LITIGATION
GOING TO COURT
Customers don’t pay, suppliers fail to deliver, loans are not paid, products are defective, contacts are broken, people lie, deceive, mislead, trusts are violated, negligence occurs, people are wrongfully fired from their employment, reputations are defamed and sullied, property is taken or not returned, disputes arise between shareholders, partners, heirs, executors, and otherwise events transpire which puts your life and your interests in conflict with others. When a dispute cannot resolve be resolved directly you are usually faced with three choices.
1. DO NOTHING - and if you do nothing for a long enough time, and its usually 2 years from the time the claim arose, your right to sue may be lost. There are exceptions to this short limitation period, which may involve a breach of trust, ongoing negotiations or if the person against whom you will be claiming, hid the circumstances from you upon which your claim may be made. There are also other exceptions which may extend the limitation period. There are also other circumstances, usually involving claims against governmental agencies, or public bodies where the limitation period may be very short. When in doubt, call a lawyer. Do it soon and find out how much time you have to do nothing before doing nothing becomes your only option.
2. SELF HELP which may but should not involve the use of force. Use of force will likely result in a urgent telephone call to a member of the criminal bar and someone to post bail. Self help is also frought with risks associated with the very real likelihood that you will not follow the legal requirements in the pursuit of your remedy, which may give rise to civil and possible criminal claims against you which otherwise could have been avoided.
3. GO TO COURT.
It is that third alternative that is encompassed by the term, litigation.
The parties, whether they are the plaintiffs, who bring the action, or the defendants who are responding to the action are looking to the judge, who after hearing the evidence, the arguments of counsel and after consideration of the law, makes a decision as to who proved their case, who was right, who was wrong and resulting consequences of these determinations. These consequences may consist of any of, an award of damages, a declaration, an injunction restraining or directing that something be done by one or more of the parties, the costs burden of the litigation or otherwise. Judges may err, and this is why there are courts of appeal. Opinions of lawyers differ, and this is why a town that cannot support one lawyer frequently can support two. (this is not my expression and I would appreciate knowing who did author this).
In Ontario in most instances unless the claim seeks declatory, injunctive relief or pertains to an interest in land, or family matters, the amount of money involved in the litigation dictates where or how the litigation should be brought. A case under $25,000.00 should be brought in the small claims court in the geographical district where the defendant resides. Of course there are exceptions. A case over $25,000.00 and under $100,000.00 should be brought in the Superior Court of Justice under the simplified rules. There is no verbal discovery of the parties under the simplified rules. Although the parties cannot examine the other under oath to test the case and evidence before trial, there is a very significant costs savings which in theory offsets the uncertainty and risk of surprise at trial. The parties are required to make disclosure of all of the relevant documents and potential witnesses. In those proceedings which involve claims in excess of $100,000.00 are brought in the Superior Court of Justice but not under the simplied rules as of right. The plaintiff may elect to bring this claim under the simplified rules and the case will proceed on that basis if no defendant objects or if faced with an objection, the plaintiff waives the excess of $100,000.00 of the claim. The proceedings brought under the regular rules of civil procedure (not simplified rules) have full verbal and documentary discovery. This can be, and frequently is a very costly and time consuming although recent changes in the procedure are limiting the discovery process and scope of discovery to reduce costs and maintain some proportionality to the scope of the discovery to the matters at issue.
If you are in a dispute which you cannot resolve directly or are uncertain of your rights and the law pertaining to any issue which you believe may impact upon you, or you have any questions regarding the court process in which you are or may be involved, you should consult a lawyer. I would be pleased to receive your consultation and feel free to contact me through the contact link.
Alternative Dispute Resolution (A.D.R.)
