Monday, November 8, 2010

What Does Your Lawyer do on a Real Estate Purchase?

So what does the lawyer do anyway? Well, here's a brief list of a few things your lawyer's office is working on behind the scenes, to make your deal close smoothly! First, we sometimes get contacted by your agent to assist in drafting the Offer, if there are aspects of the deal which are out of the ordinary course. We also often get asked to review the Offer as a condition of firming up the deal. Once the Agreement is firm, we start working toward closing. We order a search of title and a tax certificate to ensure that what you think you are getting you are actually getting. We work with the Vendor's lawyer to deal with any title issues. We receive instructions with respect to your mortgage and we draft the documents for both the purchase and the mortgage. We review the Vendor's documents and comment on any issues needing correction. We meet with you to sign all of the purchase and mortgage documents, review your title and answer any questions you may have about the process. Throughout the process, if you have questions or concerns, your lawyer is there to help and is only a phone call away. Your lawyer, agent and mortgage broker should work as team to get your closing done. Once the deal has closed, we put together a package for you with our reporting letter, a copy of all of the documents including your Deed and Mortgage, and a statement of account which includes a trust statement showing all funds going into and out of our account on your behalf. The most pleasant thing that we do, however, is hand you the keys to your new home and wish you well! As always, if you have any questions, feel free to email me at jmcphail@burgarrowe.com

Sunday, October 31, 2010

What's Your Exit Strategy?

I had a meeting recently with a long-time business owner and franchisee. I was reviewing a new franchise agreement that he was being asked to sign for several franchised locations. The agreement was for five years, no right of renewal. This gentleman was not concerned with the lack of renewal rights at first, since he figured he would be retired by then. But when we started to talk a bit more about the value of the business that he had built over 25 years, it was evident that he had not considered a sale of the business as part of his exit strategy. In fact, he just thought that in five years, he would walk away. The business had been good to him, allowing him to earn a living for many years. After discussing a possible sale, he realized that there could indeed be someone out there who might be willing to pay for an assignment of his franchise rights. Once this realization hit him, he understood the value of a right to renew in his franchise agreement (and his leases). It's interesting to me that some business people don't think of their businesses in terms of saleable. They are a way to earn a living, but can also be a substantial asset that someone else will pay good money for. Even though a business is franchised, and sometimes there are restrictions on sale, it's worth having a look at and determining what the exit strategy may be. Once you know approximately when and how you wish to exit the business, it allows you to have a look at opportunities you may not have thought of before. And the strategies for getting there - like ensuring you negotiate for a right to renew an agreement. What's your exit strategy? Knowing the answer to that question makes good business sense.

Monday, September 13, 2010

The Family Business

I have had a few years of experience under my belt, dealing with all sorts of businesses, and I would say that one of the most challenging is often the family run business. You know, the company that grampa started, and now has been passed down to dad, who has his two kids also working in the business? The difficulty with this sort of business, is that it has this extra layer or nuance, easily recognizable at the dinner table during the holidays. Sometimes, mixing family and business can work, and sometimes it creates so many undercurrents in everyones' lives and creates so much stress, that it never really becomes what it could be. If you are involved in a family run business, I would highly recommend a book by Tom Deans called "Every Family's Business". It is an interesting and eye-opening read. CAFE (The Canadian Association of Family Enterprise) is lucky enough to have him coming back to Barrie to talk about family businesses and succession planning. Burgar Rowe is proud to be one of the sponsors of this event, being held at the Barrie Country Club on October
18th from 7 - 9pm. If you are interested in attending, call Joan at (705)726-6331.

Thursday, August 5, 2010

Health Practitioners Treating Spouses Beware!

A recent Ontario Court of Appeal case should be noted by all health professionals as a potential cause for concern. Leering v. College of Chiropractors of Ontario
[2010] O.J. No. 406 seems to indicate that a health professional treating their spouse, as a patient, is automatically in violation of section 51(1)(b.1) of the Health Professions Procedural Code! While there must be a patient/health professional relationship established, as opposed to mere “episodic” care (ie) a doctor and her husband are in an accident and she gives him emergency treatment, this along with a sexual relationship is all that is needed in order to be in violation of the Code. If you are a dentist and you see your spouse in your office every 6 months for a checkup, she is likely a “patient”. If your spouse later complains to the RCDS, you could have the same trouble as Leering.

Osgoode Hall Law School’s website “The Court” has a good article on this case and a few other related cases, for those of you who may be interested in more information at http://bit.ly/bfhTob Sometimes legislation gets written, usually with the best of intentions, but the language is poor and so the courts are then faced with having to follow that language, even when the result seems a bit extreme. Hopefully the various lobbying bodies for the professions will jump on this and attempt to have the legislation amended so that the mere fact that someone treats their spouse is not, in and of itself, “sexual abuse” and professional misconduct. Certainly we all want to ensure that patients are protected from abuses of power by medical professionals. But speaking as the spouse of a dentist, I see absolutely no reason why I should not have the best dentist I know treat me, just because I happen to also be married to the guy!

