Chad Blundy

July 23, 2020

Intellectual Property, Commercial & Corporate

Valid, Void and Voidable Contracts

Chad Blundy

July 23, 2020

Intellectual Property, Commercial & Corporate

Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

What makes a contract voidable?

Voidable contracts have elements within the contract that are enforceable, therefore on their face, they appear to be valid. However, they also contain elements that make is possible for one or both parties to void the contract entirely. The contract is considered to be valid if the injured party opts not to take action and not render the contract void.

Reasons a contract may be voidable:

Failure of one or both parties to disclose a material fact,
Fraud,
Duress,
One party is legally incapacitated,
The contract contains unconscionable terms.

To enforce the voidable contract, one of the parties must exercise their right to render the contract void. But both parties have the right to enforce the contract. A void contract is different from a voidable contract because from the moment a void contract is created it cannot be fulfilled while a voidable contract can be performed and enforced as soon as the contractual defects are corrected.

What makes a contract void?

A void contract is a formal agreement that is illegitimate and cannot be enforced by law because it cannot be performed.

Reasons a contract may be void:

One party is contracted to do something impossible,
One party is contracted to do something illegal or against public policy,
The contract restricts an individual’s rights.

What makes a contract valid?

A valid contract creates a legal agreement between two parties. A valid contract contains an offer, acceptance and consideration as well as meeting of the minds and mental capacity, therefore parties are legally responsible for the performance of the contract. If one party breaches the contract, the other party may go to the courts in order to receive remedies. All elements of a valid contract are legal, enforceable and binding.

Elements of a valid contract:

Offer
Acceptance
Consideration
Meeting of the minds

Articles written by Sarah Nadon:

What Is Trademark Confusion?
Understanding Construction Liens Force Majeure Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

Chad Blundy

July 21, 2020

Community

Co-Parenting In The Age Of A Pandemic

Chad Blundy

July 21, 2020

Community

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

From the advent of the novel Coronavirus, now identified as Covid-19, many changes have been implemented. These include, but are not limited to, cancelled sporting events, transitions to online education, and the closure of jurisdictional borders. In all of this, some things have not changed, including navigating co-parenting for separated and divorced spouses. Although there has been a suspension of regular Superior Court of Justice operations, urgent family law matters are still being dealt with at this time.

  
    Many questions arise regarding the safety of children, especially if one parent has an increased risk of exposure due to the nature of their employment. In the recent case of Ribeiro v Wright, the Ontario Superior Court provided some guiding principles on these issues. It was established that both parents must work together to show flexibility, creativity, and common sense during these times to ensure the physical and emotional well-being of the child.1

Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2  Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3

Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4

Under normal conditions, if the payor parent has a change in financial circumstances, they can apply to the court to have them approve the support payment amount. However, as courts are temporarily suspended, a request for a temporary change in support payments may not meet the court’s definition of an urgent matter. Similarly, the courts in this situation have stated that support payments should be maintained in full, and arrangements between both parents should be made in the event the payor parent can longer do so.

This pandemic has brought family law issues into uncharted territories. The courts are faced with making decisions without any precedents to reference, and are endeavouring to ensure the safety and maintenance of the children until normal operations resume. Therefore, it is important for separated parents to work together during these times and come to mutual agreement that is in the best interest of the children.

Articles written by Stacey Staios:

Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

Disclaimer

References

¹ Ribeiro v Wright (2020) ONSC 1829
² Ibid
³ Ibid
⁴ Government of Canada CERB Statistics; https://www.canada.ca/en/services/benefits/ei/claims-report.html

Chad Blundy

July 18, 2020

Residential Real Estate, Commercial & Corporate, Paralegal

When Are You Allowed To Evict A Tenant In Ontario?

Chad Blundy

July 18, 2020

Residential Real Estate, Commercial & Corporate, Paralegal

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

According to the Residential Tenancies Act, 2006, and the Rental Fairness Act, 2017, a landlord can evict a tenant only for certain reasons. Tenants can get evicted for doing things are not legally allowed to do in a rental unit. Some situations where a landlord can evict a tenant are:

Evicting a tenant for non-payment of rent or not paying the rent in full
When a tenant pays rent late and the rent is not paid in full by midnight of the day when it is due, the landlord does not have to accept partial payment. It is up to the landlord whether they want to accept the partial payment and how to proceed to recover the rest of the rent that is owed to them. Landlords can serve a notice that advises tenants to pay the remaining balance of the rent, or move out of the home. The notice gives the tenant 14 days to pay the rent or to move out. If the tenant takes neither of those steps, a landlord can then proceed to file an application with the Landlord and Tenant Board for an order that requires the tenant to pay the rent or evict the tenant in the case the rent has not been paid by the deadline outlined in the notice.

Evicting a tent for persistently paying the rent late
When a tenant is often late with rent payments, a landlord has the option of serving a Notice to Terminate a Tenancy at the End of Term. In most cases, 60 days’ notice is required for the termination. However, for daily and weekly tenants, 28 days’ notice must be given before the end of their lease or rental period. Alongside of serving the notice, a landlord can also apply to the Landlord and Tenant Board for eviction of the tenant, where a hearing is held to hear both sides and make a decision.

Evicting tenants for damage to unit or complex
A landlord may serve a notice of termination of tenancy if the tenant, another occupant who lives with the tenant, or a guest of the tenant willfully and negligently causes damage to the rental unit or parts of the rental unit. A notice of termination will outline the following:

Provide a termination date that is 20 days after the notice is served;
Require the tenant to repair the damaged property or pay for the costs of repair of the damaged property within 7 days after the noticed is served. If the costs of the repair of the damaged property are not reasonable, the tenant must then pay for the replacement of the damaged property

In the case that the tenant complies with the notice of termination and pays for the damages of the property within 7 days and causes no further damage to the property, then the notice of termination is void.

Evicting tenants for illegal activities
A landlord may provide a tenant with a notice of termination of tenancy if the tenant, an occupant that lives with the tenant, or a guest of the tenant carries out illegal act, business, trade or occupation and permits another person to do so in the rental unit. The notice provides 10 days for the tenant and their occupants to move out of the unit.

Evicting tenants for interfering with reasonable enjoyment
A landlord may provide a notice of termination of tenancy if the conduct of the tenant, an occupant who lives with the tenant, or a guest of the tenant interferes with the enjoyment of other occupiers in the residential complex. If the conduct interferes with another person’s lawful right, privilege or interest of the landlord of another tenant, they can be served with a notice of termination. This notice provides the tenant with 20 days to move out of the rental unit. However, in the case that the tenant or an occupant of the tenant stops the conduct or activity and causes no further issues, within 7 days of being received the notice, then the notice of termination is void.

Evicting tenants for too many persons living in the rental unit
A landlord may provide a tenant with a notice of termination if there are too many persons living in the rental unit. If the number of persons living in the rental unit exceeds the limitations of the rental unit, contravenes health and safety standards as well as housing standards required by law, then a notice of termination may be served by a landlord. This notice provides tenants with 20 days from the day they receive the notice, to move out of the unit. However, if within 7 days, the tenant removes the excess number of persons from the unit and complies with health and safety standards, or housing standards, the termination notice is void.

Evicting tenants for impairing the safety of others
When a tenant, an occupant who lives with the tenant, or a guest of the tenant carries out an activity to threatens or affects the safety of other tenants or landlord in the residential complex, a notice of termination of tenancy must be served by a landlord to a tenant. The notice provides the tenant with 10 days to leave the rental unit and end the tenancy. As soon as the landlord serves the notice, they can then proceed to file an application with the Landlord and Tenant Board to evict the tenant(s), or wait to see whether the tenant(s) move out of the rental unit by the termination date set in the notice of termination of tenancy. When it comes to safety of others, this notice does not give a chance to the tenant to rectify their behavior. Like most notices, this notice will not be void if the dangerous activities are stopped by the tenant(s).

