Here’s my top 10 for 2009:

1. Avatar (hands down, one of the best films ever made)

2. District 9

3. Star Trek

4. Watchmen

5. The Hangover

6. Inglorious Basterds

7. Up

8. Up in the Air

9. Drag me to Hell

10. 9

FYI, “Moon” was also very good (it would have been #11).

written by admin \\ tags: top 10 films of 2009

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to  resolving tax disputes, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Canadian tax lawyers and attorneys skilled and experienced in tax law.  Feel free to make a post on Dynamic Lawyers (it’s 100% free and anonymous) .

Many Canadians may be in a tight spot with the Canada Revenue Agency ["CRA"]: they haven’t filed their taxes, have hidden income, have claimed ineligible expenses, have made misrepresentations on past tax returns, or have otherwise evaded paying taxes.  They’re worried about the CRA discovering and prosecuting them with interest and penalties (including criminal sanctions!).  What can they do?

Well, the CRA has a Voluntary Disclosure Program ["VDP"] which allows, in certain circumstances, taxpayers to voluntary admit their tax delinquencies in exchange for an amnesty (which involves a negotiation to settle their tax disputes).  This VDP is available for income taxes and goods and services tax.  Sounds too good to be true?  Well, there are a number of tips and traps that you should be aware of – and I’ll try to shed some light on them in this blog.

What’s the Process
The VDP process begins with the taxpayer completing a CRA form and attaching it to a disclosure submission and any supporting documentation.  These documents must be be writing and mailed or faxed to the local tax services office (i.e. where the taxpayer resides).

In order for the disclosure to be valid for the VDP, it must be voluntary, complete, involve a penalty, and include information that is more than one year overdue. Each of these elements will be examined in greater detail below and in the next blog…

If the disclosure is accepted by the CRA, the taxpayer will have to pay taxes owing plus interest, but will not be subject to penalty or prosecution for amounts accepted as a valid disclosure.

If a taxpayer disagrees with the CRA’s decision, a taxpayer can request a review (either by contacting the Director of the tax services office or through a judicial review).

Voluntary
The CRA says that, for you to come forward voluntarily, you must not be under investigation.  So if you were subject to or had knowledge of an audit, investigation, or enforcement action, then you won’t be entitled to the VDP.  What’s an enforcement action?  Well, the CRA says it includes:

• requests, demands, or requirements issued by the CRA, relating to unfiled returns, unremitted taxes/installments, deductions required at source or non-registrants;
• requests, demands or requirements which have been issued with reference to other tax accounts of the taxpayer, partners of the taxpayer or corporations associated with or related to the taxpayer;
• direct contact by a CRA employee for any reason relating to non-compliance (e.g. unfiled returns, audit, collection issues); and/or
• an audit, investigation or other enforcement action by another authority or administration, such as, but not limited to, a police force, securities commission or provincial authority.

Importantly, the CRA says: “The CRA request-to-file is an enforcement action relating to all unfiled returns for that taxpayer.”  The CRA reiterates that view here: “although the aforementioned actions may only pertain to one specific year or reporting period, the procedure will be considered to be an enforcement action, for purposes of the VDP, for all taxation years or reporting periods”.

In the next blog, I’ll talk about the other requirements that are part of the VDP…

written by admin \\ tags: canadian income tax, voluntary disclosure program

So it’s often the case that people want an answer.  Good.  Quick.  Cheap.  Unfortunately, you often get what you pay for.  And a little ounce of prevention can end up saving a pound of pain.  I’ve had lots of clients who have horror stories about receiving bad advice or the wrong advice from professionals – be they lawyers, accountants, trustees in bankruptcy, consultants.  The bottom line is that the starting point for practically any matter is GETTING A LAWYER TO REVIEW YOUR SITUATION AND RENDER YOU AN OPINION.

What is a legal opinion?  Well, it’s basically a memo that reviews the facts, cites the applicable law and tries to build conclusions (e.g. what grounds can you sue on, what is your best defence, what risks are you exposed to, etc.).  There can also be practical suggestions built into the legal opinion, such as when and where to take certain action (e.g. suing, contracting, etc.).  There can also be an element of strategy, which lawyers deal with on a day to day basis.

Many, many people looking for a lawyer simply expect lawyers to know the law off the top of their heads without understanding the full facts and then render a legal opinion.  It seems like these people only want to hire a lawyer after they’ve received the advice!  But no lawyer worth his or her salt would be willing to give advice or an opinion without first reviewing the full facts.  This could entail sitting down with and interviewing the client.  Looking over paperwork.  Making some phone calls and sending out some letters.  This is the investigative stage.  You can’t jump straight into negotiating or suing or defending without knowing the facts and where you stand legally.

