Monthly Archives: February 2009

Judicial Notices

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Wednesday, February 25, 2009

“Judicial notice” refers to commonly known information that is not required to be formally proven in court. Rather, the information is accepted as being noted by the judiciary, hence the name.

Generally, only indisputable facts can be judicially noted. For example, historical facts, geographic locations, and the meanings of words are often judicially noted. Similarly, well-known medical opinions (such as smoking causes lung cancer) and well-established scientific theories (“battered woman syndrome”)^ may be included in a proceeding as judicial notice.

There are also statutory enactments requiring judges to take judicial notice of domestic laws.#

In contrast, “delegated legislation” (such as corporation by-laws, condominium corporation declarations) is not well-known enough for the judge to take judicial notice. In this case, it must be proven as fact, generally through an affidavit.

What about personal knowledge? Can a judge use his or her own personal knowledge to adjudicate a case?

At common law, the judges can only utilize general knowledge commonly known to the community to decide a case. Numerous appellate decisions in Canada indicate that a judge should not rely on his or her own opinion.*

^R. v. Lavallee, [1990] 1 S.C.R. 852

#See e.g. Canada Evidence Act, R.S.C. 1985 c. C-5 ss. 17, 18., Legislation Act, S.O. 2006, c. 21, Sch. F.

*See e.g. R. v. W.(S.) (1991), 6 C.R. (4th) 373 (Ont. C.A.), R. v. Dickson (1973), 5 N.S.R. (2d) 240 (C.A.)

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Pet Owners Buying a Condo

Posted in: "All, Animal Welfare by Admin | No Comments Tuesday, February 24, 2009

Buying a condo can be a challenge for many, yet it can be a bigger challenge for buyers with pets. To many homebuyers, pets in condominium units are a source of confusion and often contention.

Today I’d like to talk about what pet owners (or “pet parents,” as some call themselves) need to watch out for when considering buying a condominium unit.

When surveying the market, most people start with MLS listings. On the MLS listing summary, one item of View this Postthe form is devoted to pets. It may show “permitted,” “restricted,” or “not allowed.”

If pets are “restricted,” things get more complicated, as the rules tend to be convoluted and confusing.

I recently came across a case where the condominium corporation’s declaration stipulates that each unit is permitted

“one cat, or one dog, given that the dog is under 20 lbs and does not exceed 24 inches in height, or a bird, if it is not of an endangered species, or small domestic, tamed animals excluding turtles.”

After reading this paragraph, I couldn’t help but wonder, “What if my dog gets fat?”

Even if the summary indicates that pets are “permitted,” I suggest not relying on the listing summary entirely.

These listings are often filled out by real estate agents who rely exclusively on the information provided by the sellers. Therefore, mistakes are not uncommon, especially if the seller doesn’t own a pet and is therefore unfamiliar with the rules. The binding authority on the pet policy of a specific condominium rests in its declaration or by-laws.

Unfortunately, you won’t know exactly what the pet policy of your dream condo is until you make an offer.

After you make an offer, the seller has a short period of time to produce a condominium status certificate. Depending on the wording of your offer, you may be able to get out of the deal if you find your pet is not allowed in the building.

If you’re viewing the property in person, I suggest you simply ask the security personnel whether your pet would be allowed. Generally speaking, a condominium’s security staff are knowledgeable of pet issues (since they’re the ones taking the complaints).

Finally, before you commit yourself to the deal, you should specifically inquire about the pet policy with your lawyer and obtain an affirmative answer to your question.

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Freebies, at What Cost?

Posted in: "All, Business Development by Admin | No Comments Monday, February 23, 2009

Frequent visitors to my blog may notice that I’m cautious when dealing with the marketing ploys of telecommunication companies – term contracts, questionable savings, and hidden costs, you name it. (See my blog “Short-Term Gains, Long-Term Pains,” posted November 27, 2008.)

I recently received yet another seemingly amazing offer from my telecom – “Visit our store to activate your 100 free local minutes!” As I exceed my monthly plan limits almost every month, I was very tempted to accept the offer.

However, no doubt because I’m a consumer rights lawyer, my instincts were telling me something wasn’t  quite right with the offer. I found it hard to believe that the telecom would throw such a generous freebies to existing paying customers. Free offers are generally aimed at recruiting new subscribers.

So I dug around some more. It turned out the “free” 100 minutes do come with strings attached. By claiming the 100 minutes, you agree to sign up for a special bundle with the first month free.

Of course, when you go to the store to activate the minutes, the salesperson will assure you that the 100 minutes are free and you get to try out the new bundle at no cost for the first month. The salesperson assumes you want to sign up for the services and says very little about your obligation to keep paying for the special bundle after the first month expires.

This sales pitch is of questionable legality. Depending on what is actually being said by the sales representative, it may or may not violate one of Ontario’s consumer protection laws.

In reality, however, once you claim the “free” 100 minutes, it’s very hard to change your mind and get out of the deal. It’s difficult to prove that the salesperson failed to disclose the terms of the agreement. It’s even more difficult to get any kind of meaningful compensation as a result of the misrepresentation.