As an alternative to court proceedings, resort may be had to what is referred to as Alternative Dispute Resolution. This is a private system whereby the parties agree to either a mechanism whereby their dispute will be determined by another, that is Arbitrated, or the parties will retain a person who will in theory help the parties to negotiate and settle the dispute between them, a process referred to as Mediation. Both of these processes are voluntary and must be agreed to by the parties. There are some jurisdictions which require mediation as part of the litigation process. Arbitration is a private court. The rules and powers of the arbitrator are set out in the Arbitration Act and in what ever agreement entered into by the parties. Mediation frequently deals not simply with the facts and law, but also to the underlying reasons behind the dispute. Mediation is most appropriate when the parties have an ongoing relationship extending beyond the matter in immediate contention or when the parties desire a long term relationship or can honestly agree to disagree. Mediation requires the parties to act from positions of relative equality, without duress or fear of retribution, with full and complete disclosure of all material facts. It requires the participants have an open mind to assess the positions of the others, and an honest desire by the participants to resolve the matters in contention. Mediation and arbitration are private processes, which means the parties make up the rules and the parties bear the full costs of the process.
A word of caution. Unfortunately, mediation may exhaust the financial resources which otherwise are required to pursue a remedy through the courts in the absence of settlement. Mediation should be entered where there is a reasonable prosepct of resolution and there appears to be a genuine intent to come to some resolution, which will involve a compromise. It is an unfortunate and not infrequent occurrence, that an unsuccessful mediation or other negotiation process may exhausts a person's resources, leaving that person with out remedy and without the means to pursue that remedy. That stated, a negotiated resolution which you can live with, may be a better result than a good a good law suit.
Please feel free to contact me through my contact link you have any questions pertaining to either process, or wish to consider retaining me to represent your interests at mediation or arbitration or act as an arbitrator or mediator.
PROPRIETARY INFORMATION AND
INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY INTELLECTUAL PROPERTY is frequently an under rated core and value of any business as a going concern. It includes the know how, contacts, business plans, processes, trade marks, data bases, designs, trade secrets and the other intangibles which distinguish your business from your competitors. Generally speaking there is no ownership in an idea, but there is ownership in how you utilize and exploit your idea. The value to you as the user is considerable, and in light of the significant changes in the economy geared towards information technology, merchandising, licensing, distribution rights, royalties, derivative rights, moral rights, marketing and franchises, the market recognition of your goods or services, that ability to distinguish your business from your competitor, and to preclude your competition from wrongfully utilizing your unique and proprietary information and other intellectual property may be material to your success. To preserve and protect your proprietary interests to your intellectual property certain steps and registrations in Canada and elsewhere may be required. Once registered there are ongoing steps to maintain your rights to your intellectual property. I've been a trade mark agent in Canada since 1981. I would be pleased to discuss with you any enquiry you may have on this issue. Feel free to make your enquiry through the contact link.
| COLLECTIONS We all have bad debts. A sophisticated debtor may run, hide, lie, seek protection under various debtor relief legislation, move monies and assets off shore, place assets in hidden trusts, apply for bankruptcy protection and otherwise expend efforts to make the debt appear uncollectible. For such a debtor it may be a way of life. Once a debt goes bad, decisions are made whether or not to pursue the debt, the debtor, and the efforts to be expended in the hunt and capture of these monies. Seasoned and sophisticated counsel may be of significant aid in the decision making process and the hunt. Counsel should be experience in matters of debt collection, off shore transactions, fraud, white collar crime, securities enforcement and mortgage remedies and have worked with certified fraud examiners and investigators domestically and abroad in aid of client’s causes. There are those case where the debt is denied. That denial may be genuine and on the merits based upon a genuine dispute between the creditor and debtor which may negate all or part of the alleged debt, it may be based upon a remdial legislation prohibiting what the debtor may claim is excessive collection practices or it may simply be a bad faith dodge to avoid a financial obligation. Each one of these alternatives requires a different approach in aid of recovery. Please feel free to contact me should you have any questions pertaining to any collection matter. |
Businesses take many forms. My business, my law practice is a sole proprietorship. This means I alone own it and receive the benefits associated with this ownership and I alone assume the risks and responsibilities associated with the business. This may not be the right choice for everyone. A partnership is formed by two or more persons who for business purposes engage in an enterprise for profit, and in turn share the risks and benefits of that enterprise. Unless there is an agreement between the partners, the risks are joint and several, which means each partner is responsible for all of the debts and liabilities of the partnership and share equally with the other partners the benefits of the partnership. To reduce the risk associated with a partnership, a Limited Partnership may be formed. This is a business form in which the general partner is fully responsible for the acts of the partnership enterprise and the limited partners, provided they take no part in the management of the partnership, only risk their partnership capital and they share in the benefits derived from the enterprise. The partners in either case may be individuals and corporations. Corporations may be considered the most sophisticated of the business forms since it entails the creation of an entity separate from its owners who are only the shareholders. The corporation assumes the liabilities and risks associated with the corporation’s activities and not the shareholders. The shareholders elect the directors. Directors appoint the officers and declare the dividends, whereby the corporation’s profits are distributed to the shareholders.
