has authored 81 articles.
New online workshops are now live! Learn about legal foundation topics online, for free.There are new reporting requirements for all corporations incorporated under the Ontario Business Corporations Act (OBCA), that went into effect in December 2016 under the Forfeited Corporate Property Act, 2015.When negotiating a contract, it is important to consider the termination provisions. If the contract is no longer commercially attractive, will you be able to terminate?Whether you (the client/customer) have an obligation to pay when a contract has been terminated depends on the reason for termination, the timing of the termination, which party terminated the contract, and the terms of the contract. Mostly, it depends on what the contract says!Companies of every type are falling victim to intentional breaches of the...A Quebec court ruled that an action for damages based on a defamation claim fell within the scope of a very broadly worded arbitration clause, because the sources and circumstances of the impugned statements originated from the contract and made reference to its requirements. Note that this was not a consumer contract.Termination of Agreement Effective Even though Payments not Enforced. See this instant case of Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc. 2000 CanLII 22663 (ON SC).Termination of Agreement does not Require Consent of Both Parties. See instant case of Contech Enterprises Ltd. v. Vegherb, LLC 2015 BCCA 99 (CanLII).An Ontario Superior Court decision determined that a dispute resolution provision was not ousted by the 'Notwithstanding anything to the contrary in this Contract' language in a termination provision. See instant case of Bombardier Transportation Canada Inc. v Metrolinx 2017 ONSC 2372 (CanLII).Drafters should ensure that disclaimers are included in reports/contracts where appropriate, and that they are clearly and comprehensively drafted.The legal remedies available under assignment are not extinguished even if legal action has been taken under a promissory note dealing with the same obligation, so long as the debt continues to exist. See instant case of Rafael v. Allison 1987 CanLII 3232 (AB QB).Confidentiality Agreement Between Two Corporations Found to be Personally Binding on an Independent Contractor.A court held that when the parties have clearly expressed their intention to submit disputes to arbitration, a party cannot opt out of the arbitration clause unless the contract expressly provides for this. See instant case of Okanagan Pellet Company Inc. v. Pinnacle Pellet Inc. 2012 BCSC 207 (CanLII).The Supreme Court of Canada upheld the Court of Appeal for Ontario's decision and dismissed an Ontario action on the basis of a governing law clause. See instant case of Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd. (2012 SCC).A Forum Selection Clause in a Commercial Contract Should be Given Effect Unless Party can Show Strong Cause that the Case is Exceptional. See instant case of Expedition Helicopters Inc. v. Honeywell Inc. 2010 ONCA 351.Substantial Connection Test Applies if Contract does not Contain a Governing Law Clause. See Lilydale Cooperative Limited v. Meyn Canada Inc. 2015 ONCA 281 (CanLII).The Federal Court of Appeal used the governing law clauses in maritime supply contracts to determine the law governing the contracts, in spite of the fact that maritime liens are extra-contractual rights. See instant case of JPMorgan Chase Bank v. Lanner (The) [2009] 4 FCR 109, 2008 FCA 399 (CanLII).In determining what law should apply to a contract when the contract does not specifically state the applicable law, the courts will conduct an inquiry to ascertain the implied intention of the parties. See instant case of New Holland (Canada) Credit Company v. MacPherson 2003 CanLII 23201 (ON SC).Entire Agreement Clause can Preckude an Action in Tort for Negligent Misrepresentation. See instant case of No. 2002 Taurus Ventures Ltd. v. Intrawest Corp. 2007 BCCA 228 (CanLII).The Supreme Court of Canada held that parties are not free to exclude general duties of contract law, so entire agreement clauses cannot exclude general duties related to unconscionability and honesty in contractual performance. See the instant case of Bhasin v. Hrynew [2014] 3 SCR 494, 2014 SCC 71 (CanLII).Limitations of liability clauses and entire agreement clauses can be unenforceable because of unconscionability. In determining whether the clause is unconscionable a court will look at various factors such as the sophistication of the parties, the disparity in bargaining power and information, and failure to bring the clause to the attention of the party with less bargaining power.Trial Required to Properly Interpret Ambiguous Limitation of Liability Clause. See instant case of Astellas Pharma Canada Inc. v. WellSpring Pharmaceutical Canada Corp. 2008 CanLII 46324 (ON SC).If a termination clause is clearly worded and its meaning is clear and enforceable, the courts will likely apply the parol evidence rule with the result that