So do lawyers charge for a legal opinion?  You better believe it!  Lawyers charge based on their time (typically).  A lawyer cannot pay their bills or earn a living without spending their valuable time thoroughly reviewing your situation and giving you the advice you need in a timely manner.  That advice could say something like “here is your whole case…” or “you shouldn’t proceed with this because…” or “here are some legal issues to consider…”, etc.

So my overall point is that you should, in any legal situation, start off with KNOWING WHERE YOU STAND.  No lawyer worth his or her salt (note: this depends on what practice area is involved) will do this for free or quickly.  You need your lawyer to do a good job.  You need to know where you stand.  Spend the money.  A typical legal opinion generally costs between $1,500-$3,000.

Many posts which appear on Dynamic Lawyers come from everyday folk who are confused as to where they stand.  They need a lawyer, but don’t know how to proceed.  So here I am (a GTA LAWYER) telling you what you should be asking for: A LEGAL OPINION!

Save yourself aggravation, time, and wasted money: get an opinion first from a competent lawyer before doing anything more.   Be strategic and think about it clearly.  You are the driver but you need to know the rules in order to be on the road.  Your lawyer will show you the rules and the way, but you’re in control (always) of the car.  Remember that…

written by admin \\ tags: legal opinion, save time and money, strategy

So the Supreme Court mentioned bloggers in a recent decision on defamation law.  That’s a big deal.  The case is Grant v. Torstar Corp.  The case involved defamation law.

What’s important here is not so much the facts of the case or the outcome of the decision, but rather what the Supreme Court observed about bloggers when it comes to defamation.

In a nutshell, the Supreme Court observed that bloggers engaged in public communication on matters of public interest could have a viable defence against defamation lawsuits.  That defence was called “responsible communication on matters of public interest“.  The Supreme Court held that this defence will apply to media (and bloggers) where:

A. The publication is on a matter of public interest and

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff’s side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.

The Supreme Court commented that this defence is, absent good reason, available to anyone who publishes material of public interest in any medium.  So there you have it: bloggers and other online social media personalities are on the same page as traditional media when it comes to this new defence.

written by admin \\ tags: bloggers, blogging, defamation, grant v. torstar corp, supreme court of canada

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to buying or selling a dental, medical, pharmacy or other health-related business, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your professional corporation.  I should know – I’m one of them and you can contact me directly (michael@carabashlaw.com).

I’m going to shift gears here now and start talking about asset purchases instead of share purchases.  Here’s the situation: you’re a doctor, dentist, pharmacist, physiotherapist, chiropractor, etc. and you’ll looking to buy the assets of an existing practice.  You don’t want to simply buy the shares because there may be hidden liabilities or because you want a clean / fresh start.  So where to begin?

It’s all about Conveyancing!

Well, in an asset purchase, unlike in a share transfer, you’ll need to prepare a lot of conveyancing documents.  This could, for example, include a bill of sale for inventory, an assignment of lease / trademark / employee / license agreement(s), an agreement of purchase and sale for real property, etc.  You may also need third party authorizations and consents for these transfers.

Tax Implications?

There may be tax implications on the transfer of the assets.  For example, if both parties to the asset purchase / sale agree, they can jointly elect not to pay any GST under the Excise Tax Act on the transfer of all or substantially all of the assets used by the business.  You should contact a lawyer or an accountant for more information on this.  Furthermore, if you’re acquiring certain depreciable capital property, you’ll want to know what your cost base is and what you can deduct (as an expense) as a capital cost allowance each year.

Lawyer / Agent Fees

There may also be additional costs that appear in the form of lawyer or agent commissions and registration fees (e.g. assigning a trademark, assigning a lease agreement, transferring real estate).

What’s the Deal Really About?

When you’re looking to buy assets, your primary concern is that the assets belong to the seller (i.e. the seller has clear and free title to them) and that the seller is capable of transferring the assets (i.e. they have all power, capacity, authority, consent, etc. to do so).   This will come out in representations, warranties, and indemnities agreed to by the seller, as well as documentary review title searches on the part of the purchaser’s lawyer.

Employees

Simply because you’re buying assets doesn’t necessarily mean that you won’t become the DEEMED employer of the old business’ employees!   The Ontario Employment Standards Act, 2000 says for example:

9. (1) If an employer sells a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee shall be deemed not to have been terminated or severed for the purposes of this Act and his or her employment with the seller shall be deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.

