Our Take on Things

The Mayans were wrong, so we can all continue the tradition of reflecting on the year that was and resolving ways to improve 2013.

There were some interesting Supreme Court decisions that were released this year and make are interesting to reflect on, though probably more interesting to lawyers given their technical nature. Last weeks ruling/non-ruling, depending on whose opinion you ask, regarding the Niqab in Court is interesting – as a litigator I want to see the full face of the person I’m cross-examining. In reading that decision I wonder how the “true measure of the woman’s faith” is determined, those cases will be difficult ones to be the sitting Judge on.

As a firm, I’m very proud of the work we did this year on the line of cases using the Oppression Remedy to collect money from debtors who close their doors in the face of a lawsuit or judgment. While it is not as interesting as the Niqab decision, the case law is making debtors accountable and that is a great result for all creditors, not just our clients.

In terms of resolutions, this is where I get all boring and lawyerly . Our firm resolves to continue providing plain English, reasonably priced Business Legal advice. We also resolve to have an interesting Blog each week and tweet each day, which may be less legal than sarcastic, but a tweet is a tweet.

We all wish you the very best in 2013!

Inga B. Andriessen, JD

Well, this has been a fantastic week hasn’t it? (sarcasm alert, in case it was missed)

Shootings, strikes, threats of more strikes, Human Rights Complaints about Merry Christmas Signs & Albino Rhino Beer. Kind of sucks the fun out of the holidays, doesn’t it?

Of course, as lawyers it is our job to suck fun out of everything, so on that note, here is some business law advice for the holiday season:

1. Alcohol in the office is an invitation for harrassment, don’t do it.

2. You have to pay employees for December 25, 26 and January 1 unless you are in protected industries such as IT and Law … though even I’m not cruel enough to make the lawyers work those days.

3. If you have an office party and there has been drinking, make sure people take cabs home – there is potential liability to an employer you do not want to deal with.

A Merry Bah Humbug to all & to all a good night.

Inga B. Andriessen, JD

Continuing on my unintended multi-part series on social media and the law…this week we talk about what happens with your social media when you die.

There are very few directives that you can make in Ontario which will have any legal effect after you die. Organ donation is subject to the consent of your next of kin; your burial wishes, again, will depend ultimately on what your next of kin desire; likewise, what happens to your social media accounts will depend on a host of factors, outside of your control. About the only certainty you can have, is that the property you give away in your Will, be distributed according to your wishes – subject of course to any debts, public policy priorities or other factors…

As social media becomes a more important part of a person’s (or a company’s) brand, different groups have been taking various approaches to social media post mortem. The media companies have developed some interesting policies – Facebook allows your family to turn your profile page into a memorial site; Twitter will deactivate an account after being provided with a notarized statement and some supporting documents; major e-mail providers alternate as to whether they will or will not provide account access to next of kin. There are also a few third party services available that are designed to delete your accounts en masse, upon some triggering event, such as your death.

This presents difficulties when it comes to estate planning. As these services are not property, they can’t be addressed in a Will. Some government authorities have suggested that it’s important to think about and plan for your social media after your death, but none have passed any legislation that governs this area – not yet anyway. It’s a little bit of the wild west.

The best way to deal with the problem that I’ve seen is in the use of advance directives (one for personal accounts, and one for business accounts) that express your last wishes (or tweets?) and give your Estate Trustee the passwords required to give effect to those wishes. Granted, this is probably a violation of most social media terms of service policies, but it’s probably the most workable. A notification as to the existence and location of the advance directive, placed in a Will can also be a helpful adjunct in ensuring that social media gets dealt with in a timely manner after your death.

The area is evolving and I suspect in ten years, we’ll have an entirely new way of thinking about these issues, but for now, this seems like the most sensible strategy.

Scott R. Young

Two issues have been dominating the Greater Toronto Area headlines the past few weeks: The Teacher’s Unions work to rule action and Rob Ford’s Conflict of Interest Case.

As I write this blog, the Rob Ford conflict matter is headed for an argument on a Stay, pending appeal. As a lawyer the frustrating aspect of reading about this case is not the politics, it’s how the legal reasoning in the Judge’s decision has been glossed over by most media outlets, reducing the issue to left over right.