a party whose contract is terminated will be unlikely to be able to establish that the termination clause was modified by a collateral contract.A conditional, incomplete or vague assignment clause will not be enforced by the courts even between a subsidiary and parent company. A parent company that seeks to rely on the assignment of a contract cannot base its legal rights on the informalities that exist between it and the subsidiary. See instant case of KJM Leasing Ltd. v. Toronto-Dominion Bank 1989 CanLII 4646 (SK QB).Consumer Protection Legislation does not Necessarily Relieve an Assignor from the Obligation to Honour a Guarantee to Pay an Assignee. See instant case of C.L. Hagan Transportation Ltd. v. Canadian Acceptance Corp. [1974] SCR 491, 1973 CanLII 151 (SCC).In this case, the court implied that even though the defendants (who had been principals in the company) had obtained access to emails through the administrator's password of the company's email account, the emails had not lost their confidential nature.This article looks into the Edac Inc. v. Tullo case to determine whether the improper disclosure of confidential information always results in damages.This article highlights a case wherein DVD is treated as a confidential information.Drafters need to ensure that confidentiality agreements entered into with experts require the expert to give notice to the disclosing party if the expert may be called upon to give expert evidence in a proceeding.Contractual Liability for Breach of Data Security not Covered by Insurance Policy. See instance case of Aldo Group Inc. c. Chubb Insurance Company of Canada 2013 QCCS 2006 (CanLII).Every system of government must balance individual privacy and rights, against state control. Where the lines are drawn determines what type of society we live in.The article discusses three factors to consider in a Software Development Master Services Agreement.In the world of fashion, the label changes everything. In the world of legal (drafting) fashion however, lawyers, being human, will of course look at the headings, and must resist being influenced by them.This article discusses the possible implications of including a confidentiality clause in an employment contract.We see what we expect to see, and the fashion industry has been making $ billions exploiting this principle. In the world of fashion, the label changes everything. In the world of legal (drafting) fashion however, lawyers, being human, will of course look at the headings, and must resist being influenced by them.This article discusses the risks of using internet sourced NDA contracts rather than hiring a lawyer.How has legal technology affected you? This is the third perspective in a three part series."How has legal technology affected you? This is the first perspective in a three part series.This article discusses the employee benefits of a stock option plan or agreement.This article discusses the option of "paying with shares" which allows startups to offer their employees to purchase shares in the company in lieu of a raise.This article outlines five essential considerations for startups.Business partners tend to come and go. It is important to know your rights when it is time to part ways with your business partner.This article discusses what is needed for a non-competition clause to be enforceable, specifically if 5 years is too long for a non-compete to be enforceable.Are you starting a business related to law, accounting or medicine? These high risk fields often operate as a 'Limited Liability Partnership' (LLP).This article describes how to protect specific confidential information, within or in addition to a Confidentiality Agreement.This article discusses the advantages of an NDA, and key information to review before signing.This article discusses the advantages of using an NDA.What happens when leased equipment is installed in a rental property, and the tenant fails to pay the rent? The answer can depend on whether the equipment has become a ‘fixture’.Businesses today have become increasingly reliant on software as a service (SAAS) provided by other corporations. What happens if the SAAS contract is suddenly terminated or not renewed?Entrepreneurs and investors are rightly concerned about what rights attach to their shares, and what mechanisms are in place to protect those rights - these concerns are highlighted in a recent Ontario court decision.Every season has its own charm. In North America, December brings...shopping! But January brings...bills. Credit cards and ‘buy-now-pay-later’ plans have made it ever-so-easy to spend more than we earn, so interest rates can have a huge impact on consumer finances.Do you ever get annoying emails from companies you’ve never heard of? Or continuous emails from a company you once agreed to receive an email from years ago?Everyone loves a good deal! But how do we know if the deal is really a deal? Many of us rely on the integrity of the retailer, and trust that the advertised discount is actually a discount.Are you