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 Ontario Not-For-Profit Corporations, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto and Ontario not-for-profit lawyers registered on the website who can answer your questions, represent you in litigation, or help resolve a dispute.  I would know – I’m one of them and you can contact me directly - michael@carabashlaw.com.

Follow up on other blogs I’ve written about Ontario not for profit corporations, I thought it would be worth discussing what happens if there is an internal dispute concerning an Ontario Not-For-Profit Corporation. Take the following example.  The By-Laws (power-giving documents)  say something or fail to say something about a specific procedure – for example, procedural requirements that must be followed for holding a member meeting or having members vote for a board of directors.  At the end of the day, someone (e.g. a director, officer, or member) cries foul for procedural irregularity and are contemplating court action.  The question comes up: how have Ontario courts responded previously when faced with these types of matters?

Basically, Ontario Courts dealing with disputes about procedural irregularities involving not-for-profit corporations have observed that:

• Courts will be loathe to interfere in the internal working of not-for-profit corporations absent some demonstrated evidence that any procedural irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority.
• Courts will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.
• The relationship between a not-for-profit corporation and its members is contractual: only in certain circumstances, or where there are contractual rights created by the not-for-profit corporation’s by-laws, will the member be able to enforce their rights under the law.
• It is only for a not-for-profit corporation (and not a court) to determine its corporate governance documents. Courts should not get generally get involved in the internal governance matters of a not-for-profit corporation.

What follows is a brief summary of the past cases where Ontario courts have made decisions concerning internal governance disputes of not-for-profit corporations.  You are cautioned again not to rely on these cases (as they may no longer be good law and may not apply to your particular situation) and to seek professional help by making a post on Dynamic Lawyers (or contact me directly - michael@carabashlaw.com).

In Lee v. Lee’s Benevolent Assn. of Ontario, [2004] O.J. No. 6232, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants primarily claimed that some ballots were cast in advance of the election date. There was nothing in the corporation’s by-laws permitting the advance voting. While Nordheimer J. admitted that this caused an irregularity in the election, he did not accept this irregularity as invalidating the election. Indeed, he held that, notwithstanding this technical failure, there was no evidence or suggestion that the votes so cast did not reflect the wishes of the voters. He went on to state:

12 Non-profit organizations such as the Association should not be required to adhere rigorously to all of the technical requirements of corporate procedure for their meetings as long as the basic process is fair. Nor should the court be too quick to grant relief in such circumstances that may only serve to encourage a disgruntled member of such an organization to seek such relief. Absent some demonstrated evidence that any irregularities went to the heart of the electoral process or lead to a result which does not reflect the wishes of the majority, the court should be loathe to interfere in the internal workings of such groups.

The last sentence of this passage has been adopted by subsequent Ontario courts.

In Warriors of the Cross Asian Church v. Masih, (2007) 87 O.R. (3d) 169, members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Specifically, the applicants claimed that no written notice of the meeting had been provided and no ballots had been used at the meeting to take the vote. Lederer J. found that the election of the board members did not comply with the Corporations Act and was therefore not valid. Citing the ruling in Lee v. Lee’s Benevolent Assn. of Ontario, Lederer J. held that the error in the instant case “goes to the very heart of an election” and ultimately ordered that the not-for-profit corporation be would up for its failure to adhere to the requirements of the Corporations Act.

In Rakowski v. Malagerio, [2007] O.J. No. 369, the member of an Ontario not-for-profit corporation (the Humber Students’ Federation) brought an application to challenge the validity of a policy which prevented directors from being members of non-sanctioned student associations or advocacy groups. Perell J. dismissed the application, finding that the not-for-profit corporation’s policy was reasonable, non-discriminatory and not contrary to public policy and the public interest, and that the policy had been enacted in good faith. Although the Humber Students’ Federation is a corporate entity, Perell J. commented that it was similar to an association or club and offered the following observations about why the court’s jurisdiction in the affairs of associations and clubs is problematic:

29 Traditionally, courts have expressed reluctance and sometimes a refusal to interfere with the internal affairs of associations and clubs. There are a variety of reasons for this attitude. One reason is that the nature of the relationship of the members of an association is intentionally designed by the members of the association to be informal and non-legal. Just as some promises are intended to be contractual and some are not, persons may decide to associate in informal ways that are not meant to call for judicial supervision. The courts tend to respect these choices. Another reason is that the legal classification of these associations does not fit neatly into the recognized categories of legal entities. Yet another reason is that there may be little the court could do if it assumed jurisdiction and the only solutions or remedies might rest with the members of the club or association.

