Author: Amanda Lamers

Meeting with a Lawyer: Preparation for and Next Steps

Written by Amanda Lamers on March 14, 2023. Posted in General.

You have now taken the first step and reached out to a lawyer to help you with your issue. Kudos! You don’t know what you don’t know and scrimping now could lead to bigger legal bills down the road if things go wrong. So, seeking legal advice is a good idea when you’re faced with life’s major challenges, milestones, and changes, including living together, separation/divorce, estate planning, employment, or business concerns. But now what?

First, there are some housekeeping matters to take care of.

I.D. verification is required by the Law Society of Ontario. Lawyers must confirm the identities of their potential clients, including additional verification requirements when the client is an organization. Individuals will be asked to provide basic personal details (e.g., name, address, telephone number, email, occupation, etc.) and to present a government-issued ID (generally, driver’s license or passport, not health card), a copy of which the lawyer will keep on file.
A conflict-of-interest check will be performed before your first consultation and before you can “retain” the lawyer. A conflict of interest exists where the lawyer owes a duty to a current or former client or third party that would be in conflict with your own interests. For example, if you are coming to the lawyer for a divorce, but the lawyer has previously represented your spouse, even if it was an unrelated matter, there is likely a conflict of interest. The lawyer may also have personal interests that could affect the duties owed to the client, such as an ownership interest in a business that competes with the prospective client’s business. The lawyer must determine if there is a substantial risk that their duty of loyalty to the prospective client would be materially or adversely affected by their personal interest or their duties to another client (current, former, or joint) or a third person.
Intake. If there is no conflict, you will need to provide some background (“intake”) information so the lawyer has the information needed to open your file and so that, when you meet, the time can be used more productively than if you needed to provide basic details. It will also enable the lawyer to start formulating an initial plan. In addition, you will be asked to provide any relevant documents: for a family law matter, this could include your marriage contract, your tax returns and notices of assessment for the last 3 years, your 3 most recent pay stubs; a list of your assets and liabilities, as well as any property owned by you (and your spouse, either together or separately). If you have any pre-existing agreements (e.g., cohabitation / pre- or post-nup) or court documents, the lawyer will also want to see these. For an estate planning matter, any prior wills and codicils, shareholder agreements, and domestic agreements should be provided in advance, as well as information on your assets. You will also want to give some forethought to what you want to accomplish; for example, if you’re doing a will, you should think about how you want your final wishes carried out and by whom; for a family law matter, you might be most concerned about what the parenting plan will look like.
Consultation with Lawyer. Although you may be offered a short initial no-obligation consultation by some lawyers in order to determine fit, and to provide you some initial legal information, legal advice will not be provided until a more detailed discussion can be had. The first substantive consultation will typically last about an hour, during which time you will delve more deeply into the details of your situation and wherein the lawyer will provide you initial advice, including a proposed plan or strategy for next steps. The lawyer will also provide you with an explanation of the fees that may be anticipated, though with the exception of certain straightforward matters (e.g., uncontested divorce, document review, simple will), this will not be something that can be predicted with any certainty, as your results are highly contingent upon the actions of each side.
Retainer Agreement. After the initial consultation with the lawyer, you will determine whether you would like to retain them for your matter. The lawyer will provide you with a “Retainer Agreement” or a “Retainer Letter” to set out the scope of the lawyer-client relationship, as well as rates and other important information for you to understand (e.g., confidentiality of communications). This is a document that you will have to sign and return to the lawyer. Now that the lawyer has more information about your case, you may be asked to provide additional documents or further information, depending on the circumstances. For example, the lawyer in a family law matter will want you to collect and provide the information that will comprise your Financial Disclosure for the purpose of negotiating the terms of a Separation Agreement.
Subsequent Communications. Your lawyer will regularly keep you up-to-date on the status of your case or, in the case of document preparation and review, can give you an estimated time for completion. With respect to inquiries you may have, most lawyers’ offices will attempt to respond within a reasonable time, often 24-48 hrs (though usually not including weekends or holidays!). However, depending on your lawyer’s schedule (whether or not, for example, they are in court), you might not get to see them right away. Your lawyer has to prioritize their clients’ matters based on things like court-imposed deadlines. