How Do I Obtain Intellectual Property Rights? INTRODUCTION TO INTELLECTUAL PROPERTY Intellectual property is a dynamic area of law that continues to be at the forefront of innovation, and continues to develop. Intellectual property is the legal right to ideas, inventions, and creations in the artistic, literary, industrial, and scientific fields. It also covers symbols, names, images, designs, and models used in business. Intellectual property is distinguishable from physical property in that physical property is tangible whereas intellectual property does not have a physical presence and therefore cannot be touched or grasped. The three most common types of intellectual property are: (1) copyrights; (2) trademarks; and (3) patents. This blog focuses on the law surrounding trademarks. TRADEMARKS What is a trademark? A trademark can be one or many words, sounds, or designs used to distinguish the goods or services of one person or organization from those of others. As time passes, trademarks come to stand for not only the producer’s actual goods or services, but also the producer’s reputation. There are three types of trademarks: 1. An ordinary mark is made up of words, sounds, designs or a combination of these used to distinguish the goods or services of one person or organization from those of others. For example, suppose you start a technology company centred on fitness, and you call it SixPack Technologies, you could register these words as a trademark if you meet all the legal requirements for the services that you offer. 2. A certification mark can be licensed to many people or companies for the purpose of showing that certain goods or services meet a defined standard. For example, the Kellogg’s design, owned by the Kellogg Company, and licensed to Kellogg Canada Inc., is used on cereal and other goods. 3. A distinguishing guise is about the shape of goods or their containers, or a way of wrapping or packaging goods that shows they have been made by a specific individual or firm. For example, if you manufacture S-shaped granola bars, you could register the S-shape as a distinguishing guise. To register, or not to register? A registered trademark is a trademark that has been reviewed, accepted, and entered in the Register of Trademarks. The application process may or may not be difficult, depending on the trademark in question. Registration is direct evidence that you own the trademark. For those who have yet to register their trademark, all is not lost. In Canada, owners of unregistered trademarks still enjoy certain rights and protections, albeit to a lesser degree. The owner of an unregistered trademark simply has to publically use the trademark for a certain length of time. These rights, however, are limited to the geographic area where the trademark has been used. Also, a legal dispute involving ownership of an unregistered trademark would likely be long, complicated, and expensive. On the other hand, there are five reasons why you should register your trademark: 1. It proves that the trademark is yours. 2. It gives you exclusive rights to use the trademark across Canada for 15 years (which you can indefinitely). 3. It stops others from using a confusingly similar trademark. 4. It allows you to flag infringements by others. 5. It helps you license your trademark, which you can use to make money and increase your brand’s popularity. What trademarks are not registrable? Generally, a person cannot register the following marks: • names and surnames (i.e. John Doe) • clearly descriptive marks (i.e. “sweet” for chocolate) • deceptive marks (i.e. “sugar sweet” for candy sweetened with artificial sweetener) • words that represent a geographical location commonly known to be the place of origin of such goods or services (i.e. “Italy” for pizza) • words in other languages (i.e. “cioccolato”, which is Italian for “chocolate”) • words or designs that could be confused with a registered trademark or pending trademark • words or designs that look very similar to a prohibited mark (i.e. the Canadian flag) REGISTERED TRADEMARK + RECOGNIZABLE TRADEMARK = ENDLESS POSSIBILITIES A classic example of an incredibly powerful trademark is “Nike” and its very impressive “swoosh” trademark, since it doesn’t contain letters and is still recognized all over the world. Nike has registered the “swoosh” trademark and therefore has a strong legal right to prevent others from using a similar trademark in the same industries. Nike’s concern is that a similar trademark could confuse consumers into thinking that the infringing company is in fact Nike, which could both enrich the infringing company and compromise Nike’s strong reputation. When considering that it has taken Nike nearly 60 years to build a brand that some would consider synonymous with sports, it is no surprise that Nike will spend millions of dollars in legal battles to protect its reputation and brand image. At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions pertaining to intellectual property law, please contact intellectual property lawyer, Frank Shostack at 416-446-5818 or frank.shostack@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Intellectual PropertyDecember 30, 2019September 30, 2020