30 The case law, however, reveals that courts do get involved in the affairs of associations and clubs. Sometimes, the court will decide a matter involving an association because the jurisdictional issue was simply not raised by the parties, who wished an answer from the court or did not appreciate that perhaps the matter of the dispute was non-juridical. Sometimes, the court will become involved if a principle of natural justice is breached. Here, one classic class of examples is the situation where a member of a club or association is expelled from the club or association or is temporarily or permanently disqualified from participating in its activities or is disciplined for breach of the club or association rules and the process of expulsion, disqualification, or discipline is fundamentally unfair. The courts will exercise a limited jurisdiction to ensure that an association or club does not violate the principles of natural justice. Sometimes, the court will become involved because the nature of the unincorporated association has evolved to be a legal entity that may be regulated by the courts at least for some purposes. This evolution appears to have occurred for trade unions; see: Berry v. Pulley, [2002] 2 S.C.R. 493 and registered political parties; see: Ahenakew v. MacKay (2004), 71 O.R. (3d) 130 (C.A.). Sometimes, the courts will become involved because, upon analysis, the court finds that the relationship between the members that constitute the association or club is contractual in nature and that the law of contract affords a basis for the court’s common law jurisdiction. Sometimes, there are special statutory provisions that empower the court with jurisdiction, and sometimes the members of the association or club circumvent the problem by relying on rules of civil procedure or legislation that authorizes the court to interpret documents or statutes and to make declarations.

In Alaimo v. Di Maio, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged irregularities in the conduct of an election of directors and sought to invalidate that election. Boswell J. dismissed that claim in light of the test set down by Nordheimer J. in Lee v. Lee’s Benevolent Assn. of Ontario and followed by Lederer J. in Warriors of the Cross Asian Church v. Masih. Boswell J. reviewed the evidence and held:

128 From a procedural point of view, therefore, there were no irregularities identified by the Applicants in their evidence that appear to me to be of a significant nature, and certainly none that could be described as going to the heart of the election.

In Polish Alliance of Canada, Branch 43 v. Polish Alliance of Canada, 2008 CarswellOnt 3729 (Ont. S.C.J.), members of an Ontario not-for-profit corporation alleged procedural irregularities in respect of a mortgage being registered against the corporation (among other things). Specifically, the members complained that they had not received notice of such mortgage and no resolution had been passed at the general convention prior to the mortgage being registered. The members wanted the corporation’s board to be suspended, a new annual general meeting convened, and full financial disclosure provided. Referencing Lee v. Lee’s Benevolent Assn. of Ontario and Warriors of the Cross Asian Church v. Masih, J.A. Thorburn J. held that:

21 The Court may resolve disputes regarding the affairs of a not-for-profit corporation where the process followed by the corporation is not a mere technical irregularity but is unfair and the results go to the heart of the process.

J.A. Thorburn J. ultimately ruled that the request for relief was premature as internal mechanisms provided by the corporation’s Constitution had not been exhausted. As such, he adjourned the proceedings pending the members’ exhaustion of the internal dispute resolution procedures.

In Sahaydakivski v. YMCA of Greater Toronto, [2006] O.. No. 1368 (Ont. S.C.J.), the YMCA of Greater Toronto expelled a member for breach of its by-law caused by his unbecoming conduct. The member brought an application for an order setting aside his expulsion, restoring his membership, and requiring the YMCA of Greater Toronto to disclose the name of the complainant. The member’s application was dismissed on the basis that the officers of the YMCA of Greater Toronto had exercised their authority to expel the member in accordance with their by-laws and in good faith. Belleghem J. wrote:

30 The court will not intervene on any finding of fact made by the [YMCA of Greater Toronto], provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association.