When the decision was released I did the “lawyerly thing” I read the decision. The thing that jumped off the page for me was the Judge’s commentary that the legislation restricted what he could do to all or nothing. Judges interpret the law, they do not write the statutes.

The interesting aspect of this matter for me is the legal aspect: how a law suit pointed out a problem with a statute – it happens more often than the public is likely made aware, but it is an important part of the development of law in Canada.

This brings me now to the teachers.

The teachers, as I understand it, have launched a law suit to challenge the legality of the law changing their collective bargaining rights.

As a lawyer I think that is the right thing to do if you disagree with a legal issue – take it to Court and have a Judge decide. I do that all the time.

What I don’t do, is sue someone on behalf of my client and then encourage my client to start a street campaign against their opponent. If I did that in a lawsuit my client’s behavior would like weigh against them in the litigation, as it should.

If you take a matter to the Court, then let the Court decide.

Somehow this aspect of the teachers dispute has been glossed over by the media who are more interested in the next threatened job action.

Too bad, as from the legal point of view, the law suit is likely to have a far greater impact on the future of collective bargaining than driving a wedge between teachers, students and parents.

Inga B. Andriessen JD

I received an email this week advising that there is talk of reducing funding to Ontario’s Law Libraries which could lead to their closure.

When I found myself in a Law Library this morning, preparing for Court, I wondered what impact that would have on me personally.

I use the Library regularly. Whenever I go to Court, however, my use of it is confined to photocopying, using the computer and preparing in a quiet environment.

I have used the “stacks” in the library perhaps once every two years over the past twenty years.
While I was taught how to use the Canadian Abridgement in law school (such a misnomer, was an encyclopedia type system to find cases) Quicklaw and other online legal research was coming to the forefront and by the time I was called to the Bar, the need for hard copies of texts had dwindled significantly.

The cost for online legal information has been reduced drastically as well. Quicklaw and other “premium” services charge a fee, but that fee has come down over the years. Sites such as canlii.org provide much of the same information for free.

In speaking with a Law Librarian today she conceded that most of the calls for research she receives are from older, non-internet savy lawyers. Lawyers who practiced before the internet age.

As with non-legal books, e-publishing is taking off. This has lead to e-libraries for regular books and I suppose ultimately will go that direction for Law Libraries.

I hope they still leave us with a quiet place to prepare for Court though. Lawyer’s Lounges are great for conversation, but not too great to review a Book of Authorities.

Inga B. Andriessen JD

The Law Society of Upper Canada, the governing body of lawyers in Ontario, is currently grappling with the issue of Articling.

Articling is a “practicum” that lawyers, who have finished law school and the bar admission course, complete with a law firm before being able to be called to the bar. The purpose of Articling is to give lawyers practical education: law school teaches us to think like lawyers (critical thinking, advocacy, arrogance (kidding on the last one, we’re born with it)) but it is Articling that teaches lawyers how to actually practice law (advise a client, run a lawsuit, draft a document).

When I was an Articling Student, we had to Article for 12 months, now it is 10.

When I was an Articling Student, almost everyone had an Article, now there are many going two years + without an Article. Some give up on getting called to the Bar. This means that 3 years and between
$ 48 000 and $ 75 000 in tuition is wasted. Wow.

The Law Society is looking at an alternative form of Article that will allow lawyers to be called to the Bar by gaining practical experience in a slightly different manner. They believe this will work. Perhaps it will.

At the end of the day, do we need Articling? I think we do. It was during my Articles that I conducted 11 Small Claims Court Trials – this provided me with the foundation to be in the Court of Appeal with confidence in my first year as a lawyer. Without Articling, I would not have known what to do.

This is not an easy issue to resolve – too many lawyers want to be called to the Ontario Bar and that is not something that is going to change in the near future.

Inga B. Andriessen JD

With the increasing digitization of documentation and the proliferation of smartphones, we’re seeing an interesting trend in the apps marketplace – apps that allow users to digitally “sign” PDFs or other document types with their fingers.

As a techie, I am impressed with the innovation; as a lawyer, they set off my bullshit detector.

