were sexually harassed by this person will feel having to report to him.  This is mind boggling.  This will create a completely dysfunctional work environment.   This is accommodation beyond undue hardship.

Not only was the employer required to take back the employee, they had to pay for expensive training, pay damages for “hurt feelings” and a litany of other expenses to comply with the HRTO.  The employer in this case was a Town’s EMS; therefore, it is the tax payers who are picking up the tab for this decision.

If you are en employer dealing with an employee claiming a physical or mental disability, or simply exhibiting characteristics that may be a disability, get legal advice before taking any action regarding accommodation or refusing to accommodate.   Getting this wrong will be expensive.

Inga B. Andriesen JD

 

 

 

On October 29, 2014, Ontario Employers are required to provide three new types of leave to employees who qualify for those leaves.

The leaves are:

1. Crime-Related Death or Disappearance Leave;
2. Critically Ill Child Care Leave; and,
3. Family Caregiver Leave.

1. Crime-Related Death or Disappearance Leave

The Crime-Related Death or Disappearance Leave is available to employees who have been employed for six months or more.

If the leave is a result of a child who has disappeared as a result of a crime, the employee may take up to 52 weeks of leave. If the leave is a result of a child who died as a result of a crime, the employee may take up to 104 weeks of leave.

2. Critically Ill Child Care Leave

The Critically Ill Child Care Leave is available to employees who have been employed for at least six months.

The employee may take up to 37 weeks of leave to provide care or support for a critically ill child. The employer is allowed to require a certification by a qualified health professional that the child is critically ill and the employee must provide written notice of the leave.

3. Family Caregiver Leave

The Family Caregiver Leave is available to all employees, regardless of their length of service and is available for 8 weeks per calendar year. The 8 weeks do not have to be consecutive weeks.

“Family” is defined as including children, siblings, parents and grandparents who have been certified by a qualified health practitioner as having a serious medical condition. The employee must provide written notice to the employer and a copy of the health certificate if requested.

All Leaves

As with all leave provisions in the Employment Standards Act, you are not required to pay the employee during the leave (unless there is an employment contract requiring that you do so). The employee may be entitled to Government Benefits depending on the nature of the leave.

If you have an Employee Handbook, or equivalent document, it is important to update it to reflect these new leaves.

As always, if you have any questions, we’re here to help.

 

Inga B. Andriessen JD

So, the public might imagine that the Law Society of Upper Canada’s release of new Rules of Conduct for lawyers next month is directly tied to the lawyer who was just caught, allegedly improperly disbursing trust money. The public would be wrong.

Yesterday the Law Society held a two hour webinar on the new Rules and given the technical difficulties the webinar encountered due to the amount of users, I was among many who tuned in.

When I tuned in I was surprised, in a way, that the changes were required. It seemed to me, a lawyer who practices in the trenches, that many of the changes were simply the common sense application of the rules we currently have.

It’s not complicated. Here are the simplified Rules of Conduct, in my humble opion:

1. don’t steal from your clients;
2. don’t lie to your clients, other lawyers or Judges;
3. don’t tell people who your clients are, unless the client says it is o.k.;
4. don’t act against a client you previously represented;
5. don’t tell people what your client told you, unless your client says it is o.k. or someone is going to immediately get hurt if you don’t;
6. be polite and respectful to your clients, other lawyers or Judges;
7. document all instructions from your clients and all advice that you give them.

The pages and pages of discussion that are in the new Rules are really just an academic exercise in detailing the simple commandments included in the above Rules. While some people may enjoy academic contemplation, the reality is: follow the above and you’ll be fine.

Inga B. Andriessen JD

Here’s some interesting information on why having a lawyer advocate on your behalf is a good idea.

A recent study came out in the Journal of Empirical Legal Studies titled “Lawyer and Nonlawyer Susceptibility to Framing Effects in Out-of –Court Civil Litigation Settlement” from researchers in England.

The study showed that lawyers are better than non-lawyers at ignoring framing effects. Framing what, you ask? Think of a lawsuit in which you are involved. If you have the potential to settle it for a gain with money coming in, then you will be more likely to settle for a smaller (but definite) gain rather than take the risk associated with seeking more (which can include the risk of getting nothing at all).

On the other hand, science shows that individuals do not act rationality when it comes to a loss scenario. In that case, where you are paying money out to settle the lawsuit, science says that you are more likely to ignore the potential to settle for a smaller (but definite) loss and will instead risk continuing forward even though the risk entails losing even more (as that additional risk includes the potential of having to pay nothing if you win the lawsuit).

Happily for you (if you hire good lawyers like us), the study confirmed that lawyers are less likely to be subject to this bias in reasoning.

Lawyers are trained to analyze fact scenarios and assess the risks of proceeding forward, whether or not you are facing a gain or loss situation. Lawyers regularly make recommendations to clients on settlement, setting out the risks associated with proceeding forward and the potential outcomes. With the advice of your lawyer, you are then in a better position to properly assess risk and avoid the “framing effect”.