Consumers beware: freebies, at what cost?

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Online Consultation – The Next Big Thing?

Posted in: "All, Business Development by Admin | No Comments Wednesday, February 18, 2009

Recently I received several inquiries regarding paid online consultation in legal matters.

Apparently, there are several companies, both in the U.S. and in Canada, that provide this kind of service.

Under the terms of the service, generally speaking, the client posts a legal question or a short scenario to an online database connected to licensed lawyers in the jurisdiction. The client then chooses the price (depending on timeliness and length of the answer) and pays with credit card. Internet enthusiasts have hailed this increasingly popular online service as “legal services in the web 2.0 era.”

Personally, I’m reluctant to accept requests for online consultation. While online consultations may seem to be easy money for the lawyer, they may pose hidden dangers to the clients.

First, the client may not get the “question” right. The client is not able to post all relevant materials online, for practical and security reasons, and clients without legal training may omit important details that concern jurisdiction and limitation issues.

Second, the online consultations provide mostly summary advice. Due to technical and budgetary limitations, the lawyers are unable to properly examine all relevant documents before providing legal advice. They thus can provide only a vague outline as to the prima facie rights and obligations of the parties or a heavily qualified short answer with a hefty disclaime.

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Common Employment Scams

Posted in: "All, Business Development by Admin | No Comments Tuesday, February 17, 2009

In difficult times, scam artists are taking advantage of people who have recently been laid-off by offering bogus employment schemes. These schemes typically require you to provide money up front before services are rendered.

Today I’d like to share a few scenarios with you.

Scenario #1: I have a job for you… overseas!

As the manufacturing sector continues to fail in Ontario, more and more people are exploring job opportunities overseas.

An agency advertises that it has well-paid jobs overseas, such as in Dubai or Shanghai, and holds interviews at a local hotel.

The interview goes surprisingly well, and you’re hired on the spot. However, because there’s visa requirement for Canadians to work in Dubai or China, you’re asked to pay several hundred dollars in advance for the “administration and visa-application” fees.

Of course, there is no job overseas. Once you part with your money, the agency disappears.

Scenario #2: Top modelling agency… for a fee!

This type of employment scam is more common in big cities such as Toronto, New York, and L.A., where many aspiring models, singers, and actors congregate.

An agency advertises in the local paper to recruit “talent” for a multi-national talent firm, often based overseas in the U.K. or France. The agency poses as the firm’s exclusive agent in North America or Canada or the U.S. The agency often claims that the project is under a non-disclosure agreement. Hence you are unable to get independent confirmation.

The agency holds recruiting sessions at fancy hotels or high-end office buildings. You’re told that you’re the next big thing, and you’re hired on the spot. However, to make your portfolio more attractive, you’re asked to pay several hundred dollars for a professional photoshoot. Payment in advance, of course.

After you make the advance payments, you discover that the agency is bogus and it has nothing to do with the multi-national firm in question. There’s no photoshoot, either.

Scenario #3: Job training with job guaranteed

This scenario targets unskilled workers who want to get into semi-skilled positions, such as security officers and executive assistants.

Typically, the agency advertises itself as the leader in the industry and provides guaranteed high-paying jobs after the training is completed. The applicants are required to pay an administrative fee and tuition in advance, often in the amount of several hundred dollars.

The agency disappears after you part with your money.

In another scenario, the agency provides shoddy training of little or no value. The “training” doesn’t lead to a job and is not recognized by other firms.

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As I mentioned in yesterday’s blog, to recover the funds from a scam artist is often difficult if not impossible. The best remedy against scams is prevention. By recognizing the warning signs of a potential scam, you may be spared from being the next victim.

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Scams in Difficult Times

Posted in: "All, Business Development by Admin | No Comments Monday, February 16, 2009

As the economy remains in a slump and the massive layoff continues, scam artists are taking this opportunity to target individuals who want to “get rich quick.”

Generally, there are common traits of employment scams. The Ontario Ministry of Small Business and Consumer Services reminds consumers to watch out for the warning signs of a scam:+

  • It sounds too good to be true.
  • You’re asked to send personal or financial information before they disclose an offer.
  • You’re promised a valuable prize in return for a low-cost purchase.
  • You’re pressured to send money to take advantage of a deal.
  • You’re required to send money as a condition of obtaining a loan.
  • You’re asked to call a special number. (The number is often a long-distance call that results in your being billed at a costly rate per minute.)
  • You’re asked to invest in schemes. (Don’t spend your savings without carefully checking out the investment, product, service, and investor.)

The list goes on and on.

What can you do if you’re a victim of a scam?

You can report the scam to various authorities, including Ontario’s Ministry of Small Business and Consumer Services, the RCMP, and the Canadian Consumer Information Gateway, a federal consumer-protection agency. The scam artists will be investigated and perhaps prosecuted.

That being said, reporting the scam to the authority seldom gets you your money back. You will likely have to sue in civil courts for the recovery.

