Our Take on Things

I like to listen to AM640 in the mornings on my way to work.  John Oakley has a business analyst by the name of Lou Schizas on near the top of the hour.  He is conservative and has a good head on his shoulders, so he is ok in my books.  Lou often refers to the law of unintended consequences in his chats with Mr. Oakley.  The basic premise of this law is “beware of what you wish for”.  The Stones took a more positive spin with their famous line: “you don’t always get what you want, but if you try sometime, you might find, you get what you need”.

Eugene Meehan is a lawyer in Ottawa who deals with Supreme Court of Canada matters.  He has an email notice that goes out at least once a week updating on cases that have appeared before the Court.  The law of unintended consequences came up in one of the case summaries, sent to me this week:

CIVIL PROCEDURE IN QUEBEC:  BUSH-HIDING P.I.’S

The Applicant owned a cottage on land adjacent to the land of his sister, the Respondent Ms. Tétrault, with whom he had a strained relationship.  In March 1999, Ms. Tétrault informed him that she intended to fence the property and make him pay part of the cost.  In November 1999, she carried out her plan and decided to put up a fence along what she considered the boundary of her property.  Since she had already been a victim of mischief and she suspected that her brothers were the guilty parties, she wanted to obtain evidence in case there was any trouble.  For that purpose, she hired a private investigator, the Respondent Mr. Harnell, who hid in a bush and trained his camera on the Applicant’s property so he could take photographs when Ms. Tétrault put in the fence posts.  The Applicant was coming back from hunting with his weapon slung across his shoulder when he saw Mr. Harnell hiding in the bush.  He asked him what he was doing there.  To avoid revealing his assignment, Mr. Harnell answered that he was doing checks for Hydro-Québec.  Since there were no electrical transmission lines in the immediate area and it was a Sunday afternoon, the Applicant did not believe him.  During the previous weeks, the Applicant had heard about an aged couple from the area who had been beaten and murdered.  Upon hearing such a frivolous story, the Applicant, whose aged and sick mother was inside the cottage, thought that he might be dealing with one of the assailants, who had not yet been arrested.  He therefore told Mr. Harnell that he was going to get the police to come.  Mr. Harnell felt threatened and wanted to return to his vehicle.  Thinking that Mr. Harnell wanted to flee, the Applicant grabbed him by his shirt collar.  Because of the Applicant’s violent behaviour and the fact that he was armed, Mr. Harnell sprayed him in the face with pepper spray.  In the meantime, the Applicant’s brother arrived and the police were called to the scene.  The Applicant brought an action against the Respondents seeking $99,900 in damages.  Mr. Harnell argued self-defence.  Ms. Tétrault supported him and added that she was not liable for his actions.  Through cross demands, both of the Respondents claimed damages and their extrajudicial costs.  Trial judge in sum:  Applicant’s action dismissed; Mr. Harnell’s cross demand allowed and Applicant ordered to pay him $5,000; Ms. Tétrault’s cross demand dismissed.  The C.A. dismissed the appeal.
Maurice Tétrault v. Marie-Michèle Tétrault and Robert Alfred Harnell  (Que. C.A., November 17, 2010) (34064)  “The application for leave to appeal…is dismissed without costs.” 

So, to summarize, we have a sibling dispute which begat a fence, which begat a private detective, which begat a case of mistaken identity, which begat a pepper spraying, which begat a lawsuit that took 12 years to get all the way to the Supreme Court of Canada.

That was one expensive fence.

Paul H. Voorn, LL.B.

Today I am tasked with writing a blog entry on the impact of last night’s general election without offending anyone.  That shouldn’t be too hard, as in federal politics, unlike soccer, I am unbiased (at least in terms of party politics).

That having been said, I believe that Canada got a positive outcome last night.  Regardless of your political leanings, a  strong and stable government is exactly what the continuing economic recovery needed.  And policy predictability for the next four years can only help Canada’s international standing.