In McGee v. Beaver Valley Ski Club, 2006 CarswellOnt 2537 (Ont. S.C.J.), a member of a not-for-profit social club sued the club after being suspended for a period of one year following disciplinary hearings concerning his participation in certain municipal planning matters. Tulloch J. dismissed the member’s claim on the basis that the club had acted properly and in accordance with its by-law. In reaching that conclusion, Tulloch J. commented that:

39 In Conacher v. Rosedale Golf Assn., 2002 CarswellOnt 527 (Ont. S.C.J.), the court held that the relationship between a private club and a member is a contractual relationship. Only in certain circumstances, or when there are contractual rights created by the club’s by-laws, will the member be able to enforce rights under the law.

…

44 The Conacher decision was followed by a recent decision of this court, Sahaydakivski v. YMCA of Greater Toronto, 2006 CarswellOnt 2205 (Ont. S.C.J.). In this case, Justice Belleghem dismissed the applicant’s request to set aside his expulsion from the respondent organization. Justice Belleghem noted the following:

…

30 The court will not intervene on any finding of fact made by the respondent, provided that in arriving at its finding it complied with its own by-law, i.e. it carried out its contractual obligation to the applicant not to expel him except in accordance with by-laws to which the applicant acceded upon his entry into the association…

…

47 I find that the disciplinary proceedings were conducted properly, and in accordance with the BVSC by-law…

49 In a matter such as this, where the plaintiff is a voluntary member of an organization governed by a contractual relationship between the parties, my review of internal decisions made by the organization is limited.

In Chu v. Scarborough Hospital Corp.,[2007] 35 B.L.R. (4th) 254 (Ont. Div. Ct.), members of a not-for-profit corporation requisitioned a special meeting under the Corporations Act and the corporation’s By Law 1. The corporation’s board refused to call the meeting on the basis that those individuals’ memberships had expired. The members brought an application to have their memberships recognized. They were initially successful and Brown J. of the Ontario Superior Court of Justice ordered the board to forthwith call the special meeting. The board appealed Brown J.’s decision. Linhares de Sousa JJ. of the Divisional Court upheld Brown J.’s decision and dismissed the appeal. In coming to that conclusion, Linhares de Sousa JJ. stated:

20 …the jurisprudence clearly establishes that the by-laws of non-share capital corporations incorporated pursuant to the Corporations Act, like the case at bar, constitute contractual obligations as between the members and the corporation (see Senez c. Montreal Real Estate Board, [1980] 2 S.C.R. 555 (S.C.C.), p. 7 and Sahaydakivski v. YMCA of Greater Toronto, [2006] O.J. No. 1368 (Ont. S.C.J.), paras. 28-30). Both the corporation and individuals who become members of the corporation undertake to comply with the constating documents and the by-laws, which are duly adopted by a majority of members entitled to vote, even if they disagree with those by-laws.

…

22 …the jurisprudence mentioned earlier also establishes that the Court will not intervene with determinations made by a non-share capital corporation in accordance with its by-laws provided the corporation does not demonstrate bad faith or act contrary to the rules of natural justice.

In Seong v. Korean Canadian Cultural Assn. of Metropolitan Toronto, [2007] O.J. No. 893 (Ont. S.C.J.), members of an Ontario not-for-profit corporation were split into factions regarding whether the corporation’s headquarters should be sold and new premises acquired. The situation became very confusing due in part to uncertainty and conflicts between the corporation’s Constitution, official by-laws, and proposed amendments to those by-laws. On these issues, Perell J. held that there was no reason for the court to intervene in the corporation’s internal affairs. He stated that the corporation does not need the court’s assistance to determine the authority of its own governance documents and that the court should not involve itself in the various internal governance affairs of the corporation (e.g. concerning amendments to the official by-laws, conflicts between governing documents, etc.). Some of Perell J.’s statements are noteworthy here:

44 …the Association does not need the court’s assistance to determine what legal status to give to the Constitution. All the Association need do is decide this matter itself in accordance with the provisions of the Corporations Act.

45 While the court may have a jurisdiction to interpret the corporate documents, it is not for the court to write the governance documents of the Association.

46 Moreover, it appears that the Association is attempting to write its own rules of governance by the enactment of amendments to the official by-laws. These amendments are to be put to the membership at the upcoming annual general meeting. The court should not get in the way of this effort and involve itself in the internal affairs of the Association.

…

49 In any event, this matter is an internal matter for the Association, and, standing alone, this matter would not justify the court ordering a special meeting of the members.

…

55 …ultimately these matters have to be resolved by the Board passing by-laws, which is already happening, and I do not see any reason for the court to get involved in these internal governance matters at this time.