What happens when ex-spouses have opposing views on whether or not to vaccinate their children? This polarizing issue has become the subject of significant media coverage as anti-vaccine groups are becoming increasingly vocal. One father even launched a GoFundMe campaign in order to appeal an arbitrator’s decision that allowed the mother to refuse to vaccinate their children. The arbitrator cited the work of anti-vaccine activists to support his decision, and as a result, a number of experts have come forward to testify for free during the appeal of the decision. HOW HAVE THE COURTS QUALIFIED ANTI-VACCINE EXPERTS IN PAST CASES AND HOW HAVE CUSTODY ARRANGEMENTS BEEN DECIDED AS A RESULT? In G. (C.M.) v. S. (D.W.), 2015 ONSC 2201, the father, in this case, refused consent for his 10-year-old daughter to travel unless she was vaccinated. As a result, he brought a motion to change the joint custody order to sole custody when it came to medical-related decisions. The hearing went on to become a battle of the experts. The motion judge found that the mother demonstrated a “lack of objectivity and thoroughness of research” and went on to critique the experts she put forward for their dearth of objective facts, research and literature that was peer-reviewed. The motion judge also considered the evidence of the amicus curiae who pointed out that Canadian Public Health Policy is in favour of vaccinations which has led to the decline or elimination of potentially fatal illnesses. Their testimony was found to be based on many years of research and clinical participation in the field of infectious diseases. Furthermore, the Immunization of School Pupils, R.S.O. 1990, CHAPTER I.1, requires the immunization of school children unless exempted for religious beliefs or as a matter of conscience. In the end, the motion judge granted the father decision-making ability with respect to vaccinations and ordered the mother to no longer give the child negative information about vaccines. This decision was circulated and heavily cited by the judge in the Nova Scotia Supreme Court decision W. (P.) v. M. (C.), 2017 NSSC 91. The judge, in this case, found that the mother’s rigid and inflexible approach when it came to vaccinations demonstrated an inability to make medical decisions that were in the child’s best interests. As a result, the father was granted sole decision-making authority with respect to medical decisions, including vaccinations without the mother’s consent. Finally, in Di Serio v. Di Serio, 2002 CanLII 49568, the motion judge found that the father’s affidavit and book of authorities citing various anti-vaccine articles were not considered properly tendered evidence from a qualified expert. The mother called the children’s family physician to provide an opinion that they are in need of childhood immunizations and again the Immunization of School Pupils Act was cited. As a result, the motion judge found it was in the children’s best interests to be vaccinated. Based on the case law, it appears that the father appealing the arbitrator’s decision has a fighting chance in court. Unfortunately, since the decision was rendered, his two young children contracted whooping cough, an infection avoided by one of the standard childhood vaccinations. Proponents of both sides of the debate will surely be closely following and anticipating the decision’s release. For more information about decision making authority when it comes to the medical care of your children contact our family law group. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 20, 2019September 30, 2020
Our Child Has Come to Live with Me, How Do I Stop My Child Support Payments to My Ex? Child support payments are based on where the child actually lives, not where a Court Order or Separation Agreement says that they are living, or should be living. Since child support is the right of the child, it is also irrelevant as to why the child is residing in one place as opposed to another; child support goes to the parent with whom a child is primarily living with. However when a child’s situation changes, the Family Responsibility Office (FRO) does not have the authority to stop collecting child support. As with many instances within family law, there are various ways in which one can resolve a situation. If both parents agree that the child has changed homes, is not longer entitled to child support (note: child support does not always end when a child turns 18), or is living on his or her own, then they can write to the FRO and request a cease on further child support payments. Subsequently, the FRO will verify the information with each parent before honouring the request. Alternatively, the receiving parent can obtain a withdrawal form as a means of notifying the FRO. When a child changes residence, child support payments should not be terminated. The parent whom the child was living with initially, is now responsible for making child support payments. Because of this, some parents are reluctant to acknowledge that a child has moved. However, not paying child support, and not agreeing that you should stop receiving child support, is highly frowned upon in family court. Cases whereby one parent refuses to adhere to the guidelines, often results in having to sit in front of a judge. Only a judge can look at the circumstances and determine which parent should be paying support and how much (it is also possible to arbitrate those issues if both parents agree) The judge will inform the FRO on how to proceed. Many people may avoid seeking the appropriate change to child support because of the complexities of the family court’s procedures. The Ontario Government’s Child Support Online Recalculation Service only changes support when a support payer’s income changes in a particular way; it cannot change support because a child’s circumstances changed. Fortunately, there is a simplified court procedure for changing an existing support order. That procedure is based on the premise that there is no dispute about the facts of the case. Where a child has clearly changed homes, that fact should be clear to the Court. Ideally, when a parent serves a “Motion to Change Support”, that will be enough for the other parent to acknowledge the child has moved and agree to a change in support. A party who fails to acknowledge the obvious and is ultimately forcing a parent through the court process, can expect to pay the majority, or all, of the other party’s legal fees. Certified Specialist in Family Law John Schuman, has extensive experience assisting complicated child support and custody/access parenting matters. Contact John Schuman at 416-446-5869 or john.schuman@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawDecember 12, 2019July 5, 2023