For our part, we have seen positive economic indicators in our clients’ businesses over the past year and are hopeful that the trend will continue.  Where the focus was on bankruptcy and downsizing, it’s now on conservative growth and on securing income streams.  The downturn knocked a lot of businesses out of commission, but it also provided the incentive to improve efficiency and minimize loss for a lot of our clients.  We’ve been happy to help with that.

There doesn’t appear to be anything noteworthy on our radar screens right now at the federal level other than a resumption of the federal policies we’ve spoken of before – but we will be keeping a close eye on the reintroduction of the federal budget for any changes from the last one tabled.  It will be interesting to see, however, what happens in provincial politics this year as that arena has a significant and direct impact on legislation that will affect our clients in the near term.

Scott R. Young

We tend to blog once a week, well, “tend” is not accurate: the boss (that would be me, writing this) has decreed, we must blog once a week & tweet at least twice. I have a good reason for this policy – I absolutely hate it when I follow a blog/twitter feed and nothing happens.
My thinking is that better to shut down the blog than blog, stop for a long period of time and blog again.

Of course, with this mandatory blogging can come the question: what is the blog on this week. Some weeks (not this one) have legal issues in the news that can and should easily be addressed in our blog.

With the federal election campaign in full swing, many legal issues are on the back burner until May and there is no way we are wading into politics on the blog – if we did that we could also wade into the other debates that are sure to ruffle some feathers and we’re not going there.

So, what good is social media to a law firm? I guess that depends on the firm. As a business law firm, this gives us a chance to follow our clients’ blogs & tweets, which gives us a better understanding of our clients. Our blogs & tweets give clients and others an insight into the services we provide as well as what we are up to from time to time.

Follow us on twitter @andriessenlaw, or sign up to follow our blog at andriessen.ca/blog and you can decide if we’re the type of firm you “like” or “dislike” … of course, for you to officially declare that we’d need a Facebook Page & we’re not going there either !

Inga B. Andriessen J.D., senior lawyer & chief tweeter

Right now, Ontario lawyers all around you are voting … well, maybe not at this exact moment, but still, they are/will/should be voting this month.

Who are we voting for? Benchers.
Naturally, if you’re not a lawyer you’re wondering: “What the heck is a bencher?” It’s not a coach that sits a player, but that weak attempt at humour doesn’t answer the question either.

A bencher is essentially a member of the board of directors of the Law Society of Upper Canada – the governing body for the legal profession in Ontario. There are 40 benchers elected from the legal profession – approximately ½ from Toronto and ½ from outside of Toronto – proving once again that Toronto is the Centre of the Universe, legally speaking.

The “big issues” in the election appear to be the mandatory legal education that has been put in place this year and the role of paralegals.

So, how do lawyers base their votes? Many carefully consider the issues, review the backgrounds of the candidates and evaluate their positions. Some are solicited to vote for candidates by people they don’t remember from law school, who were instructed by their large Law Firm employers to call people and tell them who to vote for.

I, however, prefer the sensible approach taken by Katherine I. Henshell – baked goods. Yes, you read that correctly. Katherine has ensured that the lawyer’s lounge at the Milton Court House has been stocked with homemade baked goods and a request to vote for her. Anyone who can make the type of shortbread that Katherine makes deserves my vote – though I am a bit concerned all her benchering might take away from her baking.

Maybe the Harper, Ignatieff & Layton campaigns will follow in Katherine’s footsteps if it works for her. Can you imagine getting Conservative Cupcakes, Liberal Cookies or NDP pies? I don’t think the Green Party should try the baked goods route though – most people seem to think organic baking isn’t appetizing and might not help the campaign.

Inga B. Andriessen, J.D.

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 have severed a prior relationship to the point where you were in litigation, you likely should not restart your business relationship. I stress business relationship as personal relationships certainly 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 an easy issue from my point of view as well. However, I appreciate that many business are concerned that they will lose a customer – of course, to those businesses I 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, let me tackle the 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 see 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.

Many business owners reading the entertainment news this week, and possibly following @CharlieSheen on twitter (not that anyone in our firm would do that) may be asking themselves “what would I do if I had an employee who was behaving in a similar fashion?”