Evicting a tenant for Landlord’s Own Use
A landlord is allowed to evict their tenant if the landlord requires the rental unit for the following reasons:

Their own use;
The use of an immediate family member. For example, children, wife, father, etc.;
And the use of a person who will provide care services to the landlord or to members of the landlord’s immediate family, who is also living in the same residential complex.

However, since September 1, 2017, a landlord has to compensate a tenant in an amount that equals to one month’s rent, OR offer the tenant another rental unit that is acceptable by the tenant, if the landlord serves a notice of termination for the uses mentioned above. Once the notice is served to the tenant, the landlord can then proceed to file an application with the Landlord and Tenant Board for an order to evict the tenant. However, when it comes to corporations or companies that own residential complexes, this section does not apply to them. Only an individual is allowed to evict tenants for their own use. Corporations are not permitted to evict tenants for the above-mentioned uses.

Evicting tenants for selling the house
A tenant can be evicted if their landlord sells the home. When it comes to a landlord’s residential property that was rented out, they can only evict the tenant if the new owner of the property will be using the unit for their own use, their immediate family members or someone will be providing care for them and their family members. However, if a landlord is selling their home and they have a tenant living in the property, they can keep the tenant IF the new owner would also be renting out the rental unit. The eviction will depend upon whether the new owners will be living in the property or whether it will be rented out. Once the landlord for eviction serves a notice, they can proceed to file an application with the Landlord and Tenant Board for an order of eviction.

Evicting tenants for demolition, conversion or repairs
A landlord may give notice of termination of tenancy if the landlord required the rental unit to carry out the following:

Demolish it;
Convert it to use for a purpose other than residential premises;
And do repairs or renovation that are so extensive that they require a building permit and vacant possession of the rental unit.

For this notice of termination, the landlord must provide the tenant with 120 days to evict the rental unit after the notice is served. A tenant may end the tenancy earlier than the 120 days provided by the notice, if they wish to. In this scenario, the landlord must compensate the tenant in an amount that equals to three months rent OR offer the tenant another rental unit acceptable by the tenant.

A landlord cannot lock a tenant out of their rental unit
A tenant has the right to stay in the rental unit until a landlord is able to get an order from the Landlord and Tenant Board for eviction. It is illegal to lock tenant(s) out of their rental units or the building. If a landlord is convicted of carrying out such activity, they can be fined up to $25,000 if the landlord is an individual, or $100,000 if the landlord is a corporation.

It is important to know your rights, and what steps to take whether you are a landlord or a tenant. If you think you need help in a situation that relates to any of the above mentioned scenarios, reach out to a legal representative and get proper guidance before you take any steps.

Articles written by Anika Helen:

What Different Kinds of Damages are there in Litigation? Section 718.1 of the Criminal Code
Common Summary Conviction Offences Impact of COVID-19 on landlords and tenants Who is a litigation guardian and what are their duties?

Disclaimer

Chad Blundy

July 16, 2020

Commercial & Corporate, Residential Real Estate, Community

An Investment Conversation with Mark Baltazar from Peak Multifamily Investments

Chad Blundy

July 16, 2020

Commercial & Corporate, Residential Real Estate, Community

Ryan Carson and Mark Baltazar from Peak Multifamily Investments had a productive conversation about multifamily and commercial real estate investments that will be very informative not only for everyone, but especially first time investors!

Some topics included are:

Advice for first time investors
The ideal property type to invest in according to Mark
How has investing in multi residential changed since COVID-19?
With working from home now being more common, how will that affect the real estate market?

Have a question for Mark or want to know more about Peak Multifamily Investments?

Mark Baltazar Peak Multifamily Investments

Instagram: @mark_baltazar Instagram: @peakmultifamily

Facebook: Mark Baltazar Facebook: Apartment Building Investors Network

Podcast: The Canadian Multifamily Investing Podcast

Chad Blundy

July 16, 2020

Commercial & Corporate, Residential Real Estate

Sale of Canadian Property by a Non-Resident

Chad Blundy

July 16, 2020

Commercial & Corporate, Residential Real Estate

Author: Warren Gilmore – Law Student
Edited By: Ryan Carson

If purchasing a property in Canada from a Non-Resident, the transaction will involve a unique set of tax concerns. It is important to have an understanding of your obligations, and to have them provided for in the Agreement of Purchase and Sale in order to avoid personal tax liability.

When a Non-Resident owner of property in Canada decides to sell, the CRA determines any yield in the value of the home that will be considered capital gains. As such, the CRA requires the Non-Resident Vendor to pay taxes on these gains. It is the responsibility of the Purchaser to perform a reasonable amount of due diligence to determine the residency classification of the Vendor. In conducting this due diligence, the Purchaser can request that the Vendor execute an “Affidavit of Residency.”

For the protection of the Purchaser, Agreements that involve these Non-Resident concerns usually include a clause that reads something to the effect of:

“The Purchaser is advised that the Vendors are Non-Residents of Canada and the Vendor's lawyer shall retain 25% of the purchase price in Trust until appropriate clearance certificates are issued by Revenue Canada. The vendor agrees to provide undertaking of such on closing.”

The Non-Resident Vendor is required to secure a clearance certificate from CRA before obtaining the entirety of the sale proceeds. This clearance certificate will outline how much of the sale proceeds are taxable, and are owed to CRA. While the clearance certificate cannot be applied for until all conditions have been fulfilled and the Agreement becomes binding, it is ideal to have this certificate in possession prior to the closing date of the transaction. This will allow all parties in advance to know exactly what taxes are owed, eliminating the need for a holdback. If this condition is not provided for and a clearance certificate is not obtained, the Purchaser will become the obligated party, and will be responsible for any taxes that CRA determines to be applicable to the transaction.

If a clearance certificate is not obtained before the closing date, the Purchaser and their lawyer should take the necessary steps to have the allotted portion of the sale proceeds remain in trust with the Vendor’s lawyer, pending a complete tax assessment from CRA.

The amount of the purchase price to be withheld is solely dependent on the nature of the subject property. If the subject property is determined to be non-capital, meaning that is was never used to produce income, and instead involved family residential use, then Section 116 of the Income Tax Act, provides that 25% of the purchase price is to be withheld. Alternatively, if the subject property is considered to be capital, and was used to produce income, the holdback allotment can increase to as much as 50% of the purchase price.

If this assessment reveals that no taxes are owed on the property, CRA will issue a clearance certificate, which permits the release of the sale proceeds that were being withheld. Conversely, if the CRA assessment revels that the transaction is indeed subject to taxes, then the amount owing will be deducted from the holdback amount. In total, this assessment period can take anywhere from 1-3 months to conclude.

Articles written by Warren Gilmore:

The Prudent Real Estate Investor’s Legal Checklist Alternative Approaches to Purchasing a Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax

Disclaimer

Chad Blundy

July 14, 2020

Intellectual Property

What Is Trademark Confusion?

Chad Blundy

July 14, 2020

Intellectual Property

Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

Trademark confusion arises when one trademark is confused with another trademark and when the use of both trademarks would likely lead to the inference that the goods and services are produced by the same company or individual. Trademark confusion can lessen the value of the original trademark because consumers could associate the original trademark with the goods and services of the second trademark, which may be subpar to the original.

In the 2006 case, Mattel U.S.A. Inc. v 3894207 Canada Inc., 2006 SCC 22, the Supreme Court of Canada, declared that trademark confusion resulted from when a customer mistakes the goods and services associated with both trademarks, are from the same brand. In the Mattel case, a Montreal based bar and grill restaurant applied to register the trademark “Barbie’s” in association with the restaurant. Mattel, a famous toy company, owns the trademark “Barbie,” which is associated with the world-famous doll. Mattel opposed the application based on confusion. The Trade-marks Opposition Board rejected Mattel’s opposition as it was not likely that “Barbie’s” bar and grill restaurant would likely be confused with Mattel’s famous Barbie doll.

The Trademarks Act, RSC 1985,c T-13 provides that trademark confusion can be decided by a set of five enumerated factors:

6(5). In determining whether trademarks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including:
(a) the inherent distinctiveness of the trademarks or trade-names and the extent to which they have become known;
(b) the length of time the trademarks or trade-names have been in use;
(c) the nature of the wares, services or business;
(d) the nature of the trade; and
(e) the degree of resemblance between the trademarks or trade-names in appearance or sound or in the ideas suggested by them.