Now you have the scientific proof to confirm that there is value in retaining our services!

Paul H. Voorn, LLB

Andriessen & Associates, Professional Corporation

Normally this Blog is about Business Law Topics, well, that and the occasional rant about something one of us in the firm is going on about and needs to share with the rest of the universe.

This Blog, however, is addressed to those of you starting Law School this week. If you’re not one of those people, you can still read it, I won’t get mad.

25 years ago this week I hopped on a big old Jet Airliner from the West Coast to take me to Osgoode Hall Law School in Toronto. Here are a few things that I learned from that first year in Law School:

1. Make friends quickly – these will be friends that are yours for the rest of your life. The more friends you make the better as your professional network will be that much larger throughout your career.

2. Get involved in the clubs that are in the area of law you are interested in. Don’t sign up for Criminal Cases at your Law School’s legal aid clinic if your true interest lies in Business law. However, if you want to litigate any court room experience is good experience, so don’t limit yourself just to civil or criminal.

3. Connect with your Professors so they know who you are. School year and summer jobs with Professors lead to great recommendations and open doors that otherwise might remain closed once you graduate.

4. Don’t just study. Law School is a good time to start that work/life balance many of you will be demanding from your employers in a few years. Make sure that you get in the habit of working out to relieve stress and try to figure out how to eat more than poutine – your future self will thank-you for that.

5. Research the Articling Process within the first month of your first year of Law School. By doing this, you will understand the importance of meeting the law firms that come to your school and will be able to do the things they are looking for in students. Remember, you’ll be interviewing for Articling Positions in 2 years and that time creeps up on you quickly.

6. Not everyone needs to work on Bay Street. If you’re at a Toronto Law School, you’ll be surrounded by people who think the only place to work is at the intersection of King & Bay. It’s not. It is o.k. to want to work to live, not live to work.

7. You have one reputation in our profession: don’t lose it on the pub crawl during the first week, or the boat cruise or the parties.

I enjoyed almost every minute of Law School and I hope the students starting out feel the same way. Good luck to all of you and welcome to our profession!

Inga B. Andriessen JD

I read a column in the Globe & Mail this week called “Nine to Five”. An employee had written in complaining that her boss was in her office, looking through documents, though she had locked the door.

The answers no doubt surprised the employee: the boss was within their rights to go through the employee’s office.

Employees need to understand that everything at the office is the property of the employer. Work created while employed becomes the work of the employer, not the employee.

Similarly, the employer owns the work email address that employees use. The employer is entitled to shut it down if you are terminated or to browse through the logs (yes, your employer can keep logs) to see what is being emailed.

A good rule of thumb is never use your work email address for something you wouldn’t put on letterhead. You wouldn’t send your child’s hockey coach a letter on your employer’s letterhead, so don’t provide that email to the league and have it be the primary point of contact.

Keep your personal life and your professional life separate, that way your personal life can continue seamlessly on the internet, long after you retire from your work life.

Inga B. Andriessen JD

As a business lawyer, my favourite hat to wear is that of business litigator. I truly enjoy my role in the court room above any other. However, there are many other interesting hats I wear and as I become more senior in the practice, those hats are worn more and more frequently.

The lawyer as mentor is a role we take on from day one as a newly called lawyer. We are de facto mentors to the articling students and others who are considering a career in law, but have not yet entered the profession.

We can encourage high school students as they select undergraduate paths of study and recommend the best LSAT study format that we know of.

Mentoring does not have to be for a long period of time, it can simply be for the length of a conversation.

Formal opportunities to mentor exist for lawyers through the Law Society of Upper Canada as well as many associations, including the Canadian Bar Association. The new Ryerson LPP program will use lawyers to mentor groups of four students: what a fantastic way to get involved with new and (hopefully) enthusiastic lawyers.

As legal professionals, I believe we have a duty to mentor: it’s part of what makes us professionals.

Inga B. Andriessen JD

Proceeding with an Action in Small Claims has changed as of July 1, 2014. It’s not a big change, but it is a change (honestly, we’re a little disappointed that the changes are not bigger).

Prior to July 1, 2014 a defendant who wanted to defend a lawsuit had to file their defence with the Court, pay the filing fee and the Clerk, by regular mail, would send a copy of the defence to the plaintiff.

As of July 1, 2014 a defendant must first serve their defence on the plaintiff then file their defence with the Court (and pay the fee), together with an Affidavit of Service confirming the plaintiff was served. This is the same procedure that matters over $ 25 000.00 follow in the Superior Court.

The changes to the Rule increase the risk of defendants not filing their defence and Affidavit of Service in a timely manner.

This will result in many plaintiffs spending time and money to get a judgment, only to have the Court set it aside on a motion to set aside default judgment.

July 1, 2014 – the dawn of CASL (Canadian Anti-Spam Legislation) which increases costs to businesses and the day of changes to the Small Claims Rules that will likely also increase the cost to businesses to litigation. For a day that is supposed to celebrate the birth of our country, it sure takes away the joy of doing business in it.

Murray S. Brown, Licensed Paralegal