58 …the matter of properly constituting a single board of directors will be resolved by the upcoming elections and annual general meeting of the members of the Association.

written by admin \\ tags: board of directors, corporation without share capital, electoral process, internal dispute, irregularities, litigation, ontario corporation without share capital, ontario not for profit corporation, procedural irregularities, procedural requirements, professional assistance, rules of natural justice

I thought it would be worthwhile to outline some tips when it came to legal drafting that I often educate my clients on.  This shows why legal kits aren’t as good to protecting your rights and promoting your interests as an experienced lawyer is – particularly when you need to negotiate the terms and conditions of an important agreement.  So, without further adieu, here are my 10 big tips:

1. Organize your thoughts. I have a general rule about this: 1 idea per sentence, 1 idea per paragraph.  Keep things simple and make sure it flows naturally.
2. Use clear language. I can’t say this enough.  If you have the option of using lots of words to get your thoughts across, it’s likely going to get confused.  You’d better cut up your sentence into clauses and then make those clauses separate sentences, each expressing only 1 idea.
3. Know your audience. At the end of the day, your contract – for it to mean anything – must be capable of being enforced through litigation.  Therefore, write your contract with a judge in mind.
4. Anticipate concerns. There are lots of things you may not realize could impact the interpretation of your agreement at the time you write it.  Try to anticipate those situations by looking for precedents and asking around.
5. Use precise language or wishy-washy language to suit your needs – just realize when to use it! If you’re a commercial tenant, you may want to use very loose language when it comes to the types of businesses you can operate in the leased premises (to give you flexibility); you may also want very broad language when it comes to an exclusivity clause which restricts te landlord from leasing out adjacent premises to competing businesses (so more types of businesses are captured).
6. What are the consequences? If your intention is to create an enforceable agreement, then you should spell out the consequences of breaching the agreement or a specific provision therein.  Also, you should – when it is to your benefit – indicate WHO is the decision maker when it comes to things like breaching the document.  By this, I mean: if there is an alleged breach, then under the agreement, final decision-making authority for making that call is Party X.  This puts the power in that party’s hands.
7. Less is more. You’ve heard it before, but it’s still worth repeating: use smaller words, smaller sentences, smaller paragraphs, smaller everything to get your message across.  Too many words and things get messy.  Also, if you have the option of using smaller words to get the message across, use them!
8. Don’t use legalese unless you know what it means! Legalese is comprised of archaic words and phrases that only lawyers should be bothered with deciphering.  They often have specific meanings which are beyond the knowledge or understanding of the lay person.
9. Leave room for amendments later on. Sure, you might not get everything you wanted down in one shot, so just make a provision in your agreement that things can change through mutually agreed upon (in writing) amendments.
10. Keep learning! There are always new techniques to better legal drafting so research them by reading books, articles, etc.

At the end of the day, if you need a Toronto or Ottawa lawyer, just go to Dynamic Lawyers and make a post of your legal drafting wants, needs, etc.

written by admin \\ tags: lawyer, legal drafting, litigation

There are over 17,000 individuals in Toronto who can call themselves a Toronto attorney.  Each Toronto attorney typically has his or her own specialty.  The day of the general practitioner is not as it once was (and is slowly fading away).  In fact, specialization is a preferred strategy to earn above-average returns in any given industry.  Besides, think of how hard it would be for a lawyer who ‘does it all’ to keep up to date with the changing laws in every given legal area.  It’s way too difficult and that’s where negligence cases may arise.

In any event, I thought I’d spend some time discussing the various types of Toronto attorneys that you can come across on a day-to-day basis.  Here’s the first breakdown of types of Toronto attorneys (please keep in mind that this list of the types of lawyers out there is not exhaustive):

• Toronto Real Estate Attorneys: help you buy and sell residential, investment, farm, cottage, recreational, condominium, and cooperative properties.  They also you get a mortgage financing and refinancing as well.