However, it is essential when applying the test, not to stick to the five enumerated factors. Considering all surrounding factors will provide a more accurate assessment for confusion as the application of the test is fact dependent.

Articles written by Sarah Nadon:

Understanding Construction Liens Force Majeure Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike

Disclaimer

Chad Blundy

July 11, 2020

Community, Commercial & Corporate, Paralegal

What Different Kinds Of Damages Are There In Litigation?

Chad Blundy

July 11, 2020

Community, Commercial & Corporate, Paralegal

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

In any kind of litigation, a person may be entitled to damages. When it comes to damages, it usually means monetary awards. When a person is injured or in a situation where they have been wronged in one way or another, they are entitled to different kinds of damages from the court. To simply put, damages are the amount of money that is claimed by a party or is ordered to be paid to a person, including a corporation, as compensation for loss or injuries.

The main types of damages that are available to litigants

General (Non-Pecuniary) Damages
This is for damages for non-monetary losses suffered by a plaintiff. While these damages are not capable of exact quantification (e.g. pain and suffering, disfigurement, mental distress, loss of enjoyment of life, and loss of amenities), a party is still required to provide the necessary evidence upon which the court can award these damages. These damages are for past, present and future losses. Courts look at evidence that prove that a person has lost the ability to do certain things as a result of their injury or suffering.

Pecuniary Damages
These damages are also called special damages. These kinds of damages can be quantifiable in monetary loss. Pecuniary damages can result to any plaintiff in addition to non-pecuniary damages. For example, loss of income, medical expenses, cost of repairs, etc., can be categorized as such. If a person was in an accident, and they lost a limb as a result, they would be entitled to non-pecuniary as well as pecuniary damages.

Nominal Damages
Token damages awarded by the court to redress a violation of a legal right that the law deems necessary to protect even in the absence of actual harm or proof of harm or loss. Nominal damages are usually very small in amounts. Not often legal fees are covered and awards for damages are not high either. So, why would someone still file for nominal damages? It is mostly because they are usually seeking a court’s acknowledgement that their rights have been violated. These situations are usually because the plaintiff just want to establish grounds to take further legal action or they simply want to have a legal record that they were mistreated or wronged.

Compensatory (or Actual) Damages
Damages for the actual loss sustained by the plaintiff that will effectively place the plaintiff in the position that it would have occupied had the wrong not occurred or had the contract been performed. They are intended to compensate the plaintiff of a lawsuit with enough money to cover the actual amount of the injury or loss. Actual damages are awarded to replace the exact amount of loss as a result of an incident. For example, medical bills, rehabilitation expenses, physical therapy, lost wages, medical treatments, property lost or repaired, nursing home care, etc. To be entitled to actual damages, a plaintiff must be able to prove that they have suffered such losses and the monetary amount of the loss. It is the most common type of damage in litigation.

Punitive (or Exemplary) Damages
Non-compensatory damages to punish a defendant for its shockingly harsh, vindictive, reprehensible, or malicious behaviour. It is usually awarded in addition to compensatory damages. It is awarded by a judge when it is proven that the defendant willingly and intentionally inflected injury or harm on the plaintiff. Many provinces have a limit to how much can be awarded as punitive damages as the calculation can be difficult to predict.

Aggravated Damages
Damages in recognition of and to compensate a plaintiff for, suffering intangible damages such as mental distress, pain, anguish, grief, anxiety, humiliation, indignation, outrage as a result of the defendant’s actions. The damage award is intended to compensate for the aggravation of the injury by the defendant’s misbehaviour. It is not usually awarded to the defendant to please the plaintiff, but more because to make sure that there is some sort of punishment given to the defendant because of their behaviour. There are two basic requirements of punitive damages: (i) the defendant’s conduct must be reprehensible; and (ii) punitive damages must be rationally required to punish the offending party and to meet the objectives of retribution, deterrence, and denunciation.

Liquidated Damages
These are the damages agreed upon by parties entering into a contract, to be paid by a party who breached the contract to a non-breaching party. These are available in cases where damages may be hard to foresee. It must be a fair estimate of what the damages might be if there is a breach. It can be used when it is hard to prove the actual harm or loss caused by a breach. The liquidated damages should amount to the actual damages that results due to a breach. Liquidated damages are most common in construction contracts and serve as a useful risk management mechanism.

In many cases, one or more type of damages may be awarded as a result of multiple different kinds of losses and injuries. Understanding what kind of loss you have suffered is an important step before you decide to take the route of litigation. Consulting an attorney or a paralegal is advised before filing a claim, to make sure that you get the most out of what you are entitled to as a result of your loss and suffering.

Articles written by Anika Helen:

Section 718.1 of the Criminal Code Common Summary Conviction Offences Impact of COVID-19 on Landlords and Tenants Who is a Litigation Guardian and What Are Their Duties?

Disclaimer

Chad Blundy

July 9, 2020

Community

Corollary Relief

Chad Blundy

July 9, 2020

Community

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act. However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.

Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).

  
    For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.1  The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;

           (a)	To recognize the spouse’s contribution to the relationship and the economic consequences                  of the relationship for the spouse,

           (b)	To share the economic burden of child support equally,

           (c)	To assist the spouse in becoming financially independent, and 

           (d)	To relieve financial hardship.2

For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3

Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.

The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.

In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.

Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.

Articles written by Stacey Staios:

Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

Disclaimer

Chad Blundy

July 8, 2020

Residential Real Estate, Commercial & Corporate, Community

Ask A Lawyer!

Chad Blundy

July 8, 2020

Residential Real Estate, Commercial & Corporate, Community

Recently, Ryan was able to sit down (virtually) with Matt McKeever, a Real Estate Investor and Entrepreneur to answer questions that viewers, like you, had about the real estate market and incorporating a real estate business.

Check out the information packed videos below!

Canadian Real Estate Lawyer Advice For First Time Buyers

Should I Incorporate My Real Estate Business? | Ask A Real Estate Lawyer

Is Wholesaling Real Estate In Canada Legal?

If you enjoy these videos, let us know! We will continue to produce informative content to help you in any way we can.

Carson Law Office

Have a question for or want to know more about Matt Mckeever?

Instagram: http://www.instagram.com/mattmckeever85 Twitter: https://twitter.com/mattmckeever85 Business Inquires: mattmckeeverbusiness@gmail.com ►SUBSCRIBE: https://www.youtube.com/channel/UCdRtqnqBSq4GY7DGiYICu5g?sub_confirmation=1

Chad Blundy

July 7, 2020

Residential Real Estate, Commercial & Corporate

Understanding Construction Liens

Chad Blundy

July 7, 2020

Residential Real Estate, Commercial & Corporate

Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

On July 1, 2018, the Ontario Construction Lien Act changed its name to the Construction Act. This name change allowed the Act to represent a broader scope of topics. While much of the Act remained untouched, several key components were changed. These amendments now drastically change the scope of the law governing the construction industry.

There are a number of factors that come into play when determining when a construction lien expires. There are three important time frames to consider:

Preservation of lien deadline;
Perfection of lien deadline;
Two-year limitation period to set action down for trial.

Preservation

The initial step to pursuing a construction lien claim is to preserve the construction lien by registering it against the title of the land. While most liens need to be registered, there are certain circumstances where the lien needs to be served.

In order to calculate the deadline for preserving a lien, it must be determined whether the individual was a contractor or another person (ex. supplier, subcontractor). If the individual is in fact a contractor (a person who supplied directly to the owner), the lien expires 60 days after the publication of the Certificate of Substantial Performance of its contract or the date of which the contract was completed or abandoned, whichever occurs first. Previously, in the old Act, this was a 45-day period.

Perfection of a Lien

Registering a Claim for Lien, preserves the lien and temporarily extends its life. A preserved lien has 90 days to be perfected or else it will expire. The lien must be perfected 90 days from the last day on which the lien could have been preserved. The time to perfect a lien was extended from 45 days to 90 days, giving the individual 150 to register and perfect a lien.