More Changes to the Construction Lien Act Are Coming in 2019 Ontario’s new Construction Lien Amendment Act (the “Act”) has significantly overhauled Ontario’s construction law rules. While the first set of the amendments have already come into force (see our previous blog here), the second set of changes with respect to prompt payment, a new adjudication process and procedural rules are set to come into force on October 1, 2019. Prompt Payment The Act imposes some tight timelines for payments to contractors and subcontractors in situations involving both public and private contracts. Under the Act, outstanding amounts between an owner and contractor must be paid within 28 days of a proper invoice. Subsequent payments to subcontractors must be paid within 7 days that the contractor receives the payment from the owner. If the contractor was not paid within the 28 day period, the contractor can either pay out its subcontractors anyways or issue a notice of non-payment in the prescribed form. If the owner disputes a portion of the funds, the owner must still pay out the undisputed amount within 28 days. If the contractor only receives partial payment from the owner, it must still distribute the funds to its subcontractors within 7 days, either in full or rateably. The sending of a proper invoice triggers these timelines and payment cannot be made contingent upon certification or the prior approval of the invoice by the owner. The owner is required to comply with these timelines or provide a notice of non-payment within 14 days. The contractor must give a notice of non-payment within 7 days after receiving a notice of non-payment from the owner or, if the owner has not issued said notice, within 35 days from the date of delivery of a proper invoice. Any payments made outside of the timelines will have interest accrue at a specified interest rate (as per the Courts of Justice Act, s.127(2)). As an invoice triggers these timelines, the Act sets out what is contained in a proper invoice: the contractor’s name and address; the date of the proper invoice and the period during which services or materials were supplied; information identifying the authority (typically the contract) under which services or materials were supplied; description, including quantity, of the services or materials supplied; the amount payable for services or materials supplied and payment terms; the name, title, telephone number, and mailing address of the person to whom payment is to be sent; and any other information that may be prescribed by the contract. New Adjudication Process In an effort to facilitate the quick resolution of construction issues, the Act introduces a new interim adjudication process. The intention of the adjudication process is to allow parties to resolve issues while still pursuing the preservation/perfection of a lien under the Act. Parties are free to agree on any adjudication terms to be added to their agreement. Several types of disputes can be referred to adjudication, including, but not limited to, delays, set-offs, deductions, security, proper invoicing and the valuation of work, services and materials. The scope of the availability of adjudication is broad and includes “any other matter that the parties to the adjudication agree to.” Adjudicators are appointed from a Authorized Nominating Authority registry. Adjudicators cannot be appointed in advance and must be nominated only when a dispute has arisen. Delivering a Notice of Adjudication commences the process. Within 30 days of the Notice, the adjudicator must provide a written determination of his or her decision, with reasons. Adjudication decisions are binding in the interim and enforceable. As such, payment must be made as per the adjudicator’s determination within 10 days of the decision or else the amount is subject to non-waivable interest. The Act allows a party to suspend work as per an adjudicator’s determination but does not allow for the suspension of work until the adjudication is complete. Any decisions rendered outside 30 days are of no force or effect. If a party does not agree with the adjudicator’s determination, they are allowed to appeal it to the courts or an arbitrator as well as negotiate a written agreement varying the terms. Jurisdiction and Procedure As the Act will have an adjudication process, several provisions relating to jurisdiction and procedure will be repealed. For instance, leave for interlocutory steps is will no longer be required, lien and trust claims will be brought in a single action, and the requirement that a lien action must be commenced in the jurisdiction where the land is located will be removed. What this Means The laws with respect to construction in Ontario and elsewhere are changing. It is very important to consult an experienced construction law lawyer with respect to vetting your organization’s invoices, contracts and general practices. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction LawDecember 6, 2019July 5, 2023