The law in Canada is very different than the law in the United States and obviously, none of us really know what is going on in the situation that has taken over headlines everywhere.

However, for a moment, let’s presume that there is a possible substance abuse issue with an employee in your business. Many employers wish to know “can I immediately terminate that employee?” Another question that may spring to some employers mind is “can I require an employee to submit to alcohol and/or drug testing?”

As always, when addressing wrongful dismissal, it is important to realize that in Canada, it is very difficult to terminate an employee for cause.

Further, when you are dealing with a potential drug or alcohol problem, this dependency may be considered a disability under the Ontario Human Rights Code, and accordingly, you as an employer must consider accommodating the employee rather than terminating the employee.

If the substance abuse effects the workers’ job performance, or creates a danger to the safety of employees or others in the workplace, then the normal response to any work performance issue needs to go into effect. We have discussed the three warning plan in previous blog entries and encourage you to look back through the blog history if you are unfamiliar with this concept. It is important that offers of assistance are provided in the letters leading up to dismissal. One needs to review one’s benefit plan and if it includes rehabilitation, which often it does, that should be brought to the attention of the employee.

Dealing with the Ontario Human Rights Code issue of accommodation, for a substance dependant employee, this is generally considered to be rehabilitation. The role of the employer in facilitating this process is not to terminate the employee while that employee is at rehab.

Turning to the issue of mandatory drug and alcohol testing in the workplace, the Ontario Court of Appeal has addressed the issue of drug testing in the workplace in the decision of Entrop v. Imperial Oil.

This was a Court of Appeal review of an Ontario Human Rights Commission Board of Inquiry regarding Imperial Oil’s drug testing policy, which provided for automatic transfer to a non-sensitive work role if there was one failed drug test, and reinstatement to the previous position only upon meeting rigorous requirements.

The Court of Appeal held that substance abusers are suffering under a disability and entitled to the protection of the Human Rights Code. The Court of Appeal held that drug testing is a discriminatory practice against substance abusers and Imperial Oil was required to show that it was bona fide requirement for the occupations for which they were testing.

The Court of Appeal held that the policy’s purpose is to minimize the risk of impaired performance due to substance use in a refinery (where an accident would have catastrophic results) was an acceptable bona fide occupational requirement. The Court of Appeal went on to further hold that the policies had been implemented in good faith. Specifically, that Imperial Oil has the right to assess whether its employees are capable at performing their essential duties safely.

The Court of Appeal also held, however, that the random drug testing provisions of the policy suffered from a flaw in that the sanction for one positive test, which was automatic transfer out of the immediate position, was too severe. In some cases, termination may be justified but in another, the employee circumstances may call for a less severe sanction. Imperial Oil had failed to demonstrate to the Court why it could not tailor its sanctions to accommodate individual capabilities without incurring undue hardship.

This was only with respect to drug testing, however, provisions where random alcohol testing by breathalyzer could immediately show impairment, and that would be legitimate to take steps to deter and detect alcohol among its employees in safety sensitive jobs. Automatic dismissal as the result of a random alcohol test was considered to be too severe.

Anyone considering a drug and alcohol testing policy in the workplace must legitimately have a basis for requiring that to take place. Further, the way a positive test is handled is critical and employment location specific.

Therefore, if you find yourself working with an employee who declares his or herself “tired of pretending I’m not a total bitchin’ rock star from Mars”, this is not territory you should navigate on your own, rather, you should seek the advice of a business law firm, such as ours.

As with any “news” story, some of the quotes that have been provided throughout the week are thought provoking. To that end, I leave you with the thought that the following may become our firm’s mission statement:

“It’s perfect. It’s awesome. Everyday is just filled with just wins. All we do is put wins in the record books. We win so radically before our first cup of coffee, it’s scary.”

Inga B. Andriessen, J.D. (may have Tiger blood, but is clearly lacking in Adonis DNA)

It’s almost February 28, have you prepared all of the T4s for your employees? Leave aside the obligations under the Income Tax Act, employees who are expecting a refund will appreciate getting T4s sooner than later.