This blurb is not an exhaustive of the forms of business entities which may be available or right for you. Depending on the nature of the business, tax implications, the relationships between the participants, the anticipated clients, the requirements of persons providing financing or capital, the form the business may take may be hybrid combination of the various forms reviewed, with sophisticated terms in the governing agreements and constating documentation setting out the various rights, remedies and responsibilities of the parties. Each of these forms of enterprise are governed by legislation and regulation, and require for the most part some form of governmental registration. Failure to properly register your business and the business name may have significant unintended consequences, including personal liability for the obligations of the business.
There are also exceptions to the limited liability associated with limited partnerships and corporations. These involve matters of conduct in respect of the corporate activities with others, they may be the consequence of a personal guarantee extracted by persons contracting with the business or otherwise. Should you have any particular questions as to what form of enterprise may be right for you, please feel free to make your enquiry through the contact link.
AGENCY and the use of "IN TRUST" and other evils.
A trust occurs when some one holds something on behalf of another. This may be pursuant to a power of attorney, a will, a trust deed or the simple usage of the phrase, “in trust”. It may also occur as a result of the circumstances of the transaction, the conduct or relationship of the parties without the word, "trust" being uttered. The person acting as the trustee is personally responsible to others with whom the trustee contracts with unless the liability is expressly limited. The usage of the phrase, “in trust” does not limit the trustee’s liability in any fashion. This phrase is frequently used in real property transactions, where the purchaser, contemplating that he is acting for a corporation he'll incorporate to hold title or for some other person, believes the phrase "in trust" means that the purchaser is acting for some one else without liability. It doesn't have that meaning. The person acting in trust, is acting in a personal capacity and is fully responsible to the other contracting party, and concurrently the person is also responsbile for the person for whom that person is acting, that being the beneficiary. In trust is not a shield.
If a person is acting on behalf of a corporation to be incorporated, which is often the case, the person remains personally liable for performance under the contract. The corporation, once incorporated must ratify the agreement to be bound to it.
If one is acting for others and the person acting wishes to avoid liability on the agreement, such should be expressly set out in the agreement.
If one is acting as a agent for the other, there are issues of real and actual authority which may bind you and the person for whom the agent is acting. If one acts without authority or exceeds the authority, and the person for whom the agent is acting is bound by those actions, the agent will likely be liable to the person for whom the agent is acting for the losses and damages suffered as a consequence of those actions.
Not all agents are trustees. Trustees are frequently held to a higher duty of care. The trustee must account to the beneficiary and must act in the best interest of the beneficiary. Trusts may be used for sophisticated estate planning to shelter assets, split income, tax planning, provide for spouses and children, or protect against possible claims by former spouses and children. Should you have any particular questions as to what form of trust may be right for you, please feel free to make your enquiry through the contact link. In the event you wish to proceed with a business registration or incorporation, please contact me using the "contact us" link.