When Does Negligence Become Criminal? The Criminal Code of Canada contains several negligence based criminal offences, including dangerous driving as well as failure to provide the necessaries of life. The broader offence of criminal negligence is contained at section 219 of the Criminal Code. Section 220 is the provision dealing with criminal negligence causing death. They read as follows: 219 (1) Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. (2) For the purposes of this section, duty means duty imposed by law. *** 220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. In the recent case of R. v. Javanmardi, the Supreme Court of Canada commented on the elements of criminal negligence offences, specifically criminal negligence causing death. In the Javanmardi case, a naturopath in Quebec provided a patient with an intravenous injection of nutrients. The patient ended up suffering endotoxic shock and subsequently died. The naturopath was charged with the offences of criminal negligence causing death and unlawful act manslaughter. At trial the judge acquitted the naturopath of all charges, as they felt the actions of the accused did not show a wanton or reckless disregard. The trial judge felt that the naturopath had the necessary skills to administer injections, had followed sufficient protocols and had taken adequate caution in the case. The Quebec Court of Appeal disagreed and felt that the intravenous injection was inherently dangerous and the conduct of the naturopath was a marked departure from reasonable standards. The Court of Appeal convicted the accused of unlawful act manslaughter and ordered a new trial on the charge of criminal negligence causing death. In their decision, the majority of the Supreme Court of Canada assessed the fault element of the offence of criminal negligence – specifically when does an accused’s act or omission “show wanton or reckless disregard for the lives or safety of other persons”. They confirmed that this offence imposes a modified objective standard of fault. It is the objective reasonable person standard. The Court outlined that, “As with other negligence-based criminal offences, the fault element of criminal negligence causing death is assessed by measuring the degree to which the accused’s conduct departed from that of a reasonable person in the circumstances.” The level of departure may vary with each offence – for criminal negligence causing death it is the elevated standard of marked and substantial. However, these standards all ask “whether the accused’s actions created a risk to others, and whether a reasonable person would have foreseen the risk and taken steps to avoid it if possible”. In this case the Supreme Court upheld the acquittals of the trial judge. The Court felt that the actions of the accused met the reasonableness standard. They concluded that the factual findings of the trial judge supported the conclusions that an intravenous injection, performed properly by a naturopath qualified to administer such injections, did not pose an objectively foreseeable risk of bodily harm in the circumstances. Of note, particularly for naturopaths and other professionals, the Supreme Court of Canada outlined that the professional training and qualifications of an accused were factors to be considered in assessing the applicable standard of care for criminal negligence. The Court viewed these factors as particularly relevant considerations in assessing whether the conduct of an accused departed from that of a reasonable person in similar circumstances. If you have been charged with a criminal offence, or have questions pertaining to a similar situation, contact criminal defence lawyer David M. Schell of Devry Smith Frank LLP directly at (416) 446-5096, or alternatively, at david.schell@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Criminal LawNovember 28, 2019July 5, 2023
Ontario Has a New Construction Act: What You Need to Know About the Transition Period On July 1, 2018, the first set of changes under Ontario’s Construction Lien Amendment Act (the “Act”) came into force. This Act overhauls Ontario’s construction regulatory framework. Not only should the changes be made note of by Ontario businesses in the construction sector, but the implementation of similar legislation is expected to follow in other provinces. The legislation was enacted after a 2016 report from the Ministry of the Attorney General called Striking the Balance: Expert Review of Ontario’s Construction Lien Act made 100 recommendations for modernizing Ontario’s Construction Lien Act. On May 31, 2017, the Ontario legislature passed the Act (Bill 142) adopting almost all of the recommendations in the report. The first amendments that came into force were those modernizing the construction lien and holdback rules as well as the alternative financing and procurement provisions. The second set of amendments deals with prompt payment, a new adjudication process and procedural matters (to be discussed in a subsequent blog) and will come into force on October 1, 2019. Transition Provisions It is important to note that the new Construction Act primarily applies to prime contracts that were entered into after the legislative provisions come into force. The old version of the Construction Lien Act still applies if the prime contract was entered into prior to the changes coming into force (regardless of when any subcontract under the contract was entered into), if the procurement process was commenced by the owner prior to the changes coming into force or if the premise is subject to a leasehold interest and the lease