Pursuant to subsection 36(3) of the Act, if the lien attaches to the property, the lien is perfected by issuing a Statement of Claim and by registering a Certificate of Action on title of the property. If the lien does not attach to the premises, such as Crown land or a railroad crossing, it is perfected by starting an action to enforce the lien. In some circumstances a lien may be perfected by sheltering under the perfected lien of another claimant.

The action is started when the Statement of Claim is issued in a court office in a country in which the property is located. Unlike the Rules of Civil Procedure, which requires that a Statement of Claim be served within a six-month period, a lien must be served within 90 days of the claim being issued.

Due to the new act, lien claims with a value under $25,000 will be referred to the Small Claims Court. The objective of this is to make the court process less expensive and easier for the claimants to resolve their disputes.

Two Year Limitation Period

Once a lien is perfected within the time limits set out in the Construction Act, it is important to note the two-year limitation to set the action down for trial. If the lien is not set down for trial within the two-year limitation period, a motion may be brought to declare the lien as expired and to have the action dismissed.

Articles written by Sarah Nadon:

Force Majeure Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike

Disclaimer

Chad Blundy

July 5, 2020

Community, Paralegal

Section 718.1 of the Criminal Code

Chad Blundy

July 5, 2020

Community, Paralegal

Author: Anika Helen - Paralegal Edited By: Ryan Carson

The purpose of proportionality is based on fairness and just. Proportionality is imperative when it comes to sentencing a person who has been convicted of a crime. It is important to prevent unjust punishment for crimes that can be dealt with rehabilitation or other means of help.

According to the Criminal Code, Section 718.1 states that fundamental principle that the sentence must be proportionate to gravity of offence and degree of responsibility of offender.

Proportionality is the governing principle when it comes to sentencing. The sentence should not be greater than the offender’s moral liability. This is important because it ensures that there is justice for the offender. Every case is different and has its own set of facts and specific situation that need to be considered during the sentencing process. Proposing sentence and deciding on a sentence is not easy for anyone, but it should be done with careful consideration as it can change someone’s entire life. In provincial court matters, there are many offenders that come in everyday for petty crimes and receive sentences that affect their lives to a greater extent than we think. A sentence should be fair and just so that the offender can learn from it and not have their lives destroyed by a mistake. And sometimes, that is all it is. A mistake. Sometimes, people make mistakes and pay a higher price for it than they should.

Section 718.2 states – “A court that imposes a sentence shall also take into consideration the following principles:

A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing,
- Evidence that offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or
- Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances;
A sentence should similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

It comes down to the concept of Restorative Justice. It is a recent concept in our justice system that puts emphasis on dealing with the wrong done to a person and community. The purpose of this is to shift the focus from an offender to helping and healing victims of the offender. Programs exist to repair relationships with the community. It involves the voluntarily participation of the victim, the offender and the members of the community to have discussions. The purpose is to talk, fix the damage and restore the relationships in the community to prevent further crimes from happening. The key is for the offender to accept and acknowledge responsibility for the crime committed and the harm done to the victim. Options like group conferencing, reconciliation panels, healing circles and victim-offender mediation are available these days to help the community and the people in it.

It is important to understand this section of the Criminal Code because sentencing is a huge part of the justice system. While it is imperative that offenders get proper punishments for what they have done, it is also important that sentencing should be proportionate to the level of crime committed. Sometimes, lives can be healed and changed with a bit of consideration and sympathy. New and young offenders can learn from their mistakes without having to give up on their lives.

Articles written by Anika Helen:

Common Summary Conviction Offences Impact of COVID-19 on Landlords and Tenants Who is a Litigation Guardian and What Are Their Duties?

Disclaimer

Chad Blundy

July 2, 2020

Community

Disability Accommodation in the Workplace

Chad Blundy

July 2, 2020

Community

Author: Stacey Staios - Articling Student
Edited By: Ryan Carson

  
    Employers in Ontario have a duty to accommodate employees in regards to any protected grounds covered under human rights legislation. Accommodation is a term used to describe the duties of an employer to give equal access and opportunity to individuals who are protected under the Ontario Human Rights Code. Although there are many protected grounds, disability will specifically be addressed in this article. 

Disability covers quite a broad range of conditions, which include but are not limited to, physical, mental, developmental, hearing or vision impairments and learning disabilities. These may be visible or invisible and may have been present from birth, caused by an accident or developed over time.1 

According to the Government of Ontario, roughly 15.5% of Ontario’s population has a disability.2  The Accessibility for Ontarians with Disabilities Act (AODA) was introduced in 2005 to improve accessibility standards for Ontarians with physical and mental disabilities while making accessibility a regular part of finding, hiring and supporting employees with disabilities. The AODA is made up of five standards, and includes requirements that organizations must meet, which are specific to the organization’s type and size. These five standards include information and communications, employment, transportation, design of public spaces and customer service.3  These standards require organizations to create and implement policies and practices that identify and remove barriers that people with disabilities may face, specifically in the workplace. 

Employers have a duty to accommodate the needs of individuals with disabilities to the point of undue hardship to ensure that an employee has equal access to any opportunities and benefits available. This duty to accommodate places puts onus on the employer to remove any barriers an employee may face when trying to access such opportunities and benefits. This standard requires an employer to take every measure to provide the accommodation without causing undue hardship to the business. Otherwise, the employer must demonstrate that they are unable to reasonably accommodate the employee without causing such undue hardship, which means they must provide an employee with the requested accommodation unless it would cause serious hardship to the company. The Ontario Human Rights Code sets out three considerations when assessing whether an accommodation would cause undue hardship, which include cost, outside sources of funding and health and safety requirements.4  No other consideration may be considered when assessing undue hardship, such as business inconvenience, employee morale or third-party preference.5 

  For example, if an employee requests an accessible washroom, it is not enough for the employer to claim undue hardship just because it will add additional costs. For an employer to claim undue hardship in this case, they would have to prove that providing the accommodation would be so extreme that it would interfere with the operations of the business. In certain cases, providing an accommodation will not add any additional costs. Often, the accommodation only requires policy changes and flexible rules, which may cause an inconvenience but will not be a factor in considering undue hardship. 

By removing the barriers that individuals with disabilities face in the workforce, the AODA intends to maximize both the inclusivity of our society and the value that each employee contributes to the economy. An inclusive workplace is one where everyone is treated with respect and becomes a place of equal opportunity.

Articles written by Stacey Staios:

Estate Planning: A How to Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?

Disclaimer

References

¹ Accessibility for Ontarians with Disabilities Act 2005
² Government of Ontario Handbook for Accessible Employment
³ Accessibility for Ontarians with Disabilities Act 2005
⁴ Ontario Human Rights Commission
⁵ Ontario Human Rights Commission

Chad Blundy

June 30, 2020

Intellectual Property

Force Majeure

Chad Blundy

June 30, 2020

Intellectual Property

Author: Sarah Nadon – Law Student Edited By: Ryan Carson

On March 11, 2020, the World Health Organization deemed the outbreak of Covid-19, or more commonly known as the coronavirus, a global pandemic. Many provinces entered into a state of emergency, office buildings closed, and many people were forced to work from home. Covid-19 began disrupting everything from travel to business operations.

Force majeure is a standard clause in contracts that allows both parties to be freed from liability or obligation when circumstances arise that are beyond the control of either party. These events can include war, pandemics, or an event described by the legal term act of God.

  
    A well-expressed definition of a force majeure is found in the Supreme Court of Canada decision of Atlantic Paper Stock Ltd. v St. Anne-Nackawic:

“An Act of God clause or a force majeure clause … generally operates to discharge a contracting party when supervening, sometimes supernatural, event, beyond control of either party, makes performance impossible. The common thread is that of the unexpected something beyond reasonable human foresight and skill”.1

  
    During the current Covid-19 pandemic, many people are unable to meet and perform their obligations. Does this automatically mean that the doctrine of force majeure excuses all obligations?