• Toronto Personal Injury Attorneys: help you litigate, settle, or otherwise resolve claims arising from:
  • accident benefits claims
  • dog bites
  • disability claims
  • medical malpractice
  • motor vehicle accidents
  • negligence actions
  • personal injury claims
  • product liability
  • slip and falls

• Toronto Business Attorneys: help you to incorporate and organize, merge/amalgamate, and dissolve your business.  They can help prepare, review, interpret, revise, negotiate, litigate, and resolve the following business documents:
  • shareholder agreement
  • partnership agreement
  • joint venture agreement
  • franchise agreement
  • commercial leases
  • business acquisitions
  • regulatory compliance
  • constructions contracts
  • employment agreements

• Toronto Wills and Estates Attorneys: they offer services from a basic will and powers of attorney  to more complicated tax-planning structures, such as inter-vivos trusts and estates freezes.  They can also help personal representatives in the administration and distribution of estate assets.  Finally, they can litigate on behalf of beneficiaries or the estate trustee on issues such as mental capacity of the testator, validity of a will, etc.

• Toronto Family Attorneys: they can help you with your marriage breakup by drafting a separation agreement.  They can also help you with issues such as divorce, spousal and child support, child custody, possession of the matrimonial home, and the equalization of net family property.
  

• Toronto Criminal Defense Attorneys: they can help represent you against government bodies that have charged you with criminal or provincial offences (e.g. careless driving), including:
  • DUI (driving under the influence)
  • assault
  • sexual assault
  • fraud
  • theft

written by admin \\ tags: accident, accidents, agreement, attorneys, beneficiaries, business, business acquisitions, commercial leases, contracts, criminal, custody, defense, Dynamic Lawyers, family, franchise agreement, fraud, incorporation, incorporators, injuries, injury, investment farm, joint venture toronto personal actions, law, lawyer, lawyers, liabilities, litigants, litigation, marriage, mentality, negligence, negligence cases, negotiating, Negotiations, offence, partnership, personal injury claims, practitioner, preferred strategy, property, revisions, separation, shareholder, shareholders, shareholdings, testator, toronto, toronto attorney, toronto attorneys, toronto business, toronto real estate, Wills and Estates

Toronto law firms can help answer your legal questions, facilitate your transaction (e.g. business, real estate, wills and estates, family, etc.) or even represent you in court.  To find a Toronto lawyer or law firm, go to Dynamic Lawyers and make a post.  It’s free and anonymous and Toronto lawyers and law firms will respond to you with information and quotes for you to compare.

Here are some of the different types of law that Toronto law firms can assist you in:

• Accidents and Injuries: Involved in an accident where you suffered personal injury?
• Business: Need corporate or commercial agreements? Need to have a lawyer help you do a transaction?
• Charities and Not-For-Profit: Need to establish a Not-For-Profit corporation or obtain charity status?
• Civil Litigation – Higher Court: Have a serious legal claim that needs to be litigated in the Superior Court, Divisional Court, etc.?
• Civil Litigation – Small Claims Court: Have a legal claim (e.g. breach of contract, negligence, etc.) for less than $10,000?
• Constitutional / Human Rights and Freedoms: Challenging a law or government action / inaction?
  Criminal: Charged with a criminal offence? Appealing a conviction?
• Employment and Labour: Need an employment agreement? Unjustly terminated? Need to know your rights?
• Family: Going through a separation or divorce? Fighting to get custody or access? Dealing with spousal and child support?
• Government: Need to lobby the government? Need to resolve a dispute with a government agency?
• Highway Traffic Tickets: Charged with speeding or DUI? Need to fight traffic tickets?
• Immigration: Need to immigrate to Canada? Fighting against deportation?
• Insurance: Having difficulties with your Insurance company?.
• Intellectual Property: Need to register a copyright or trademark? Need help with a patent?
• Landlord and Tenant: Need a resolve a dispute? Need to know your rights?.
• Notary Public / Commissioner: Need to notarize or commission your documents?
• Real Estate: Need someone to facilitate your residential or commercial purchase, sale, or lease?
• Tax: Need help structuring your tax affairs? Need help resolving tax disputes with the Canada Revenue Agency?
• Wills, Estates and Trusts: Need a will? Need to update your will? Find out why having an up-to-date will is a must.

