Monthly Archives: December 2008

PSWLaw: 2008 Highlights

Posted in: "All by Admin | No Comments Wednesday, December 31, 2008

In this year-end blog special, I’d like to share with readers the many highlights of 2008 at PSWLaw.ca.

The results are in…

Most popular site contents:

  1. About Me
  2. PSW Recommends
  3. Family Law
  4. Civil Litigation
  5. Business Law 101

Most popular blog posts:

  1. Legal Aid: Costs and Contributions (posted November 6, 2008)
  2. Landlord and Tenant Board (posted September 5, 2008)
  3. Re: “Legal Aid Urged for Middle Classes,” Toronto Star, July 26, 2008 (posted July 26, 2008)
  4. Legal Aid Makes You a Better Lawyer! (Posted August 25, 2008)
  5. It’s Thanksgiving – Retail Closings (posed October 13, 2008)

PSW’s blog post favourites:

  1. Winter Lawsuit Hazards (posted November 10, 2008)
  2. Thinking about Hiring Your Neighbour’s Kid? Read This. (posted October 20, 2008)
  3. “No Pet” Provisions (posted September 23, 2008)

Highlights of the Year:

PSW featured on the radio show “Small Business, Big Ideas.” (December 2008)

PSWLaw.ca featured on the popular blog Solo in Ontario: Criminal Practice. (December 2008)

PSWLaw trademarks registration pending (December 2008)

Sign’s up! (November 2008)

PSWLaw sponsored “New Business Movement” conference. (October 2008)

PSWLaw welcomed website editor, Martin Townsend. (August 2008)

PSW held seminars for Youth Employment Services’ BizStart Program. (July 2008)

Open for Business! (June 2008)

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The Economic Downturn vs. Your Divorce

Posted in: "All, Family Law by Admin | No Comments Tuesday, December 30, 2008

A while ago I posted the blog “Lawyers vs. the Economic Downturn,” noting that family law lawyers are getting busier as the financial crisis strains personal relationships.

Today the New York Times published the story “Breaking Up Is Harder to Do After Housing Fall,” discussing the curious correlation between the economy downturn and divorces.

Make no mistakes, people are still getting divorced. However, as the biggest assets accumulated during marriages are often real properties (family homes, vacation properties), the falling housing market makes the emotionally and financially difficult process even worse.

According to the Times, “We used to fight about who gets to keep the house,” said Gary Nickelson, president of the American Academy of Matrimonial Lawyers. “Now we fight about who gets stuck with the dead cow.”

In certain cities in the U.S., the housing market has been so volatile that the exact value of the assets is difficult to determine and nearly impossible to divide. In the Times story, one property in Santa Barbara that had been appraised at 2.3 million at the beginning of the legal proceeding had fallen $600,000 by the time it was sold. After paying off the mortgage, the former spouses had little as they went their separate ways.

As a result of the housing market crash, a growing number of divorced couples are deciding to live their separate lives under the same roof because they can’t sell their homes. This can lead to the unfortunate scenario where one former spouse may parade his or her dates in the other’s face.

Although getting a divorce more challenging in difficult economic times than ever, when marriages break down, brave individuals are undeterred as they set out on their separate paths. Perhaps happiness is indeed something that money can’t buy.

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Season’s Greetings from PSWLaw

Posted in: "All by Admin | No Comments Wednesday, December 24, 2008

It’s the year-end holidays! I’d like to take this opportunity to thank my clients and my readers for their support. I wish all of you have a wonderful winter break.

PSWLaw will be closed on December 25 and 26, 2008 and January 1 and 2, 2009. There are limited appointment slots available for the remainder of 2008.

If you require assistance during our office closure, please call 416-433-5531 and leave a message. I will be checking messages throughout the holidays.

Image licensed by stock.xchng. All rights reserved.

Lawyers and the GST

Posted in: "All, Business Development, Legal Aid Ontario by Admin | 1 Comment Monday, December 22, 2008

The Goods and Services Tax, or the GST, is confusing, even to lawyers. If you look at my retainer agreement, it states, “You will be charged GST on all fees and some disbursements.” But exactly when GST is payable remains a mystery to most of my clients.

Rules for the GST are complicated and highly technical.  In broad strokes, GST is payable on the supply of most goods and services in Canada. (New Brunswick, Nova Scotia and Newfoundland and Labrador adopted a different form of tax, called HST.)

Merchants are required to collect GST on most sales and pay GST on most purchases they make to operate their businesses. They may then claim a credit to recover the GST they paid in the course of these commercial activities. (Note the qualifiers in the above paragraphs, may and most)

When is GST payable for legal services?