The short answer is no. In order for one’s obligations and duties to be excused by force majeure, the contract of the individual must have an applicable force majeure clause. Even if a force majeure clause is present, most are drafted broadly so that parties have to argue what events fall under the clause. Contrary, some clauses provide a long list of events that fall under force majeure. Many clauses indicate “acts of God” however, there is very little case law that supports what an act of God is.

The first question that needs to be asked is whether the force majeure event directly impacted the individual’s ability to perform their obligation and duties. A well-drafted force majeure clause should include a requirement that the party invoking the clause provide written notice of the force majeure to the other parties included in the contract. If the force majeure clause is relied upon, the party claiming force majeure will be required by the contract to give notice that the clause is being invoked as soon as they become aware that they plan to rely upon that clause. If for any reason, there is no specific notice period, they must provide notice that is reasonable.

  
    The careful drafting of a force majeure clause will note what type of contract it is placed in and will help minimize potential litigation. A Force Majeure  clause is put in contracts to protect parties from events that do not typically occur during everyday life; therefore, when drafting a force majeure, it should address three specific questions:

          •	How broad should be the definition of triggering events;

          •	What impact must those events have on the party who invokes the clause; and 

          •	What effect should invocation have on the contractual obligation? 2

Again, when drafting the clause, many lawyers opt to use broad lists while others rely on all-inclusive and descriptive events. The force majeure clause is more than a boilerplate as it helps protect parties to a contract and avoids putting parties at risk of having a court interpret a contract. Even if a contract does not have a force majeure clause, there are still circumstances where the principle of frustration may apply.

Articles written by Sarah Nadon:

Determining Which Business Venture is Right for You! Kawhi Leonard Loses Copyright Lawsuit against Nike

Disclaimer

References

¹ Atlantic Paper Stock Ltd v St Anne-Nackawic Pulp and Paper Co, [1976] 1 SCR 580, [1976] 1 RCS 580
² Atcor Ltd v Continental Energy Marketing Ltd, [1996] AJ No 131, [1996] 6 WWR 274, 38 Alta LR (3d) 229, 178 AR 372, 25 BLR (2d) 1, 61 ACWS (3d) 75

Chad Blundy

June 27, 2020

Residential Real Estate, Commercial & Corporate

The Prudent Real Estate Investor’s Legal Checklist

Chad Blundy

June 27, 2020

Residential Real Estate, Commercial & Corporate

Author: Warren Gilmore – Law Student Edited By: Ryan Carson

Real estate investing has long been a lucrative business practice. Whether you are new to the business, or already have multiple properties, it is important to make sure that you have the necessary legal safe guards in place. In order to best protect yourself and your business, there are many important legal steps that the prudent real estate investor should investigate and consider implementing into their business operations.

Incorporation

Incorporating your business requires transitioning your sole proprietorship in the business into a company that is recognized formally as a corporation. When a company incorporates the business becomes its own legal entity, separate from the individuals that that make up its ownership. Incorporating also helps to protect the personal assets of the individual business owners in the instance that judgements or other enforceable debts are registered against the company.

In Ontario, incorporations are governed by the Business Corporations Act, 1990. This act requires that all shareholders within the corporation are to be registered as such. Shareholders are those individuals who make up ownership of the company. When the corporation is created, a specific number of shares must be established and issued proportionately to the individual shareholders. The act further requires that a corporation must have at least 1 shareholder, but no more than 50.

All of these advantages of incorporating apply to the practice of real estate investing. Considering the value of real estate, once your operation reaches a certain size it makes a tremendous amount of sense to protect yourself and your partners by incorporating.

JV Agreements

A Joint Venture Agreement works to join together two or more parties, either individuals or corporations, who desire to enter into a limited business arrangement or a single project. The most common example of this arrangement we see in the real estate world involves parties coming together to combine their resources in order to invest in property. For example, Party A and Party B come together in order to purchase a multi-unit rental property. All parties to such an arrangement agree to pool together their resources and to share in the overall performance of the project, including any profits and losses.

Joint Venture Agreements are intended to clearly outline the responsibilities and expectations of the parties as they pertain to the current project. The agreement should further outline the specifics of the project itself, the contributions, both operational and financial, and the specific obligations of each party.

If you find yourself investing with other individuals, or even other companies on individual projects, a Joint Venture Agreement should be considered. An experienced lawyer can help to ensure that all your concerns are clearly and effectively addressed in order to best protect your interest in a given project.

The Transactional Process

If your business operations involve multiple purchases and sales of properties, having an experienced real estate lawyer that you know and trust is another essential tool to have in your company toolbox.

When purchasing or selling a property, a real estate lawyer will help to represent your interests in the particular transaction. They will communicate directly with the lawyer representing the other party to the transaction. They will work to resolve any issues that might arise between the parties before, during, and after the transaction has closed. This might involve the fulfillment of particular conditions to the agreements, or any breaches to the agreement that may arise.

Additionally, a real estate lawyer will help you to navigate many potential speed bumps that often present themselves when purchasing real property. A real estate lawyer will work to discover any potential title issues that might exist on a prospective property and take the necessary steps to resolve them.

Further, depending on the nature of the investment property itself a real estate lawyer can help you put into place other legal safeguards for your investment. For example, if investing in a rental property, a real estate lawyer will not only be able to assist you with the closing of the transaction, but also to put in place the necessary rental agreements with tenants renting the property.

Whatever the particulars of any given real estate investment, it is essential to have an experienced real estate lawyer in your corner.

In summary, the nature of investing in real estate requires a significant degree of due diligence, as large sums of money are involved. The legal components mentioned here are all essential aspects of the overall process of ensuring that your business maintains an optimal level of legal protection.

Articles written by Warren Gilmore:

Alternative Approaches to Purchasing a Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax

Disclaimer

Chad Blundy

June 25, 2020

Community, Paralegal

Common Summary Conviction Offences

Chad Blundy

June 25, 2020

Community, Paralegal

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

“Summary” means in a quick and simple manner. Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fees. The penalty for these offences is found in s.787(1) of the Criminal Code, which provides a maximum punishment of a $5,000 fine or a term of imprisonment of not more than two years less a day or both.

It is extremely important to read the Code in detail for each offence. For every offence, the Code has listed what the Crown has to prove beyond a reasonable doubt. As with all offences, the Crown must prove both actus reus and mens rea of the offence beyond a reasonable doubt. That is, the act or the omission of the offence must be proven as well as the criminal intent. The accused must have had the mental capacity and the intent to commit the offence. The offence cannot have been the result of an accident. Therefore, the usual defence in criminal cases is a lack of intent. However, the intent may be satisfied by the intent to commit the act rather than by the intent to do something wrong.

What are the most common types of summary conviction offences?

Causing a Disturbance – conduct that disturbs public peace and order in or near a public place is an offence according to the Code. The conduct may be fighting, shouting, singing, using insulting or obscene language, loitering, being drunk, discharging firearms, or impending harassing or molesting other persons. To make out a case, the Crown must prove that the accused was not in a dwelling home and was engaging in one of the listed acts. The Crown also must prove that the accused was in or near a public place and someone was actually disturbed by the acts listed.

Trespassing at Night – Loitering or “prowling” on another person’s property without permission and without an excuse. Loitering means wandering with no precise definition and prowling includes a notion of evil. A prowler does not act causally, but with a purpose. In this case, the Crown does not need to prove that the accused intended to commit a specific evil act, but only that the accused person was loitering and prowling intentionally on another person’s property without an excuse. This offence is charged along with another offence, such as theft under $5,000 or possession of a break-in instrument. For example, a person might be charged with trespassing at night when the person entered a vehicle in a driveway to steal property from the vehicle.

Taking a Motor Vehicle Without Consent – “Joy riding” is the common term for this offence. This requires that the motor vehicle be taken without the owner’s consent. A person can be charged with this offence even if they are just a passenger in the vehicle that has been taken without consent. Possessing a stolen vehicle is an offence regardless of whether a person stole it or not. It is assumed that if a person has possession of a stolen vehicle, that it is the person themselves who stole the vehicle. The only defence available in a scenario where someone has possession of a stolen vehicle is that they had no idea that the vehicle was stolen.