A contract is an agreement between two or more persons where one party agrees to do something in exchange for something received by another party. There is a cautionary expression, “a verbal agreement may be as good as the paper it is written on”. Although a verbal agreement is binding, it’s a matter of proof as to what the agreement actually is. At a time the agreement is in dispute memories may be hazy or selective. Certain agreements must be in writing, such as a guarantee. Agreements should be in writing and should clearly set out the intentions of the parties to the agreement with a significant degree of certainty. Life however doesn’t work that way and all to frequently, agreements are not clear, fail to address the intentions of the parties, disputes arise regarding the performance and terms of the agreement and otherwise give rise to those events which need lawyers. A good agreement which will reflect the intention of the parties, survive disputes regarding interpretation and performance, and takes time, consideration and experience to prepare and negotiate. It is time and effort well worth expending. I would be pleased to assist you in negotiating, drafting, interpreting and enforcing your contractual issues. Please use the "contact us" link.
CRIMINAL LAW
Not every immoral act is a crime. Not every criminal act is a act of moral turpitude. Crimial Act and violations of various regulations designed to address commercial, consumer, environmental, tax, and other concerns may be committed, regardless of the intention or knowledge that the alleged conduct was wrongful. The consequences of these actions may result in the loss of liberty, reputation, property and money. Commercial and Enterprise Crimes may result in the loss and seizure of assets acquired through the proceeds of crime and other assets which may be alleged could not be acquired on the legitimate declared income. There are reverse onuses to discharge in some criminal matters.
When you are charged with an offence you should seek the advice of a lawyer without any delay. The presumption of innocence is cold comfort when facing a concerted prosecution of an offence which may result in the loss of your liberty, reputation and financial resources. If you are in the course of being investigated of an alleged offence, you have a right to silence. That right to silence does not include a right to mislead the authorities, which can give rise to the charge of obstruction. If you speak to the investigating authorities you must do so honestly. Keep in mind however, that anything you say can and will be taken into evidence and used against you. The choice to speak to the police or other investigators is yours. It is human nature that you may wish to strongly state your innocence and explain your actions. If you wish to provide that statement or explaination, you may do so through your legal counsel. You should advise the investigator or police that you wish to consult with counsel and contact a lawyer as quickly as possible. Your communications with your lawyer are privileged and confidential. This means your statements to your lawyer and your lawyer's statements to you cannot be used in court. What you and your lawyer do which is different than what you and your lawyer may communicate with each other, may be confidential, but may not be privileged. This means there is a risk that evidence of your and your lawyer's actions could make their way into court. Your communications with others may not be privileged and the person who you may have sought counsel, if that person is not your lawyer, may unwittingly become a witness for the prosecution. If you have been charged with an offence, seek the advice of a lawyer.
There are some offences which require you to take certain steps without the opportunity to speak to counsel. By example, an officer may require you to blow into a road side testing device to provide a preliminary blood alcohol reading where the circumstances are such that the officer has reason to believe you may have consumed alcohol. Failure to provide this sample may give rise to a criminal charge, the consequences of which may be as severe as a conviction for impaired driving or driving while having a blood alcohol level above the legal limit. You may have good cause why you are unable to provide this sample. You may have grounds to challenge the readings of the device. You may have a defence or there may be other circumstances which may reduce the impact of these charges.
If you do not have a lawyer, you can contact me or in the alternative, you may contact the Lawyer Referral Service offered by the Law Society of Upper Canada. This is a free service service, and you'll be referred to a lawyer in your area who may be able to provide you with some counsel regarding the legal issues facing you. When arrested the police will likely refer you to duty counsel who can provide you with assistance by phone without charge. If you are unable to pay for a lawyer, contact the Legal Aid Office near you. You may qualify for legal assistance or representation without costs, or limited costs.
NOTICE TO READER:
NOTHING WRITTEN ON THIS PAGE OR THROUGHOUT THIS WEB SITE IS LEGAL ADVICE OR SHOULD BE RELIED UPON AS LEGAL ADVICE. The comments on this site are of a general informative nature and should not be relied upon instead of seeking out legal advice from a lawyer who is familiar with your particular circumstances. These comments, like most things of a general nature, may not apply to your specific circumstances.