In Ontario, lawyers who have a GST number are required to collect GST on legal services performed. Although the Canada Revenue Agency (CRA) provides GST exemption on legal aid plans, it is not applicable in Ontario.* (Interestingly, Legal Aid Ontario pays GST on all fees and disbursements, regardless of the CRA’s policy described below.)

With respect to disbursements (out-of-pocket expenses), whether GST is exigible (meaning collectible) depends on whether the expenses were incurred as an agent of a client. If the expense in question has been incurred by the lawyer in the capacity as an agent of the client, no GST is exigible. If it has not, the GST is collectible.

According to the CRA, the following expenses are generally not GST-exigible:+

  • Government filing fees or registration fees for real estate transactions
  • Government application fees (such as building permits, zoning permits)
  • Court filing fees incurred to initiate a proceeding
  • Government fees to create or maintain a business entity (such as incorporation)
  • Writ of Possession Fees (eviction fees)

GST is generally exigible on the following disbursements because they are not incurred as an agent:

  • Telephone charges
  • Photocopy charges
  • Courier costs
  • Costs for travel by the lawyer (or others working on a client’s file)
  • Postage
  • Search fees
  • Witness fees
  • Fees for transcriptions or recordings

The lists above are by no means exhaustive. Readers should consult a lawyer prior to relying on the contents of this blog.

*See “GST/HST Memoranda Series Chapter 5-3, Legal Aid Services,” Canada Revenue Agency (May 1995), online:www.cra-arc.gc.ca/E/pub/gm/5-3/5-3-e.html

+ see “GST/HST Policy Statement P-209R – Lawyers’ disbursements,” Canada Revenue Agency (July 7, 2004), online: www.cra-arc.gc.ca/E/pub/gl/p-209r/p-209r-e.html

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Lawyers vs. The Economic Downturn

Posted in: "All, Business Development, Family Law by Admin | No Comments Thursday, December 18, 2008

Lately I’ve been attending year-end gatherings within the profession. Besides the usual war stories, what seems to be on everybody’s mind is the economic downturn. Today I’d like to share my admittedly unscientific lawyers are facing this crisis.

People typically think professionals are more resistant to economic downturns than unskilled or semi-skilled workers. However, this is true only to a certain extent. In hard times people may still go to see a doctor when they’re sick, but they’re more likely to postpone elective surgeries. It’s the same for lawyers.

During a economic downturn, lawyers who practise in real estate, mergers and acquisitions, or corporate finance are more likely to feel the strain than the rest, since people are no longer actively buying and selling assets. One of my classmates was recently laid off by his mergers and acquisitions firm in New York and was forced to returned to Toronto.  Another lawyer I worked with complained that real estate closings were down 30%.

Some areas of law are more or less unaffacted  by the economic downturn. For example, in-house counsels, government lawyers, and crown prosecutors generally don’t have to worry about losing their jobs because they are always needed by their employers. Rather, lawyers who work on a contractual basis with in-house counsels and the government to handle the overflow are likely to face the cut.

Interestingly, lawyers practising in certain areas may actually see their business pick up during a difficult time. For example, lawyers who practise in labour and employment law and bankruptcy and insolvency law get busier as workers are laid off and individuals run out of money.

What’s more, I’ve heard several criminal defence lawyers and family law lawyers (particularly divorce lawyers) complain about being overbooked. I suppose during financial problems drive desperate individuals into committing crimes and cause strain on personal relationships. What do you think?

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The Origin of Legalese: Book Review of “The Secret Life of Words” by Henry Hitchings

Posted in: "All, Book Review, Legalese Dictionary by Admin | No Comments Tuesday, December 16, 2008

The Secret Life of Words: How English Became English

By Henry Hitchings

2008, Farrar, Straus and Giroux; 440 pages; $29.95

I admit it: the language of law, even today, remains convoluted. Open a commercial contract, for instance, and you’ll see double-barrelled legalese like “keep and maintain,” “goods and chattels,” “will and testament,” and “indemnify and hold harmless.” The two parts of these familiar legal terms mean largely the same thing. So where did these redundancies come from, and why do they survive?

According to Henry Hitchings’s new book, “The Secret Life of Words: How English Became English,” the phenomenon goes a long way back.

In 1066 Duke William of Normandy invaded England and claimed the throne. French became the ruling language of England for the next 300 years, and the law was no exception. During this period legal terminology was refined, and new jargon – words like jury, justice, plea, plaintiff, lease, larceny, and crime - was imported or introduced from French. As English law became more sophisticated, the legal uses of French grew increasingly specialized.