was first entered into prior to the amendments coming into force. Preservation and Perfection of Liens Prior timelines with respect to liens were often not workable given common delays in paying invoices in the construction industry. The Act extends the deadline for preservation of a lien to 60 days (from 45 days) and the deadline for perfection of a lien to 90 days (from 45 days) from the last day which a lien could have been preserved. This extension allows parties to have more time to negotiate payment as well as to utilize the new adjudication process, coming into force on October 1, 2019. What is lienable has also changed: prior to the amendments, the definition of improvement included general repairs. Now, the legislation has narrowed the term to a “capital repair” that extends the “normal economic life” of the land. While this may seem like a minor one word addition, the result is that true ordinary maintenance is expressly not considered to be an improvement and does not give rise to any lien rights. The definition of a “price” under the Act has also changed so that a lien can include any direct costs incurred by the contractor as a result of the delay, but “direct costs” excludes any indirect damage suffered such as a loss of profit, productivity or opportunity as well as any head office overhead costs. Holdback Payments The Act has also significantly modified the law with respect to holdback payments. It is now mandatory for an owner to release the statutory holdback funds once the lien period has expired, unless the owner publishes a notice of non-payment within 40 days of the certificate of substantial performance and notifies the contractor of the publication of the notice of non-payment. In reality, the new provision requires the owner to have a bona fide reason to refuse to release the holdback as an unjustified refusal would raise the material risks of disputes and liens as the 40 day period occurs prior to the expiry of the lien period (see above). Moreover, the Act now allows for the release of holdback payments on an annual basis or upon the occurrence of milestones or phases. This can occur if the following conditions are met: The contract provides for an annual or phased release of accrued holdback; The contract price is over the prescribed amount (currently set at $10,000,000)(not applicable for the design phase); The contract time is scheduled for over one year, or provides for work to be completed in identified phases; and There are no liens registered that have not either been vacated or discharged at the time the accrued holdback is to be released. There are also new duties imposed on contractors, subcontractors and owners as trustees of trust funds. In particular, trustees are required to deposit the price they received on their contract/subcontract price to a bank account in the trustee’s name. Moreover, they must maintain written records of the trust funds and keep all information regarding transfers in and out of the trust. In addition, the Act has limited a trustee’s right to set-off. Previously, the Construction Lien Act allowed for a trustee to set-off money owed for any outstanding debt or damages whether or not related to the improvement. Now, the right to set-off must be related to the specific improvement. Alternative Financing and Procurement Prior to the amendments, there was uncertainty about who was the owner on projects where a special purpose company contracts with a public sector entity to undertake a specific project. Now the Act deems the special purpose company to be the owner and the contract between the company and the contractor will be deemed to be the contract with respect to the provisions relating to substantial performance, calculating the lien period, certification of substantial performance, and information requests under the Act. For all other purposes the Crown, municipality or broader public sector organization who owns the premise continues to be the owner under the new Act. What this Means The laws with respect to construction in Ontario and elsewhere are changing. It is very important to consult an experienced construction law lawyer with respect to vetting your organization’s invoices, contracts and general practices. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction Law, Corporate LawNovember 27, 2019July 5, 2023
Can I Still Claim my Bonus even though I was Wrongfully Dismissed? This blog is co-written by our former articling student, Janet Son. In Andros v Colliers Macauley Nicolls Inc, the Ontario Court of Appeal recently addressed the issue of whether a wrongfully dismissed employee is eligible to receive a payment in lieu of bonus throughout the common law notice period. If the bonus is non-discretionary and an integral part of the employee’s compensation package, damages for wrongful dismissal include bonuses earned in the year of termination, on a pro-rata basis, plus a payment in lieu of bonus throughout the common law notice period. In this case, the respondent worked for the appellant, a large commercial real estate company. He left for other employment, however he returned and was promoted to the position of Managing Director, which included a base salary and a yearly bonus. In the last three years of his employment his base salary was $142,500 and his bonuses were $79,228.25, $127,933.80 and $49,757.51 respectively. The Court found that the bonus was non-discretionary since he received the bonus every year and his employment agreement included both the base salary and bonus entitlement in the compensation section. Further, the Court concluded that the bonuses were integral to the employee’s compensation, given the bonus amounts. The appellant argued that the employee was not entitled to any further bonus payments, because there was a term in his employment contract which stated that only employees who were in “good standing” were entitled to bonus payments. The Court applied the test from Paquette v TeraGo Networks Inc. to this case. 1. First, determine the employee’s common law right. Where the bonus is such an integral part of the respondent’s compensation, there is a common law entitlement to the bonus that the employee earned or would have earned. 