Fraudulently obtaining food, beverage or accommodation – s. 364(1) of the Code states that every one who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction. A common example of this is, not paying a restaurant bill. For this offence, the Crown must prove that the person intended not to pay for food, beverage or accommodation stolen.

Transportation Fraud – it is a criminal offence to obtain transportation in a fraudulent way. This means that any free or discounted ride obtained by intentional deceit or falsehood can lead to these charges. This offence carries a penalty of up to six months in jail and a criminal record. An example of this offence includes not paying for public transportation, such as TTC or Go Transit. However, the fraud must be intentional. A mistake can be forgiven by the court unless the person intended not to pay.

Attempts and Accessories After the Fact, Summary Conviction – anyone who attempts to commit a summary conviction offence or is an accessory after the fact to such an offence is also guilty of a summary conviction offence. An accessory after the fact is defined in s.23(1) as one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling them to escape. A common example of this would be helping someone to hide to get away after they have robbed a bank or stolen a vehicle.

When charged with a summary conviction offence, it is best to reach out to a criminal lawyer or a paralegal who has experience in the field. Every situation has different circumstances. It is ideal to get help from someone who is experienced rather than defending one’s self alone. Sometimes, a mistake or an unfortunate situation can lead to these charges where there was no intent. A legal representative would be able to defend a person in those circumstances, so that the person’s record does not get tainted because of a mistake or an act they did not commit.

Articles written by Anika Helen:

Impact of COVID-19 on landlords and tenants Who is a litigation guardian and what are their duties?

Disclaimer

Chad Blundy

June 23, 2020

Residential Real Estate, Commercial & Corporate

Non-Resident Speculation Tax

Chad Blundy

June 23, 2020

Residential Real Estate, Commercial & Corporate

Author: Warren Gilmore – Law Student
Edited By: Ryan Carson

In 2017, the province of Ontario implemented a specific tax on foreign real estate buyers, the Non-Resident Speculation Tax. The tax works to impose greater financial burdens on foreign real estate purchasers, providing for a tax rate of 15% in addition to the purchase price of residential property. The tax applies specifically to residential properties located in the Golden Horseshoe area, effective as of April 21, 2017. Agreements of Purchase and Sale that were signed prior to this date, and that were not assigned to another party after this date, are not subject to the Non-Resident Speculation Tax.

The tax is intended to deter foreign buyers from purchasing residential property in an effort to moderate the skyrocketing housing market in the Golden Horseshoe area. Foreign investors have long found the housing market in these areas of Ontario to be a safe and attractive place to invest their foreign dollars. This practice has caused the value of homes in these areas to inflate, somewhat artificially. As a result, residential property in these areas are often out of reach for the everyday local residents of these communities. The Non-Resident Speculation Tax helps to relevel the playing field, and works to moderate residential real estate prices, making them more affordable for local residents.

The Non-Resident Speculation Tax is applied to foreign buyers, any individuals who are neither Canadian Citizens, nor Permanent Residents. The tax is also applicable to foreign corporations, those with corporate nerve centers outside of Canada.

Taxable trustees are also subject to the Non-Resident Speculation Tax. This typically includes trusts which have one or more trustees considered to be a foreign entity, or if the direct beneficiary of a trust is an individual considered to be a foreign entity.

However, purchasers who have been subject to this tax may be entitled to a rebate in the instance that they meet particular exempting conditions provided for in the legislation. These exemptions include:

If the buyer within 4 years of the real estate purchase closing date, becomes a Canadian Citizen or a Permanent Resident.
If the buyer is also a full-time student at an educational institution, at a campus located in Ontario for at least 2 years.
If the buyer has been legally employed in Canada for a least 1 year.

Individuals applying for one of these exceptions are also required to abide by the following conditions:

The buyer must hold title to the subject property either exclusively, or exclusively between themselves and a spouse.
The buyer is required to occupy the subject property as their primary resident for a minimum of 60 days beyond the closing date of the transaction.
The buyer must submit their application for an exception rebate no longer than 4 years after the closing date of the transaction.

The Non-Resident Speculation Tax may even have an effect on Canadian citizens in certain respects. If residential real estate is purchased through a partnership, where one of the partners is considered a foreign entity, the entire purchase will still be subject to the 15% tax. The tax is not imposed proportionality to the particular interest held by the foreign entity. In other words, if any member of a partnership is without an exemption to the tax, the tax will be fully applicable to the entire transaction.

Should you find yourself in a situation where the prospective purchase of residential property may be subject to the Non-Resident Speculation Tax, it is imperative that you meet with a lawyer to determine your potential eligibility for any of these exemptions. At Carson Law we can help you navigate these concerns, in part of an overall plan to best protect your interests.

Disclaimer

Chad Blundy

June 18, 2020

Commercial & Corporate, Intellectual Property, Residential Real Estate, Community

Determining Which Business Venture is Right for You!

Chad Blundy

June 18, 2020

Commercial & Corporate, Intellectual Property, Residential Real Estate, Community

Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

Partnership agreements may arise informally through the shake of a hand; however, rarely is that the best course to follow when creating a partnership. Partnerships are very much like sole proprietorships however they involve two or more people.

Most partnerships, either big or small, operate subject to an agreement among the partners that lays out specific rights and obligations of every party, as well as provisions for running the company, both day to day and in the event that someone dies, or the partnership is dissolved. This article will examine the pros and cons of joint ventures and shareholders agreements as well as common mistakes that occur when entering into a business venture.

  
    Shareholders agreement

A shareholder’s agreement is an agreement between the shareholders of an existing corporation. The agreement is used to assure that owners’ rights are protected. Shareholders agreements are very fact specific and are tailored to the unique circumstances of the parties.1 

This type of agreement typically deals with two basic areas:

      •	Control and management of the corporation; and

      •	Termination of the relationship of the shareholder, whether by transfer of the shares to third          parties, a buy-out of the shares by a different shareholder or by liquidation of the corporation.2 

In a  shareholder’s agreement each party is responsible for the actions of the other shareholders. Shareholders share risk, costs and profits with one another.

  
    Joint Venture

A joint venture involves two or more businesses or individuals combining their resources and expertise to achieve a shared goal. Joint ventures are usually undertaken by previously established businesses. Joint ventures are relatively new meaning unlike corporations, they are the least regulated. Much like partnerships, joint ventures do involve a fiduciary duty.3

Joint ventures are typically created by express agreement, which will define the rights, obligations and prospective liability of each participant in the joint venture.4  Unlike a shareholder’s agreement, each party is responsible for the debts they acquire but split the profits according to the agreement. 

The main difference between a joint venture and a shareholder agreement is whether the agreement is between one company or several, as a shareholder’s agreement cannot be created with several different companies.

  
    How to decide between a joint venture and a corporation

Corporations are another form of a business entity structure made available to the public. A corporation is when a company’s owners operate as a single business entity and is formed by filing articles of incorporation, while a joint venture is a partnership between two or more businesses that want to work together towards a common goal.5  A corporation has a separate legal entity from its shareholders meaning it has the same rights as an individual. In Canada, corporations have all the legal rights of a person therefore they are eligible for loans, can carry on business, sue or be sued. Corporations offer limited liability and is one of the most common business structures in Canada. 

Since joint ventures have no statute to govern them, they are strictly governed by the contract made between the parties. Joint ventures allow flexibility for the parties and are not considered to be a taxpayer under Canadian tax legislation while corporations are taxed by both the Ontario and federal income taxes.6

When choosing a business entity, one should consider the legal liability, the tax implications, the cost of formation, the ongoing administration and the flexibility they desire. In addition, how the entity is governed may also be an important consideration.

What kind of questions should be answered before talking to a lawyer?

Before speaking to a lawyer, one will want to have an idea of which type of agreement they would like drafted. Next, they should know who the parties to the agreement will be, when the agreement will end, if ever. The parties to the agreement should also know what the objective of the agreement is in order to help the lawyer draft a proper contract.