trying to use the web to reach out to as many people as you can to build your business? - Not so fast! Canada’s new anti-spam legislation (“CASL”), which came into force July 1, 2014, creates restraints on your ability to do this if you are sending commercial electronic messages (“CEM”).The other day I was at the library with my 10-year old son. I bumped into a bookshelf next to the children’s section and a book fell to the floor. I picked it up and was surprised to note that the book was an introduction to the topic of powers of attorney, written for the general public. As I glanced through it a title caught my eye: 'If powers of attorney are important, why do so few people have them?' Why indeed?This article provides an overview of Canada's Anti-Spam Legislation.If a spouse operates or owns a family business, one strategy to protect that business would be to enter into a marriage contract that contains a waiver by the non-owner spouse of the owner spouse’s interest in the business.Parties to a marriage contract cannot waive their obligations to provide support for their own children.If a social media site wants to attract attention or encourage community participation, it may consider giving API licences to third parties. This way, passionate members can transform their ideas into reality and benefit the application.The consideration given for non-competition agreements is often access to confidential information.Providing payment for a product before the transfer of title can make for a more efficient...The place of receipt for online products can be confusing since the transaction is made in a v...While it seems obvious that billing and payment of expenses should be clearly dealt with in consulting contracts, many parties fail to address some key details.This article discusses the implications of probationary periods in employment agreements.People who marry later in life and have accumulated assets (or debts) or are entering second marriages and have experienced the process of an acrimonious division of assets, are among those who may benefit most from a marriage contract. The question often posed is, 'Will this contract actually protect my assets or income?'A good settlement agreement should clearly defines the effect the agreement will have on future and current claims, and whether it applies to all claims between the parties, or only those claims arising out of a particular agreement or set of circumstances.Multi-tiered dispute resolution clauses may be enforceable if the procedure is certain, mandatory language is used, a clear time limit is provided before arbitration is available and duties to act 'in good faith' to resolve the dispute are in the context of a clause.Some may think entering into marriage contracts is a recent trend. However archeological evidence shows the contrary: marriage contracts have been around for quite some time - since ancient Egyptian times!This article discusses the importance of keeping agreements confidential in relation to technology.This article discusses confidentiality terms with reference to a recent case out of Massachusetts, .When drafting a distribution agreement, the parties should ensure that each party has the right to terminate the agreement under certain circumstances.Consulting agreements are often structured carefully to make it clear that the nature of the relationship is not an employment relationship, but a consulting relationship.The APA should contain clear provisions allocating responsibility for taxes. Parties should also be familiar with the tax laws applicable to their transaction, particularly if it could be argued that the transaction had no practical economic effects other than the creation of income tax losses.This article discusses whether or not third party experts should enter into Consulting Ageeements.Where a commercial lease agreement so provides clearly and unambiguously, a guarantor can continue to be a guarantor upon the renewal of the lease.It is important for parties to understand their rights and obligations in standard commercial leases. Strictly speaking, tenants cannot expect to enforce any guarantee not contained in the lease.Parties may wish to add closing conditions to a share purchase where part of the value of the shares/securities that are being purchased results from an action yet to be taken by the company.This article discusses ten (10) common mistakes in the drafting of a distribution agreement.Parties to an asset purchase agreement may avoid unpleasant surprises with respect to title transfer issues if every asset, or category of assets is carefully itemized in a schedule to the agreement.This article points out that when parties enter a distribution agreement, it is prudent to take extra precautions to protect intellectual property.Drafters of commercial lease agreements should beware when drafting the minimum rent clause. An option to renew an agreement can oblige the landlord to offer to renew for the original (lower) rent, although the rental market may have increased.