So if the assets of a dental practice are sold and the purchaser employs a dental hygienist or receptionist of that old business, then that person’s employment is deemed to have continued under the purchaser.  Unless otherwise agreed to by the purchaser, seller, or employee, this could affect the purchaser when it comes to things like salary, notice periods for termination, bonuses, and severance!

written by admin \\ tags: agent commissions, asset purchase, asset purchases, assignment of lease, business lawyers, buying and selling assets, conveyancing documents, dental corporation, dental health, excise tax act, medical corporation asset purchase, medical pharmacy, share transfer

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to buying or selling a dental, medical, pharmacy or other health-related business, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your professional corporation.  I should know – I’m one of them and you can contact me directly (michael@carabashlaw.com).

This blog is a continuation of my previous blog about buying and selling a health practice (e.g. dental, medical, pharmacy, physiotherapy, etc.) through a share transfer.

In this blog, I’m going to be talking about a few important issues that will come into play in a share transfer:

• Liabilities
• Employees
• Representations and Warranties
• Non-Competes
• GST

Remember: these are just some of the issues that will come up in a share purchase.  You should make a post on Dynamic Lawyers or contact me directly if you need a lawyer to help you go through this process.

So here we go…

Liabilities
I’ve been saying it all along: if you’re buying shares of a health practice, you’re buying all the assets AND LIABILITIES of that practice.  You need to pay attention here because there may be hidden liabilities that you don’t know about.  These liabilities could relate to things like money owed to current or former employees, unpaid utilities and taxes, leases, pending investigations, court awards or fines for professional negligence or occupier’s liability, etc.  The bottom line is that you should know what you’re getting yourself into.  You need to know about environmental hazards (if any) and make sure that all the books and records are up to date with the Canada Revenue Agency and other government authorities.

Employees
When you’re buying shares of a corporation, you’re inheriting all the liabilities and contracts that existed at the time leading up to the transfer (unless those contracts say otherwise).  That means that the purchaser inherits the employees and obligations to them.

Representations, Warranties, and Indemnifications
In a share purchase, you’ll want to make sure that the corporation has title to all of its assets, that it has disclosed all known liabilities, and that it is capable of transferring the shares to the purchaser (i.e. all necessary authorizations and approvals have been obtained).  To this end, the purchaser’s lawyer should review the corporate minute book.  If you need a lawyer to do this for you, feel free to contact me at michael@carabashlaw.com. The purchaser will want to make sure that the books and financials are up to date to avoid unforeseen or hidden liabilities owing, for example, to the Canada Revenue Agency.  So the purchaser will want the seller to make representations that this is the case and also to indemnify the purchaser in case it is not.  If there are issues concerning hidden liabilities, the purchaser should ask that some portion of the purchase price be held back until a certain period of time has passed or an event has occurred so that such monies can be used to offset potential damage resulting from those hidden liabilities.

Non-Competes
I have blogged extensively about non-compete clauses and agreements here (Introduction), here (Justification) and here (Too Vague).

GST
Generally, with the share transfer itself, the parties won’t pay taxes because shares are considered financial instruments (which are an exempt supply).  That said, the purchaser will want to see that GST has been paid up to a certain date (prior to the closing) and will request a GST Clearance Certificate.  This will show the amount of GST liability that is outstanding, if any, by the corporation up to a certain date.

written by admin \\ tags: buy sell dental practice, buy sell doctor office, share trnasfer health practice

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to buying or selling a dental, medical, pharmacy or other health-related business, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario business lawyers registered on the website who can answer your questions or help you with your professional corporation.  I should know – I’m one of them and you can contact me directly (michael@carabashlaw.com).

This is part of a series of blogs I’ll be writing about buying and selling health businesses in Ontario.  In this blog, I’ll be talking about what happens in a share transfer.

The idea is simple: you are buying or selling the shares of a corporation.  The business of the corporation could be a medical, dental, physiotherapy, or chiropractor practice.  To transfer the shares, you’ll need a share transfer agreement.  This is an agreement that governs the transfer of shares between the parties.  Both parties will execute this agreement.  From here, there will be a few more documents that need to be signed off on in order to effect the transfer, such as:

• resolutions and approvals authorizing the transfer (e.g. from the directors)
• issuance of new share certificates
• updated registration of the transfer in the corporate minute book and with the respective government body
• third party consents (if applicable)

Remember: you can contact me if you need a business lawyer to facilitate a share transfer (michael@carabashlaw.com).