2. Second, whether there is something in the bonus plan that removes the employee’s common law entitlement. In arriving at the decision to award the employee a payment in lieu of bonus throughout the common law reasonable notice period, the court addressed the inherent unfairness in a scenario where the notice period expires the day before the date on which the bonus would be payable. As a result, the employee would get no part of the bonus that they earned throughout the course of their employment during that year and the notice period – which the Court concluded would be unfair to the employee. However, an employer can contract out of the requirement to pay a portion of a yearly bonus for a partial year of service or throughout the common law notice period if this is set out clearly in the employment contract or bonus plan. If you are unclear as to whether you are entitled to your bonus in a wrongful dismissal claim, contact human rights and employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Employment LawNovember 21, 2019July 5, 2023
The Home Inspectors Act to Provide more Protection for Homebuyers This blog is co-written by our former articling student, Janet Son. The weather is cooling down but the Toronto housing market saw double digit growth this past month. During the frenzy of home buying, due diligence is necessary and hiring the right home inspector could be forgotten from the long list of to-dos. This can be a costly mistake as a negligently conducted home inspection could cost the buyer thousands of dollars in unexpected repairs. The Ontario Association of Home Inspectors does regulate its approximate 500 members, however membership is voluntary. In total, there are approximately 1500 home inspectors in Ontario; however anyone can call themselves a home inspector and buyers could rely on them to make the biggest financial purchase of their lives. Ontario has recently passed the Home Inspection Act, 2017 (the “Act”) to regulate home inspectors and is predicted to come into force in 2020 after the regulations have been drafted and proclaimed. The Act will create minimum standards when it comes to the licensing and regulation of home inspectors in Ontario. Once in effect, individuals cannot conduct home inspections without a registered license and liability insurance. Requirements will include education, training and adherence to a code of ethics. Formal contracts with the buyer or seller will also be required prior to conducting a home inspection. And once the inspection is concluded, a report must also be provided. The Act also provides for a complaints and disciplinary mechanism so that clients can report a negligent licensee. The registrar will have the authority to mediate in order to resolve complaints, provide written warnings, require licensees to take further educational courses or refer the matter to a discipline committee. Once at the discipline committee stage, the licensing body will have further powers to impose a maximum fine of $25,000 if a licensee has failed to comply with the code of ethics. As a home buyer, once you have the building inspector’s report, it is advisable to bring it to a real estate lawyer for review. If there is a leaky basement, there are a number of different courses of action that can be taken. You can insist that the repairs be made before closing, negotiate an abatement, prepare a repair fund in advance, or move on to the next home. If you would like more information on how to protect yourself as a home-purchaser, please contact Jennifer Hetherington at 416-446-5838 or at jennifer.hetherington@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Real EstateSeptember 27, 2019July 5, 2023
What is a Continuing Power of Attorney for Property? A Continuing Power of Attorney for Property is a legal document in which you can appoint a person or persons to act on your behalf (called an “Attorney”) with respect to your property and financial affairs. The document will allow them to make decisions for you if you become incapable of managing your financial affairs. *The term “Attorney” refers to the person or persons you have chosen to act on your behalf. He or she does not have to be a lawyer. WHO YOU CAN APPOINT AS YOUR ATTORNEY FOR PROPERTY You can choose anyone you want as your Attorney as long as he or she is eighteen (18) years of age or older. You can also choose multiple people to act. If you appoint more than one person, you can state that the Attorneys are to act “jointly” or “jointly and severally”. If the Attorneys are appointed “jointly”, this means that they will be required to act together at all times. If the Attorneys are appointed “jointly and severally”, this means that either of the Attorneys named can act independently. If you name the Attorneys “jointly”, the advantage is that there is always a second person “double checking”. A disadvantage of naming the Attorneys “jointly” is the lack of flexibility – say, for example, if one Attorney is temporarily unavailable because of vacation, the available Attorney will not be able to make