Try to consult with a couple of Toronto law firms and Toronto attorneys until you’re comfortable with whom you’re speaking with.  Toronto law firms differ in size, location, expertise, and reputation.  Go to Dynamic Lawyers and save time and money finding the right Toronto law firms and Toronto attorneys who specialize in the legal area you require!

written by admin \\ tags: accident, accidents, agreement, attorneys, breach, breach of contract, charity status, Civil Litigation, commercial agreements, commissioners, company intellectual property, contracts, conviction, corpor, corporation, court, criminal, criminal offence, custody, different, different types of law, divisional court, family, firms, government need, human rights and freedoms, injuries, injury, insurance, landlord and tenant, law, lawyer, lawyers, legal claim, litigants, litigation, money, negligence, notarize, notary, offence, publicity, purchaser, quotes, separation, small claims court, support government, toronto, toronto law firms, toronto lawyer, toronto lawyers, traffic, types of law, Wills and Estates

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 litigation, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

Keeping with our example of Explosion Proof Refrigerator Inc., the question may arise: who exactly can I sue if the explosion proof refrigerator I purchased turns out to be defective thereby causing losses and damages?  Well, let’s look at the options.  First, you may be able to sue the corporation itself, which is a separate and distinct legal entity from its directors, managers, employees, owners, etc.  Second, you may be able to sue the directors themselves or the officers who run the company on a day to day basis.  Third, you might think of suing employees, contractors, representatives, agents, etc. who worked or were employed by the corporation.  Finally, you may be able to sue – in limited circumstances – the shareholders of the corporation.  Those limited circumstances could include: the corporation was a mere agent or alter ego of the shareholders, the corporation was a sham/fraud, or the corporation was created to do something that would otherwise be illegal.

In any event, you should always speak to a lawyer to determine who you can sue and for what.  Basically, the lawyer will want to know (1) who can be blamed (2) for what and (3) if that party is culpable, will they be able to pay damages?  If a party like a low-level employee is incapable of compensating someone for damages (even though they may be to blame) it may not be worth suing them.  This means that the party is judgment proof.  Rather, the corporation with the deep pockets could be sued for vicarious liability, which attributes the liability of the employee to the corporation who employed him or her.

Suing the directors may be an option and one way to do it is through the governing business law legislation.  In Ontario, if the corporation (i.e. Explosion Proof Refrigerator Inc.) was incorporated under the laws of Ontario pursuant to the Business Corporations Act, then the directors will have to meet a standard of care in discharging their duties or else face getting sued.  That standard of care requires them to act honestly and in good faith with a view to the best interests of the corporation and to exercise the care, diligence, and skill that a reasonably prudent person would exercise in comparable circumstances.  Breach of this standard may result in director liability.

Finally, with respect to the shareholders, notwithstanding the aforementioned limited circumstances in which a person may be able to sue them, their liability is generally limited.  This means that piercing or lifting the corporate veil to expose the personal assets of the corporate shareholders is not easy.

written by admin \\ tags: Business Law, corpor, damages, deep pockets, educational purposes, ego, explosion proof, fraud, judgment proof, law legislation, lawyer, legal advice, legal entity, litigation, losses, pierce the ate veil, professional assistance, sham, shareholders, vicarious liability

Please note that the information provided herein is not legal advice and is provided for educational purposes only.   If you need legal advice with respect to how to write a will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

In this blog, I’ll discuss whether a person needs a lawyer to prepare their will.  The simple answer is no.  The longer answer is: it’s probably in your best interests to have a wills and estates lawyer to draft and/or review your will.

There are only a few things that are needed in order for a will to be valid, binding, and of full legal force and effect.  But if you don’t do these basic things properly, the will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc. (you get the point).

First, in Ontario, for a will to be valid, it must be in writing.  So says the Law Reform Succession Act.  The testator (i.e. the person making the will) must also sign the will before two witnesses, who must also acknowledge that this was done (in the presence of the testator).   The testator’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the will.  Neither of the witnesses can be beneficiaries (and this has been used to challenge wills before).  I say again:beneficiaries under the will must never witness the testator’s signature. While there may be other requirements for a will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the will as litigation-proof as possible.

First, a lawyer will deal with the issue of capacity – i.e. does the testator have sufficient mental capacity to enter into the will.  Does the testator understand the nature and consequences of the will or is their mentality affected by illness, age, etc.?

Next, a lawyer will try to make sure that the testator is not entering the will as a result of some duress or improper or undue influence from an external force.  The testator must enter the will voluntarily or else the will may be later contested.

Next, a lawyer will strive to ensure that all of the information-gathering is completed and due diligence has been conducted with respect to the testator’s income, assets, liabilities, and instructions.