As a Business Law Firm, reminding clients of “small things” like T4s is part of what we do because it avoids big problems in the future.

Employees who are resentful are less productive. Less productive employees are ones that employers often seek to terminate – which means a cost and often legal fees to assess the termination package or defend a wrongful dismissal lawsuit.

I was talking with a colleague while waiting to be heard in Court this week and he related the employment culture of the new firm he found himself in. This is a firm with a culture that values thriftiness over employee satisfaction – in my opinion not a great way to ensure you have long term employees.

Our firm has many very long term employees, 2 over 13 years, one at almost 10 and a couple 3+.

Aside from getting them their T4s on time, we also ensure that everyone understands that when we say work/life balance we mean it AND that title is not a reflection of your value to our firm – we all contribute to getting the best results for our clients.

So stop reading this blog (because really, you’re just wasting time, aren’t you) and get those T4s done. You will thank me for this free advice.

Inga B. Andriessen, J.D.
Senior Lawyer, happy recipient of an early T4

My wife is a psychologist. A clinical psychologist. A clinical psychologist who is a tenured professor at York University. She is smarter than me. She has a lot of degrees.

She likes to send me psychology articles that are related to the law. Some I can digest, others make me go “huh?”. I took psychology in undergrad. I actually majored in it. But it was always an elusive topic for me.

I went into law thinking it was black and white – you are guilty/not guilty. You owe the money/you don’t. Over the years, it became obvious this is not the case.

And now, thanks to my wife, I can bring psych articles to your attention to show why. Lucky you.

She sent me a paper by Ian Weinstein, published in the Clinical Law Review called “Don’t Believe Everything You Think: Cognitive Bias in Legal Decision” (volume 9, no. 2 of the Spring of 2003 if you really need to look it up).

Cognitive bias? It is a persuasive error in decision making. Gamblers exhibit it when they believe that a slot is about to hit it big or when they play the same lotto numbers each week thinking that the numbers have to come up sometime. The error in decision making? They ignore or do not understand the laws of probability.

As lawyers, we need to recognize that clients come in with cognitive biases when they walk in the door. And that we have them ourselves.

Clients may have a misguided understanding of the legal system (I blame all those darn TV shows). Lawyers that have been in the system awhile may just take it for granted that the client has the same understanding. That is a bad way to start a lawyer/client relationship.

Here is a quote from page 787 of the article:

“Our clients should have the best predictions about the future and the best assessments of the relative merits of their choices before them when they apply their own personal preferences to make their decisions. Understanding bias will not yield perfect decisions but it can improve the process of decision making. If we understand the counseling process as, in part, guiding our client’s information processing along a well trod, but sometimes problematic path toward predictions and assessments of relative merit, we may be more patient and effective counselors …”

Some words to remember when you walk in the door and we shake hands.

Paul H. Voorn

It’s starting to be the “most wonderful time of the year” if you’re an accountant, which we are not. However, accountant or not, we all start to turn our minds to taxes as April looms closer & closer.

In August 2010, the Federal Government released details of its new reporting regime for aggressive tax planning that would require every “advisor” to report “reportable transactions” to the government. This means that if you’re discussing tax planning with your accountant, the government requires the accountant to report to them a possible issue.

This week the Canadian Bar Association received confirmation in writing from the Minister of Finance that Lawyer/Client confidentiality is not impacted by the above directive and all Lawyer/Client conversations remain privileged.

Many times accountants try to perform legal functions, this is another example of why you should use a lawyer to get legal advice. The lawyer can retain an accountant to obtain tax specific advice and this way, your conversations with your lawyer are confidential.

The point of this is not to encourage tax fraud. Our firm will not provide advice to anyone as to how to commit a crime. However, clients need to feel free to be able to ask questions without fear of investigation a la George Orwell’s 1984. If you don’t know what you are thinking is wrong, you should be able to learn that without being reported to the Government.

Inga B. Andriessen, J.D.