The apps, despite being designed and marketed by non-lawyers, in various jurisdictions around the world, come with the expected assurances as to how absolutely legally valid and binding the resulting digital documents are.

The reality is that there are a variety of factors that will determine the valid execution of a legal document. Depending on where you are, who you are, what you’re signing and your history with the document in question, the digital signature may or may not be valid.

If you’re signing a trust document, or anything having to do with real estate or leases of a certain type – and you’re signing it with your finger on your iPhone – stop! There’s a host of legislation – including the Statute of Frauds, one of the oldest and most awesomely named pieces of law we have – that require that you put pen (or quill) to paper in order to create a legally enforceable agreement.

If you’re executing a Will on your smartphone, you will have what we lawyers call “not a Will” or an “unWill” or maybe a “non-Will.” In Ontario anyway – the execution requirements for that particular document are incredibly precise and the caselaw is full of decisions of judges determining what is, and what is not, a Will.

If you drafted the document and put it to someone else to sign on their phone, they’ve probably got a really good argument for a contra proferentem (not good for you) interpretation in the event of a contract dispute. Sorry for having to resort to Latin to make my point, but it’s an important one.

The reality is that most lay people fundamentally misunderstand the nature of a written agreement. It’s not some magical thing that binds all who sign it to whatever it contains – it’s just a piece of evidence that provides clarity about the terms of an agreement that may or may not be legally enforceable depending on a host of factors.

While the emerging technology is neat, you’re still going to want to rely on some rock solid legal advice before drafting, negotiating or executing any legal documents – now, and in the future (until Siri™ gets her law degree anyway). In the right hands, applications like these can make the way we do business a lot easier – but used incorrectly, they will cost you a lot more than the 99¢ purchase price.

Scott R. Young

It’s funny how the same topic can raise its head in different ways on the same day. Today was that day for me with respect to Limitation Periods. I know, really? Limitation Periods are not that interesting at the best of times, let alone twice in one day.

The first time the issue was raised today was in Court, which is not really a surprise, I am afterall a trial lawyer. In Ontario, we have a Limitations Act which generally (and only generally) says you must sue within two years of discovering you have something to sue about.

Counsel on the otherside of my matter argued that my client was not allowed to sue on invoices delivered prior to two years from the date we issued the claim. Fortunately, the Limitations Act and a Court Decision stated plainly: the clock is reset everytime a partial payment is made.

The second time this issue came up today was when our courier company refused to address their delivery of a package to the wrong address, which the recipient then destroyed instead of returned. The courier company is claiming we had 15 days to let them know of the problem. Of course, the party we were sending it to didn’t realize they had not received it until this arbitrary 15 days was up.

Would this Limitation Period hold up in Court?

I’m perfectly prepared to find out and will let you know if we have to fight it.

Inga B. Andriessen JD

There’s an interesting news item making its way around today about a lawsuit against the City of Toronto and councilor Adam Vaughan. The suit alleges, among other things (or “inter alia”, as they taught us in law school) that the City and the councilor went overboard in applying municipal bylaws as against a downtown nightclub, in an effort to force it out of business.

The suit in essence, contends that the nightclub was singled out, and as a result received repeated visits from Police and bylaw enforcement officers, to the point of harassment. However, the particulars also seem to indicate that the nightclub acknowledges that it did not have the appropriate operating licenses in place.

Our firm has represented various types of businesses in licensing and compliance matters with the City, and luckily we’ve never had to resort to this sort of litigation to try to save them. That said, licensing matters are often complex – incredibly complex when dealing with historical issues, as is often the case by the time legal counsel gets involved.

In addition to the legal complexities of the interwoven federal, provincial and municipal legislation, there are other fields entirely that must be considered. For example, we regularly retain experts on planning and zoning issues. These experts regularly deal with the data gathering process that underlies everything from the making of a City Plan to minor variance applications. Together, we work with the City to understand the context of a business, the applicable licensing environment, the community impact of the business, and usually we find that there’s a way through an impasse.

It’s hard to tell if all attempts to work within the system were exhausted in the current litigation, but it’s unfortunate that it has gotten to this point. Hopefully there are still opportunities for a negotiated settlement that will see a balance between the needs of the community and the needs of the local business.

Scott R. Young