However, to commence a civil claim, you’ll have to know the identity and the address of the scammers. In many instances, the scammers have few or no assets in the jurisdiction (as the funds may have been sent overseas or spent). Recovery of your funds is generally very difficult and unlikely.

Of course, the best remedy against scams is prevention. To achieve this, I will be posting common scam scenarios in tomorrow’s blog.

Stay tuned!

+Ministry of Small Business and Consumer Services, online: <http://www.gov.on.ca/mgs/en/ConsProt/STEL02_173168.html>

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Family Day – Day off?

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Sunday, February 15, 2009

This Monday marks the second annual Family Day in Ontario. Last year Premier McGuinty amended the regulation under the Employment Standard Act (ESA) and made the third Monday in February a new statutory holiday.

While many will be enjoying this new holiday on Monday, not everyone in Ontario is entitled to have the day off. If you work in a federally regulated industry, or are a federal civil servant, you will not have the day off.

In addition to the federally-regulated industries, you may not be able to take the day off if:

  • you are employed in a hospital, hotel, motel, tourist resort, restaurant, tavern or “continuous operation”
  • you are exempted from the public holiday provisions under the ESA, (for example, lawyers, doctors, veterinarians, etc.)
  • your collective agreement or employment contract is more generous to public holidays than the public holiday provisions in the ESA.

My very good friend Paul is a lawyer who works for the federal government. It looks like he’s not getting any time off until Easter.

As for PSWLaw, the office will be closed on Monday because members of the support staff are off. I’ll be spending time with my family.

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Free Legal Advice… Take a Number

Posted in: "All, Just for Laughs by Admin | No Comments Monday, February 9, 2009

Lately I received several inquiries regarding free legal advice.

Our policy regarding free legal advice is as follows:

To purchase your own grenade, click here or visit www.forcounsel.com.

Photograph used with permission. All rights reserved.

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Charity vs. Non-Profit Organization

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Monday, February 9, 2009

Many people use the words “charity” and “non-profit organization” interchangeably. However, the two words have distinctive meanings in tax law.

Under the Income Tax Act, both charities and non-profit organizations are generally exempt from income tax if no part of their income is payable to, or available for the personal benefit of, a proprietor, member, or shareholder.

However, not all non-profit organizations are charities. In Canada, charities are required to register with the Canada Revenue Agency (CRA) and to meet certain legislative obligations. The registration may be revoked by the CRA if the conditions or obligations are not met.

To qualify as a charity under the Income Tax Act, the organization must be established and operate for charitable purposes and devote resources to charitable activities.

Although the Income Tax Act does not define what constitutes “charitable purposes,” the CRA follows the common law. Generally speaking, the following activities are considered charitable:

  1. the relief of poverty
  2. the advancement of education
  3. the advancement of religion
  4. other purposes beneficial to the community

In particular, the last category would include the following activities:

  • providing certain amenities to the benefit of the community (e.g., museum, library, gallery, botanical garden)
  • rehabilitating victims of substance abuse and preventing substance abuse
  • providing counselling service for people in distress
  • protecting the welfare of children
  • organizing environmental projects
  • providing affordable rental housing, providing immediate relief to victims of natural disasters
  • establishing humane societies, animal shelters, and similar institutions to prevent cruelty to animals

The list above is by no means exhaustive. If you require further assistance in determining whether your organization would qualify as a charity, please do not hesitate to give me a call at 416 433 5531.

Source: Canada Revenue Agency, “Registering a Charity for Income Tax Purposes” T4063(E) Rev. 08

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Lottery Games

Posted in: "All, Administrative Law, Business Development by Admin | No Comments Friday, February 6, 2009

It is not uncommon for charities or not-for-profit organizations to sell raffle tickets to raise funds at their events. However, not all organizers are aware of the licensing requirement under the law.

Under the Criminal Code, it is unlawful to conduct or manage a game of chance, including lotteries, slot machines, car games, fortune wheels, and random draws, except as specifically exempted.+

Contravention to this section of the Criminal Code is an indictable offence, and a conviction may lead to imprisonment not exceeding two years. Individuals who buy tickets or participate in an unlicensed game may be prosecuted under summary conviction under subsection 4 of the same section.

In Ontario, lawful lotteries are available through the Ontario Gaming and Lottery Corporation, a Crown agency established under the legislation.

If you are a charitable organization, you can apply for a licence to hold a lawful gaming event under the Gaming Control Act.* Depending on what kind of schemes you have in mind, you may apply for a licence with your local municipality or the province.

You will need to provide relevant documents to qualify as a charitable organization for the purpose of applying for a gaming licence. Regardless of the charitable cause, the organization must have been in existence for at least one year prior to the application. The organization must also have a place of business in Ontario, demonstrate that it has been established to provide charitable services in Ontario, and use proceeds for objects or purposes which benefit Ontario residents.

If you require assistance to apply for a charitable gaming license, please do not hesitate to contact me at 416 433 5531.

+ Criminal Code, R.S.C. 1985, c.C-46, s. 206.

* S.O. 1992, c.24

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