What to include in an agreement?

Shareholders agreement:

The right to remove directors
Terms to protect minority share holders
Restrictions on how and when someone can dispose of their shares
Limitations on what actions a director can take
A business plan to assure that all shareholders are on the same page
How to resolve a shareholder dispute
The right to first refusal clause

Joint Venture:

Type of joint venture
Benefits and risks
Financial contribution each party will make
Objective of the joint venture
Ownership of the intellectual property created by the joint venture
How liabilities, profits and losses are shared

Common mistakes

If in a limited partnership, limited partners are not allowed to take an active role in management of the partnership, as it exposes the limited partners to the same level of liability as the general partner
Not choosing the right business entity
Starting a venture without a business entity
Not filing the proper documentation for the business entity
Excluding important clauses from the business contract
Inadequate capitalization
Ignoring intellectual property and getting sued for infringement
Objectives of a joint venture are not 100% clear and communicated with everyone

Disclaimer

References

¹ The Editorial Staff of LexisNexis Canada in co-operation with The Institute of Chartered Secretaries and Administrators in Canada, Canadian Corporate Secretary’s Guide (LexisNexis Canada, 2003) (loose-leaf updated 2020), (QL)
² Ibid.
³ Meinhard v. Salmon, 62 A.L.R. 1 at 4-5 (N.Y.C.A., 1928)
⁴ Chitel v. Bank of Montreal, [2002] O.J. No. 2170 (Ont. S.C.J.
⁵ Canada Business Corporations Act, RSC 1985, c C-44, Part II.
⁶ Neil Hazan, “Joint Ventures in Canada: Overview” Joint Ventures Law Global Guide, August 1 2017.

Chad Blundy

June 16, 2020

Community, Paralegal

Who is a Litigation Guardian and What Are Their Duties?

Chad Blundy

June 16, 2020

Community, Paralegal

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

Litigation is a process that may not be known to many people. It is tiring, complicated and time consuming, and not to mention, it takes money to go into litigation. It can be especially difficult when a claim involves a party with minors and the disabled. There are three types of parties under disability according to r.1.02(1) of the Rules of Small Claims Court.

  
Persons under the age of 18 years old are considered to be minors.
 
Mentally incapable in respect of an issue in the action, whether the person or party has a guardian      or not; The term mentally incapable is defined within the meaning of s. 6 (incapacity to manage     property) or s.45 (incapacity for personal care) of the Substitute Decisions Act, 1992.

An Absentee: The term absentee is defined in s. 1 of the Absentees Act as a person who, having     had his or her usual place of residence in Ontario, has disappeared, whose whereabouts is     unknown, and as to whom there is no knowledge as to whether he or she is alive or dead.

Rule 4 of the rules governs claims by or against a person under disability shall be commenced or continued by a Litigation Guardian (r. 4.01(1)). Though a minor can begin an action not exceeding the amount of $500, an action against a person under disability must be defended by the defendant’s litigation guardian, according to r.4.02(1)).

So, what is a litigation guardian? A litigation guardian is an officer of the court who represents the person under disability in a limited sense. A litigation guardian is not a party to the action and is not master of the suit. There are several duties of a litigation guardian.

A litigation guardian must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests. A litigation guardian is allowed to do anything in a proceeding that the party would usually be required or authorized to do so. If a litigation guardian consents to any departure from ordinary course of practice, they must need approval of the court.

Any money payable to a person under disability as a result of an order or settlement must be paid into court, unless a Judge states otherwise. The litigation guardian is not entitled to receive any compensation, and is liable to account for any money they receive. A litigation guardian can have no interest in the party’s cause of action or the outcomes of the action.

A litigation guardian is required to not only protect the person under disability and their interests but also protect other parties and the court. They are required to be competent so that they are able to take steps in the proceedings, instruct the legal representative, responsible for costs, and to ensure that judgments are respected and performed. A litigation guardian is also expected to protect the court though efforts to prevent an abuse of the court’s process by or against a person under disability.

Issues related to disability and the need for a litigation guardian arise commonly when minors sue as plaintiffs in proceedings. The most common cause of action is usually personal injury cases. In situations like these, the parents or other relatives of the minor tends to act as the litigation guardian. However, there are times when there could be conflict of interest; where the parents or the relatives are involved in the incident that caused the claim to begin with. For example, in a car collision where a child was injured and a parent was driving the car. The child can sue the other driver as well as their own parent who was driving the car for negligence. In this case, the parent who was driving the car would not be allowed to act as a litigation guardian. A paralegal or a lawyer would also not be allowed to represent both parents and the child unless a waiver is signed by both the parents as well as the child that they want the same legal representative. And often times, that is not the case.

To act as a litigation guardian in an action, a person must consent to it. This can be done by filling out Form 4A of the Small Claims Court. Who may be a litigation guardian? Generally, any person who is not under disability may act as litigation guardian, subject to r.4.03(2) and r. 4.03(1). In some unfortunate cases when there are no available persons to act as a litigation guardian for a child, a Children’s Lawyer shall be the litigation guardian.

When a minor or disabled is being sued and they have no litigation guardian, the court may, after notifying the proposed guardian, appoint as litigation guardian any person who has no interest in the action contrary to that of the defendant. If an action has been brought against a defendant under disability and has not been defended by a litigation guardian, the court may set aside the noting of default judgment against the defendant on such terms that are just and fair and also set aside any step taken to enforce the judgment.

It is important to find the right litigation guardian that has the best interest in mind for the child. Failure to appoint a litigation guardian is an irregularity but it does not invalidate a proceeding. This can be fixed by appointing one. If an action has been commenced and it appears that there is no litigation guardian for a minor in the action, then the action should not proceed further until one has been appointed.

Where an action is commenced without a litigation guardian, the paralegal or the lawyer commencing the action may be personally liable to pay the defendant’s costs even if the legal representative was unaware of the legal disability of the plaintiff. However, legal representatives who acted with a bona fide belief and were not negligent are not awarded costs by the court.

  
    Removal of Litigation Guardian
 
There are three scenarios where a litigation guardian may be removed from an action:
 
1.	When a minor reaches the age of majority. In other words, when the child turns 18 years of age.
2.	When a party is no longer under disability. For example, someone sick gets better and are able to     make their own educated decisions.

3.	And finally, when a court determines that the litigation guardian is not acting in the best interest     of the child/disabled. For example, there can be a conflict of interest. In this scenario, the court     can appoint a Public Guardian and Trustee or a Children’s Lawyer.

Litigation can be confusing and it can be hard to understand the rules and regulations of a proceeding. It’s always helpful to consult a legal representative so that anyone commencing an action can be fully informed about what their options are and the next steps. When it comes to minors and the disabled, it is even more important to make the right decision to make sure they are protected and represented the way they deserve.

Chad Blundy

June 14, 2020

Intellectual Property

Kawhi Leonard Loses Copyright Lawsuit against Nike

Chad Blundy

June 14, 2020

Intellectual Property

Author: Sarah Nadon – Law Student
Edited By: Ryan Carson

  
    When many see the “Klaw” logo, they associate it with the former Raptors all-star, Kawhi Leonard. The logo was created by Nike Corp based on a sketch drawn by Kawhi Leonard when he was in school, but just because many people associate the logo with Leonard does not mean that he is its rightful owner. According to a recent ruling by a United-States federal judge, the logo created does not belong to him; it belongs to Nike.1 
  

  
    Last summer, there was a widely reported feud between Nike, the largest sports apparel company and Kawhi Leonard over the ownership of the “Klaw” logo. The logo is of Leonard’s large hand, which inside contains his initials “KL” and the number 2, which he had worn on his jersey for much of his basketball career.2 Leonard was adamant that he had the idea to create a logo which incorporated his initials and the number "2" into a drawing of his hand and before entering the Nike Contract, he created the "Leonard Sketch" as a draft of that idea. Over the course of the next few years, Nike developed variations of the logo, while Leonard states that he had the final say over the logo's final appearance.