Sunday, June 13, 2010

Bill 168: Tips on How to Comply

I have been starting to field calls from clients regarding complying with Bill 168 and the new amendments to the Occupational Health and Safety Act (Ontario). There are numerous resources out there to assist employers with complying. The Ministry of Labour has a great booklet with sample policies and information on duties of employers and how to comply at http://www.labour.gov.on.ca/english/hs/pdf/wvps_toolbox.pdf. There are consulting companies that offer staff and management training and education programs and they will also assist in policy development. Employers can also check with their local Chamber of Commerce. Many Chambers are offering seminars for their members. You can take one of several online courses at http://www.iapa.ca/Catalog/ProductDetails.aspx?id=593 if you prefer web based education in the comfort of your office. Basically, there are numerous opportunities for learning about these new requirements and making sure your business complies. Staying on top of legislative changes that effect your workplace just makes good business sense.

Thursday, May 6, 2010

Bill 168 - New Legislation on Workplace Safety - Will Your Business Comply?

If your business has employees you need to be aware of Bill 168, which comes into effect on June 15, 2010. It sets out a number of amendments to the Occupational Health and Safety Act (Ontario). These amendments require employers to develop and maintain policies that address workplace harassment, violence and threats of violence in the workplace. And the policies must be reviewed at least annually.

Workplace Harassment is defined as "engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome." Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Workplace Violence means:
(a) The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker;
(b) An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker; or
(c) A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker.

In workplaces of more than five employees, the policies are to be written and posted in a conspicuous place in the workplace. There have to be mechanisms for reporting violence, investigating complaints and controlling risks.

In anticipation of this new legislation, employers should be reviewing their current policies, assessing risks, security protocols and procedures and implementing training for staff.

For more information, check out the Ministry of Labour Website at http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_workplaceviolence.php

Friday, March 26, 2010

HST and Resale Real Estate

Many potential home buyers and sellers have been worried about the implications of the HST which kicks in as of July 1, 2010. In fact, no HST will be applicable on the purchase price of a resale home. Some ancillary services, however, will be subject to the new tax. Sellers will have to pay 13% HST on real estate commissions and legal fees associated with selling. Buyers will pay 13% HST on their lawyer's fees and things like house appraisals or status certificates on a condo. But the bulk of the expense - the purchase price, is not taxable. The implications, therefore, for home buyers of resale homes, are not huge. Certainly no reason to panic or rush a decision to purchase your home.

Thursday, March 25, 2010

When a Non-profit closes its doors

I just had a question from an accountant friend of mine who asked me the following: a nonprofit client is shutting down its operations and it has a suplus. Where does the surplus go? The answer is "it depends". If the non-profit is a registered charity - the surplus should go to another registered charity. The articles or by-laws of a corporate charity may indicate what sort of charity (usually similar in nature) the proceeds will be disbursed to. If the organization is a nonprofit but not a charity, the proceeds can be disbersed to its members, unless its articles or by-laws stipulate otherwise. Of course this is just Ontario law, folks! Every jurisdiction has different rules.

Wednesday, March 17, 2010

Barrie Senior Awards

Do you know an exceptional senior in Barrie? Nominate them for an award for their community service at http://bit.ly/cqa2JI

Thursday, March 4, 2010

Can't Pay the Rent?

In these economic times I have, unfortunately, had a few clients who have been struggling to continue to make their monthly lease payments on their commercial or industrial space. When they call, I usually give them this advice: let's call the landlord. The most practical piece of advice a lawyer can give in these situations, in my opinion, is to keep the lines of communication open. Sure the landlord wants to get paid, but he may also be willing to negotiate with you, over the short term, in order to keep you as a long term tenant. Often, the last thing he wants is to have to look for a new tenant. Of course, every situation is different, and yes, sometimes landlords are just waiting for the opportunity to distrain a tenant's goods and lock them out, but if your business has always paid its rent on time, and you are simply in need of a little flexibility to get you over a short-term hurdle, a phone call to the landlord can't hurt. We have had some success in negotiating alternative rental arrangements to get clients through hurdles. Letting the landlord know that you want to pay the rent, and asking him for a plan to make that happen, can be an up-front and straight-forward approach, and an excellent alternative to simply ignoring his calls and not paying your rent on time.

Wednesday, February 10, 2010

Small Claims Court Limit Increase

Effective January 1, 2010, the limit for claims in Ontario small claims courts has increased from $10,000 to $25,000. With the process being relatively user friendly, and not requiring a lawyer, I would imagine the number of claims will increase significantly, providing access to justice for people who may have otherwise declined to pursue a claim due to legal costs. For businesses, this means larger accounts receivable, for instance, can be collected through this process, with few upfront legal expenses. Good news for the small business community.

Friday, January 29, 2010

Non-Competition Covenants

When an employer hires an employee, they are often concerned with what might happen if that employee was to leave and work for a competitor or start a competitive business. Quite often, employment agreements will contain non-competition covenants which stipulate that, upon termination of employment for any reason, the employee agrees not to compete with the employer within a certain georgraphic region and a certain period of time. Difficulties can arise where these covenants are too broad, and not necessary for the reasonable protection of the employer's interests. Sometimes these covenants are entirely unenforceable. A good question to ask yourself, as an employer, is: can I reasonably protect my business by using a confidentiality clause (employee agrees not to disclose any confidential information of the business) and a non-solicitation covenant (employee cannot solicit the existing customers or prospects of the business). If your interests can be protected using these means, it may make sense to draft your employment agreement accordingly. Having an agreement that is both reasonable and enforceable makes good business sense.