Finally, a lawyer will use the appropriate language and precedents to give clear effect to the testator’s wishes and instructions.

For these reasons, it’s generally advisable to contact a lawyer (e.g. by making a post on Dynamic Lawyers) when you need to write or update your will.

written by admin \\ tags: beneficiaries, concluding words, consequences, do I need ato write a will, educational purposes, how to make a will, how to write a will, lawyer, lawyers, legal advice, litigation, mentality, professional assistance, proof, relationships, signature, simple answer, succession act, testator, thousands of dollars, two witnesses, will and testament, Wills and Estates, writing a will

Note: this is not legal advice. You are always cautioned to turn to a lawyer if you feel you need to (e.g. by making a post on Dynamic Lawyers).  I am only providing this information for educational purposes only.

The consequences for failing to comply with a costs order include having an action stayed, having pleadings struck, or the court making “such order as is just”: rules 57.03(2) and 60.12 of the Rules of Civil Procedure.  Rule 60.12 deals with interlocutory cost awards (e.g. arising out of interlocutory motions). The party seeking these results would need to bring a motion in order to ask for them. The exact consequence will be determined on a case by case basis.

At the present time, the leading case on the jurisprudence concerning rules 57.03(2) and 60.12 is Burrell v. Peel (Regional Municipality) Police Services Board.

In that motion, Master Dash held that, in deciding whether to stay the action or strike the pleadings, the courts must try to strike a balance “between on the one hand the rights of an indigent litigant to have his or her day in court without concern that access thereto will be denied because of unpaid interlocutory costs orders and on the other hand the rights of other litigants not to be faced with litigants who, using impecuniosity as a shield against the costs consequences of their actions, are free to ignore the rules and orders of the court”.

While courts are somewhat reluctant to deprive a worthy but impecunious litigant of the opportunity to have his or her claim adjudicated when it is not plainly devoid of merit, litigants are not free to ignore or flout orders of the court awarding costs against them. Finally, among the factors the court should consider in determining what result is just on a motion to dismiss an action against an impecunious litigant for failure to pay a costs award are the consequences that led up to the award of costs (e.g. were costs awarded to deter bad behavior or simply against a losing party to a motion brought or resisted in good faith and on reasonable grounds?).

written by admin \\ tags: Civil Litigation, consequences, court, Dynamic Lawyers, failing to pay costs, lawyer, lawyers, litigants, litigation, merits, s in Toronto, toronto lawyer

I am a sole practitioner with my own law practice here in Toronto (focusing on business law, lobbying, and litigation). I was surfing www.craigslist.org (a popular free classifieds website) earlier last year and noticed something peculiar: in the clutter of lawyer posts advertising their services on mass, a few individuals (i.e. non lawyers) had taken the initiative to actually post their legal problems online and seek legal advice. These individuals were onto something: they were leveraging technology to get quick and free answers from lawyers, including how much it would cost for a particular legal service. I responded to two of them and now they’re both my clients. This got me thinking: why not have a website dedicated to people posting their legal issues online and getting free information and quotes from local lawyers? So, with the help of two tech-savvy friends from business school, I set out to develop a website called Dynamic Lawyers that does exactly that. After months of hard work, the website officially launched in Toronto in November 2008.  Since launching, Dynamic Lawyers has been featured in the Toronto Star, Globe and Mail, CFRB1010 Radio, Toronto Sun, 24 Hours, Toronto Business Times, Law Times, and more are on their way…

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As with lawyers, the end of Realtors is often prophesized through the advent of sell-by-owner websites that cut out the 6% commission which Realtors and brokerages charge for a typical transaction.   The idea behind the website is simple: allow owners and sellers to negotiate a purchase and sale agreement for property without involving the middlemen.  This  trend has been ongoing for some time now and there are a number of websites dedicated to squeezing out Realtors, such as For Sale By Owner.

It is interesting to note that although this trend is currently being experienced in its infancy in the legal industry (i.e. where disruptive technologies like Dynamic Lawyers, automated document generation, etc. are making legal services more accessible, affordable, and expedient), there are many difference between Realtors and lawyers which would make Realtors in their traditional form much more obsolete and faster.