In 2018 when the endorsement deal ended, Nike and Leonard parted ways, and Leonard demanded a court to declare that he is the sole owner of the logo and that Nike fraudulently registered the logo with the United-States Copyright Office in Washington D.C.3  While Leonard was filing his lawsuit, Nike disputed Leonard’s story and sued him for copyright infringement, breach of contract and fraud.

Litigation originally began in Southern California but moved to the U.S. District Court for the District of Oregon, giving Nike a home-court advantage.  Judge Michael Mosman presided over the case.4  On April 22, 2020, Mosman J. heard Nike’s Motion for Judgement.  Mosman J. stated that ownership over the “Klaw” design turns on the Nike contract entered into by Leonard. Paragraph 8 of the contract states:

           OWNERSHIP OF NIKE MARKS, DESIGNS & CREATIVES.

           (a) [Leonard] acknowledges that NIKE exclusively owns all rights, title and interest in and to            the NIKE Marks and that NIKE shall exclusively own all rights, title and interest in and to            any logos, trademarks, service marks, characters, personas, copyrights, shoe or other product            designs, patents, trade secrets or other forms of intellectual property created by NIKE . . . or            [Leonard] in connection with this Contract;5

The judge held that the Nike contract established Nike’s ownership of the logo because the “klaw” logo was (1) a new piece of intellectual property and (2) created “in connection” with the Nike contract.

While throughout the case, Nike asserted that this was a tale of two images, Leonard consistently refers to the “Leonard Logo.”6  This is because Leonard’s theory is that no new intellectual property was created over the course of the Nike contract; instead, the “Klaw” logo is the finished result of mere modifications to the logo Leonard has created independently of Nike. The judge rejected that theory during oral arguments.  

Next, the judge analyzed whether the “Klaw” design was created “in connection with” the Nike contract. If the logo was created in connection with the contract, Nike owns it. Leonard’s argument was that the contractual language “in connection with” is ambiguous and unconvincing.7  The purpose of the Nike contract was to pay Leonard for “the use of [Leonard]’s personal services and expertise in the sport of professional basketball and [Leonard]’s endorsement of the Nike brand and use of Nike products.”8  According to Leonard, at some point during the contract, Nike wanted to create a logo for the merchandise to be sold under Leonard’s Nike contract. The “Klaw” logo was created and affixed to merchandise that Leonard wore and endorsed and Nike sold.9  Not only was this activity done in connection with the Nike contract, but it also represented the entire point of the Nike contract. Since the logo was created under the Nike contract for the purpose of endorsing both Nike and Leonard, Nike owns the design and the right to register a copyright for it.

Furthermore, the judge granted in part and denied in part Nike’s counterclaims, which included a declaratory judgement of copyright ownership, copyright infringement, copyright right cancellation for fraud on the copyright office, breach of contract paragraph 8, breach of contract paragraph 13 and breach of contract paragraph 21.10  The judge granted breach of contract under paragraph 21 as the contract states that any dispute arising under the contract should be litigated in an Oregon court. Leonard filed his action in the Southern District of California.

Nike was granted copyright ownership and, in part, breach of contract but denied judgement on other counterclaims.

Leonard’s lawyers are currently weighing their options on what to do next.

Disclaimer

References

¹ Sports Illustrated, News Release, “Kawhi Leonard Loses Copyright Lawsuit Against Nike Over Logo (April 23, 2020) https://www.si.com/nba/2020/04/23/kawhi-leonard-loses-lawsuit-against-nike.
² Ibid.
³Ibid.
⁴ Ibid.
⁵Nike Contract [16-1] at 7.
⁶Kawhi Leonard v Nike Inc., ( D. Or. 2020)
⁷Ibid.
⁸ Ibid.
⁹Ibid.
¹⁰Ibid. .

Chad Blundy

June 11, 2020

Residential Real Estate, Commercial & Corporate, Paralegal

Impact of COVID-19 on Landlords and Tenants

Chad Blundy

June 11, 2020

Residential Real Estate, Commercial & Corporate, Paralegal

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

What has changed for landlords and their tenants in the midst of Covid-19?

The Covid-19 crisis had a significant impact on our economy and still continuing to do so. The government had previously decided to close all non-essential businesses to stop the spread of the virus. It has left a significant amount of people with no jobs. According to IPSOS, one in three (36%) Canadians say they have been laid off, on reduced hours/pay (13%), or have shuttered their small businesses (5%). In addition, three in ten (31%) Canadians have less than a week savings to pay for bills if no income is coming in. As a result, many are struggling to make rent payments on time or in many cases, are not able to pay rent at all.

Though there is hope that we will be able to return to normal very quickly after things start to re-open, there will be people who will not be able to get their jobs back right away. Even though, the economy will recover fairly quick, not everyone will be able to get back on their feet instantly. The government have implemented certain changes that is supposed to somewhat help tenants and landlords until the pandemic is over.

Changes to the Eviction Process

Tribunals in Ontario have suspended all eviction-related activity. No renter households are currently at imminent risk of eviction for non-payment of rent. However, while evictions are stopped for now, the current expectation is that tenants will eventually have to get caught up on rent. A landlord is free to give written notice to their tenant; however, the tenant does not have to move out. Property owners are not permitted to lock-out tenants on their own. Only the law enforcement is permitted to do so. Tenants are encouraged to contact the Province’s Rental Housing Enforcement Unit in case their landlords have locked them out of their rental units. The government urges people to pay rent if they are able to. People who were not laid-off or still have the ability to earn, should be paying their rent. Tenants are not encouraged to not pay rent. If you are able to, you should be paying your rent without undue hardship.

Possible Solutions for Landlord

Because Tribunals in Ontario are not allowing landlords to evict their tenants anymore, there is not much a landlord can do at this point. Unfortunately, landlords have to be patient and understanding. While we are all aware that landlords are facing financial hardship as well due to mortgage payments, certain financial institutions are offering mortgage deferrals up to a certain point during this pandemic. Landlords are encouraged to get in touch with their financial institution to seek any help available to them.

As for dealing with tenants not being able to pay rent, landlords should have a discussion with their tenants and agree to reduce rents or defer payments where possible. As mentioned above, tenants are not going to be allowed to not pay rent and not make up for those non-payments. Landlords should get into agreements with their existing tenants that allow tenants to pay back their rent arrears in small increments within a defined period of time. For example, if a tenant arrears in the amount of $5,000, the landlord and tenant can agree that when the tenant starts paying rent again, they can pay extra $300-400 a month on top their rent until the $5,000 have been recouped by the landlord. Tenants might not agree to a specified amount but landlords and tenants should come to an agreement together with an amount that works best for both parties.

Unfortunately, tenants are not always able to keep their side of a promise. If a tenant stops paying their incremental amount, they are breaching the repayment agreement. At that point, the landlord can and is permitted to file an application with the Landlord and Tenant Board to obtain an order for eviction. The application can also include the repayment of arrears. If a tenant does not leave after an order has been obtained, a landlord can have a sheriff remove the tenant from the rental unit. If the tenant fails to pay the repayment of arrears, the landlord must enforce the order with the help with small claims court.

Entering a Rental Unit and Physical Distancing

Before the pandemic, a landlord was permitted to only enter a tenant’s unit in specific circumstances. In most cases, the landlord must:

Give the tenant 24 hours written notice
State what day and time they will enter (between the hours of 8 a.m. and 8 p.m.)
State the reason for entering the unit

There are certain special circumstances such as emergencies where the landlord can enter the unit without notice and the tenant cannot refuse to let the landlord in. Due to Covid-19, landlords are encouraged to request entry only in urgent situations and strictly follow the physical distancing guidelines.

In conclusion, both tenants and landlords are facing unusual circumstances in the midst of this pandemic. However, the above-mentioned changes will aid tenants and landlords with their specific situations. If a tenant or a landlord is facing such hardships, they should seek legal consultation or help to guide them in the right way. There are free legal clinics available to tenants as well as landlords. Seeking help and getting the correct information in this situation is the first step to recovering from this crisis.

Disclaimer

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