Generally, share transfers require that the shares being transferred are owned by the seller and can be transferred.  There may be restrictions on share transfers that will require authorization or consent from third parties.  That’s why the Articles, By-Laws, Shareholder’ Agreements, etc. need to be reviewed by a lawyer!  You’ll also need to look at the legislation that governs a PROFESSIONAL health corporation because it may have limitations on who can hold or acquire shares of a professional dental corporation or a professional medical corporation (or other professional health corporations).  If you’re dealing with a professional health corporation, then you’ll need to update the Certificate of Authorization granted by, for example, the Royal College of Dental Surgeons of Ontario or the College of Physicians and Surgeons of Ontario.

From here, you just need to record the share transfer and notify all parties of the transfer.

Finally, there will be tax implications on the purchase and sale of shares.  For example, the seller may be able to use their lifetime capital gains exemption to pay less (or no taxes).  I’ve previously discussed this in my last blog about buying and selling a health practice.  Therefore, it’s important to engage an accountant in addition to a lawyer to make sure that everything is kosher.

written by admin \\ tags: buying and selling health business, buying and selling professional health corporation, dental corproation, professional health corporation

Remember: if you are looking for a pardon, record suspension, or U.S. Entry Waiver, try a Canadian Pardon | Record Suspension Service.

So in this blog, I’ll be touching briefly on something that affects many people with a Canadian criminal record: trying to enter the U.S.

It’s a dreaded moment.  You fear the worst.  What do they know?  Can they see your criminal record?  What if you lie?  What if you are in the process of getting a pardon?  What if you already have one?  What if they ask you about your pardon?  What should you say?

These and other questions are dealt with in my book on criminal records in Canada, which is set to come out next year.  But for now, I’ll try to shed some light on the issue of traveling to the U.S. with a Canadian criminal record.

The bottom line is that, if you’re not a U.S. citizen or status Indian and you have a criminal record, you may be denied entry under the U.S. Immigration and Nationality Act.  That Act is long and complicated.  Don’t bother trying to go through it yourself.  All you need to know is that that Act makes people with criminal convictions INADMISSIBLE into the U.S.  The only way to get around this inadmissibility is to either fight the decision through the U.S. justice system (way too expensive and time-consuming for most) or obtain a U.S. temporary entrance waiver.

So what makes you inadmissible?  Well, there’s lots of different categories you could fall under because of your criminal record but the biggest two are convictions for drug related crimes and crimes involving moral turpitude.  Convictions for drug related crimes can be as simple as possessing marijuana and being convicted of it 30 years ago.  But what about crimes involving moral turpitude or CIMT?  Well, that’s a whole can of worms in itself, as you probably guessed.  Basically, because that term is undefined, there is a whole slew of cases from administrative and judicial bodies over the years that have commented on what it actually means.  I won’t get into the complicated details here (you can read my book when it comes out).  You just need to take my word that it is confusing and sometimes frustrating.  For example, drunk or reckless driving is generally not considered a CIMT.  Neither are common assault, breaking and entering, firearms violations, incest or libel.  But the more serious types of offences are CIMT, such aggravated assault, arson,  murder, prostitution, sexual assault, fraud, forgery, and blackmail.  For a list of what is and what isn’t considered a CIMT, check out the U.S. Department of Foreign Affairs Manual Volume 9 – Visas.  Be warned, however: this may not be current or complete.  You should always check with Canadian Pardons to find out the latest on whether your criminal past will prevent you (at least initially) in being admitted into the United States.

If you’re inadmissible, then you can still try to get a U.S. Entry Waiver to be allowed to enter.  These are legal documents that allow you to enter for a temporary time.  The application process is complicated and may run you a few hundred dollars to have an agent or lawyer or Pardons Canada to do all the paperwork for you.  It could take up to 1 year to do.  Remember: don’t try doing these things yourself.  You could make a mistake very easily.  It’s an emotional roller coaster.  You may have questions or concerns.  It’s best to leave it to the professionals!

written by admin \\ tags: crimes involving moral turpitude, criminal record at border, drug related offences, entering us with a criminal record, entry waiver, inadmissible to the United States, pardons, us entry waiver

Remember: if you are looking for a pardon, record suspension, or U.S. Entry Waiver, try a Canadian Pardon | Record Suspension Service.

Canadian pardon services like Canadian Pardons can help you remove your criminal record.  Sometimes, depending on what your criminal record is made up of, you won’t need a pardon.  As discussed in previous blogs, pardons are required where you are convicted of a federal offence (e.g. a crime or a drug-offence).  If you were acquitted, the charges were dismissed / withdrawn, there was a stay in proceedings, you entered into a peace bond, etc., then you won’t need a pardon.  What you need here is to request a file destruction from the police service that charged you.  You shouldn’t try this yourself!  If you read my previous blog, you should be SCARED STRAIGHT into not trying to erase your own criminal record.  Rather, you should get Canadian Pardons to represent you and contact the various partners in the justice system on your behalf.  Also, if you received a conditional or absolute discharge, you won’t need a pardon.  These things are automatically removed from criminal record databases, but you should still get Canadian Pardons to confirm that the charging police service has also destroyed / purged your file if you received an absolute or conditional discharge.