To begin, the barriers to entry to becoming a lawyer are much greater than they are to becoming a Realtor (which does not require years spent at university, articling, etc.).  Second, there is a real access to lawyer problem: affordable lawyer specializing in certain legal areas are somewhat hard to find (e.g. Lawyer Referral Service? YellowPages?  Friends and Family?  Who do you turn to?).  There is no such access to Realtors problem: everyone and their uncle knows of a realtor they can turn to in order to sell their home or help them buy a new one.  Moreover, Realtors spend an exuberant amount of money advertising their services in a cut-throat market.  Third, lawyers must often specialize in certain complicated legal areas which take years of experience and know-how to develop expertise in.  For the most part, all Realtors can provide the same basic services – whether it be assisting clients in buying, selling, or leasing a home, commercial office, farm, etc.  If there is specialization in the real estate industry, it is likely confined to geographic areas and types of homes; this doesn’t take away from the fact that all Realtors are capable of doing the same thing (i.e. filling in paperwork, negotiating, and finalizing a deal).  These three differences reveal that lawyers – particularly those who specialize in a complicated legal area such as tax litigation or commercial law – are and will continue to be in high demand and, as such, safe and secure from disruptive technologies that will take business away from other types of lawyers.

Overall, given the low barriers to becoming a realtor, the market prevalence and accessibility to Realtors, and the fact that they can all pretty much perform the same services to assist clients, I envision the end of traditional Realtors happening on a wider scale much quicker than it would for traditional lawyers.

written by admin \\ tags: agreement, continuings, end of realtors, end of s, for sale by owner, lawyer, lawyers, litigants, litigation, money, negotiating, Negotiations, purchaser, referrals, technology, Toronto lawyer Michael Carabash

It’s 2020. You’re in Toronto and in need of legal services.  Your will is outdated because all your children are now married with children of their own. Meanwhile, your thriving business needs to be incorporated for liability, expansion, and tax-planning purposes. Finally, you need representation to help you fight some speeding and parking tickets.

So, naturally, you turn to the Internet to quickly find cost-effective professional legal services. By this time, the Ontario government and Law Society of Upper Canada have made Dynamic Lawyers (wishful thinking?) the legal intake centre of choice for the general public. You start off by telling Dynamic Lawyers what your preferred language is. Then you proceed to a dashboard where a range of legal services are displayed. A website-generated assistant pops up on the screen and starts asking you in your preferred language what legal services you’re interested in. You say “I need a will”.

The next screen requires that you respond to a number of questions to complete your legal post. Included in your post are things such as:
• your geographic location;
• what service(s) you need performed;
• your timeline for starting/completing those services;
• your budget (if any);
• what language(s) you would like the service providers to speak;
• whether you prefer domestic or international service providers; and
• a limit on the number of responses you would like to receive.

You review the post and then submit it. The post is made anonymously and is absolutely free of charge. All you’re required to input is your e-mail address, which does not show up in your post and is only used to route bids from service providers back to you for consideration.

You’ll go back to the main dashboard and submit additional posts under the following categories: “Incorporate”, “Business Agreements”, “Residential Real Estate Transaction”, “Civil Litigation”, and “Highway Traffic Tickets”.

When you’re finished, you’re asked whether you would like to do an annual legal checkup. You agree. It only takes a few minutes and you’re asked a number of questions to determine if you require any further legal services – or whether anyone you might know may be in need of them. You realize through answering the annual legal checkup’s questions that you do need to update your website and will need someone to help you put together a new website development agreement with your web designer supplier. With all said and done, you close your internet browser and go on living your life.

Behind the scenes, Dynamic Lawyers has already packaged your posts and disseminated them to various legal service providers, whose job is to assess the legal requirements and respond with an outline of the project scope with details concerning quotes and timelines. The legal service providers could be sole practitioners working at home halfway across the world. They have been certified to practice law in Ontario, so they are permitted to bid on the work. They are registered to receive certain types of work, for which they specialize. Other legal service providers could be large multinational firms comprised of legal and non-legal personnel.

So how unlikely is any of this to actually happen?  Well, if I could paraphrase Richard Susskind (once again): the future is not out there somewhere waiting to be found.  It’s here and now and ready to be created by us.

written by admin \\ tags: Dynamic Lawyers, dynamic.com, lawyers, litigation, Michael Carabash, publicity, Richard Susskind