It was not until 1362, when the Statute of Pleading was enacted, that English became the language of Parliament and the law. Although the statute declared that all pleas should be couched in English and promoted the idea that using English in courts would dispel confusion, it stipulated that court records be kept in Latin.

But the closed ranks of the legal profession resisted the latter part of  the transition. French remained the language for legal writing and thinking for the next 300 years, with generous help from Latin – words like affidavit and subpoena – which “conveyed an air of precision and authority unavailable to English.” Hitchings concludes, “To this date the language of the law proves prolix, repetitious, archaic and theatrical.”

Mr. Hitchings’s writing is precise yet surprisingly accessible to the average reader. Nonetheless, the discussion of the origins of words grows dense at times, and it takes effort to digest the immense contents under the broad heading of etymology and linguistic history. At the same time, the book is full of pleasant yet surprising nuggets. (For instance, I learned that the word sofa is of Arabic origin, and paper tiger is transplanted from Chinese.)  In the end, this book is a pleasantly rewarding read.

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PSW’s Radio Interview Now Available Online

Posted in: "All by Admin | No Comments Monday, December 15, 2008

I was featured on the radio show “Small Business, Big Ideas” last week. (Click here to read the post.)

Today I am glad to announce that the interview is now available on line.

Click on the link below to listen to the December 7, 2008 episode:

www.smallbusinessbigideas.com/podcast/

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Are You Ready to Proceed?

Posted in: "All by Admin | No Comments Friday, December 12, 2008

Today I was at the Landlord and Tenant Board for a contested hearing. Before my hearing, the Board heard an eviction application. The adjudicator asked whether the parties were ready to proceed. Both sides said yes, and the hearing began.

The tenant was self-represented and wasn’t doing very well. As the hearing progressed, the tenant sensed that the hearing wasn’t going in his direction. After being badgered on the witness stand, he started to lose his temper by shouting profanities in the hearing room. (Always a bad sign.)

Several times the tenant interrupted the landlord’s submission and was corrected by the adjudicator. When his opportunity arrived, the tenant’s submission was so incoherent that the adjudicator had to cut him off and ask him whether there was anything relevant to the case he would like to say. (Another bad sign.) Finally, at the end of his submission he decided that he needed legal representation and asked for an adjournment.

Of course, with the evidence already presented and cross-examined, the adjudicator could not grant an adjournment. To do so would have been a serious error in law because it would have seriously prejudiced the landlord’s claim, given that the tenant had seen all the landlord’s evidence.

If you think you need more time to prepare your case or to seek legal representation, tell the adjudicator or the judge that you are not ready to proceed. More likely than not, you’ll get what you wish for.

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Non-Competition Clauses

Posted in: "All, Business Development, Legalese Dictionary by Admin | No Comments Thursday, December 11, 2008

Highly skilled workers often have non-competition clauses in their employment contracts. For example, an insurance salesperson may be required not to continue business with his or her clients after leaving the company. While a non-competition clause may protect the employer from competition with its former employees, it certainly imposes hardship on the departing employee as he or she looks for new work.

In the area of employment law, the courts have long recognized the difference in bargaining power between employers and employees. As such, a court will only enforce a restrictive clause in an employment contract if it is “reasonable between the parties and with reference to public interest.”*

Technically speaking, there are two kinds of restrictive clauses regarding competition: non-competition clauses and non-solicitation clauses. The Ontario Court of Appeal explains the difference: a non-competition clause prohibits the departing employee from conducting business with former clients and customers, whereas a non-solicitation clause merely prohibits the departing employee from soliciting their business.+

It’s well-settled in law that only in exceptional circumstances would a non-competition clause be enforceable; such a clause will be deemed unreasonable and thus unenforceable where a simple non-solicitation clause would have been sufficient.

The onus is on the employer to prove that the restrictive clause in question is reasonable. If you are a employer, you should be careful when imposing either a non-competition clause or a non-solicitation clause on your newly-hired employees.

*Elsley Estate v. J.G. Collins Insurance Agencies Ltd., [1978] 2 S.C.R. 916 at 923

+H.L. Staebler Company Ltd. v. Allan (2008), 92 O.R. (3d) 107

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PSWLaw.ca’s Peer Review

Posted in: "All, Blog Review by Admin | No Comments Wednesday, December 10, 2008

My friend Bo Arfai, host of the ever-popular blog “Solo in Ontario: Criminal Practice” posted a review of PSWlaw.ca  today.

Click on the following link to read the review:

http://soloinontario.blogspot.com/2008/12/solo-in-ontario-profile-on-pei-shing.html

I thank Bo for his kind words.

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