What else do pardon services in Canada do for you?  Well, they know which forms you need.  They know who needs to be contacted.  Importantly, they know which steps need to be taken and in what order.  For example, they’ll tell you that, if you have a criminal record that can be pardoned and want to travel to the U.S., you’d better not go to the border before you get that pardon.  Why?  Because once you’re at the border being investigated by the U.S. Customs and Border Patrol, they can download and forever keep a copy of your Canadian criminal record.  Even after you get a pardon, the U.S. will still have a copy of your past criminal record which they downloaded.  They don’t recognize Canadian pardons!  But if you have received a pardon before going to the border, those border officers wouldn’t see anything when they ran a search on you.  You see now?  Pardon services can help guide you through the maze of a process to remove your criminal record.  They can also provide reference letters to important decision makers (e.g. employers, Canada Customs and Immigration) to let them know that you are in the process of removing your criminal record.  This could make all the difference: some people are removed from Canada as a visitor, temporary or permanent resident, convention refugee, etc. because of their Canadian criminal record. If, however, you can show that it’s being removed and time is on your side, then you may be able to avoid being removed or may be able to come back sooner!

written by admin \\ tags: canada pardon, canadian criminal record, canadian pardon services, criminal record, criminal record in Canada, pardon services canada, pardons canada canada pardon

Remember: if you are looking for a pardon, record suspension, or U.S. Entry Waiver, try a Canadian Pardon | Record Suspension Service.

So you want to know more about pardons and you can’t wait until my book comes out next year?  You’ve probably read my previous blog about pardons.  Well, then I guess I ‘ll give you a few tidbits about pardons that will dispel SOME myths…6 of them to be precise (in this blog at least).

First, you don’t need a pardon to remove your criminal record in all cases.  For example, if you were acquitted, then you won’t be convicted and you won’t need a pardon.  Instead, you’ll need to request a file destruction from the police service that charged you with the offence.   This may do this upon request after a few months or automatically after a certain period of time elapses.

Second, a pardon doesn’t remove your criminal record in all places automatically.  A pardon is governed by a federal law: the Criminal Records Act.  That Act applies to federal institutions.  Part of the process of getting a pardon, however, is to inform and communicate with provincial police / courts and municipal police forces.  This way, when a pardon is issued or granted, those non-federal entities will also refuse to divulge a criminal record that has been pardoned.  It’s best to correspond with and confirm with the various partners in the justice system that may have a copy of your criminal record that your record has in fact been removed and is inaccessible.

Third, when you are issued or granted  a pardon, it will NOT say on your criminal record that you’ve received a pardon.  However, there is an exception: if you’ve been pardoned for an offence of a sexual nature (listed in the Criminal Records Act), then there will be an indication when certain criminal record checks are conducted which show this.

Fourth, a pardon doesn’t erase your criminal record.  I talked about this in greater detail in my previous post.

Fifth, most people who apply for a pardon correctly are granted or issued one.  What’s the difference between being granted vs. issued?  Well, if you’ve been convicted of less serious crimes and you apply for a pardon and have complied with all requirements, then the National Parole Board will automatically ISSUE you a pardon.  This is a non-discretionary act.  If, however, you’ve been convicted of a serious crime and you apply for a pardon, then the National Parole Board has the discretion to GRANT you a pardon after carefully reviewing your application.  It has no obligation to do so.  In fact, these types of pardons take longer to process and more paperwork may be involved.

Sixth, you may think you can do your own pardon, but you’d be a fool to do so.  The process is neither straightforward, nor easy.  It’s like trying to do your own taxes, but it takes up to 2 years to do them, you have to deal with multiple parties (e.g. police, courts, RCMP, National Parole Board, etc.), you can screw up quite easily (e.g. by failing to submit a complete and accurate application or by doing something in the wrong order), and there’s a lot of emotional and psychological turmoil that you’ll need to relive.  That’s why it’s recommended to speak with an agency like Canadian Pardons which has the knowledge, skills, and experience to help you get your pardon and remove your criminal record.

written by admin \\ tags: canadian pardon, criminal pardon, criminal records in canada, pardon, pardon my criminal record, pardon services