any decisions without the second person. APPOINTING A TRUST COMPANY AS YOUR ATTORNEY FOR PROPERTY Some people prefer to appoint trust companies (many of the big banks offer trust services) because they are professional and impartial. WHAT HAPPENS IF THE PERSON YOU CHOSE IS DECEASED, IS INCAPABLE, OR DOES NOT WANT TO ACT AS YOUR ATTORNEY FOR PROPERTY? If two or more Attorneys act jointly under the Continuing Power of Attorney and one of them dies, becomes incapable of managing property, or resigns, the remaining Attorney or Attorneys are authorized to act, unless the power of Attorney provides otherwise. If only one primary Attorney was named, you can name a substitute Attorney, and the substitute can act. DATE OF EFFECTIVENESS OF THE POWER OF ATTORNEY FOR PROPERTY We generally recommend that the Power of Attorney give your Attorney legal authority as soon as the document is signed. However, you can specify otherwise in the document. For example, some people only want the document to be effective upon a specific date or specific event (such as the Attorney obtaining a letter from your family physician which states that you are mentally incapable and cannot manage your property). An advantage of giving your Attorney legal authority as soon as the document is signed is that your Attorney will not need to go through formal processes to prove to third parties, such as banks, that the Power of Attorney has come into effect. IS MY ATTORNEY ENTITLED TO COMPENSATION? Your Attorney is entitled to take payment at a rate set out by the law, unless you say otherwise in the Power of Attorney for Property. If you want to prohibit your Attorney from taking any payment or you want to set a specific amount yourself, you can do this by including specific instructions in the Power of Attorney for Property. FIVE FACTORS TO CONSIDER WHEN CHOOSING WHO YOU SHOULD APPOINT AS YOUR ATTORNEY FOR PROPERTY Choosing an Attorney for Property is an important decision as that person will have full access to your money and other property. Trustworthiness Is the person honest? Do you know the person well enough or long enough to trust them? Will this person act in your best interest? Does the person have personal issues such as financial or health concerns that may interfere with the management of your property? Reliability Can you rely on this person? Experience Does the person understand financial matters? Availability Does the person have the time to handle your financial matters? Is the person readily available and easy to contact? Does the person live nearby? Willingness Is the person willing to take on the responsibility? Does the person understand the duties and responsibilities involved in being your Attorney? For further information or to schedule a consultation regarding powers of attorney in Ontario please contact Vanessa Romanino of Devry Smith Frank LLP at 416-446-3348. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Wills and EstatesAugust 22, 2019July 10, 2023
I Want to move Provinces However, I am Aware That I’d Need the Permission of My Child’s Father to Do So. But, can My Child’s Father Move Without My Permission? If you, as a primary parent, want to move, you would need your ex’s permission because naturally, moving will interfere with him parenting your son. However, if he moves, then he will be interfering with his own time with your son, and, presumably, that will not affect your time with the child(ren). However, if he is moving away anyway, then it will be hard for him to deny you permission to move because your moving will not affect him or his time with your son, If you were emigrating to another country, then he might have a reason to oppose. However, chances are if he is moving considerably further away from that he may not be able to continue to see your son on weekends, then there is no reason to oppose you moving. Deciding whether to permit one parent to relocate with the child(ren) is one of the most difficult dilemmas judges face and they consider a lot of factors in deciding whether to allow a parent to move away with the child/ren. The most important of these factors and perhaps the only one the judge will care about when drawing upon a decision is what is in the best interest of the child. If your ex-partner refuses to give you permission to move, then you should explore the option of beginning family court proceedings without delay. Without your ex-partner’s consent, you cannot relocate with your child/ren and a judge could order you to return with the child/ren. – There are consequences for preventing access to the other parent and it would be, in most cases, impossible for a lawyer to predict, with certainty, how a judge will decide a “mobility case” – each case depends on its own specific facts. Having said that, your ex-partner may even have to pay some or all of your legal fees, if his reason for opposing your move is deemed unreasonable. Furthermore, a parent having to spend an excessive amount to exercise access is one of the few bases on which a judge can reduce child support below the Table Amount in the Child Support Guidelines. That may not impact your decision to relocate after all, but it is something to consider. It is certainly more problematic for a parent to ask for a reduction of child support because of travel costs if the parent freely relocated and chose to incur those costs. For more information regarding divorce, property division, marriage contracts or any other family law-related topic, contact Toronto family lawyer John Schuman at 416-446-5080 or John.Schuman@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMarch 13, 2019July 5, 2023
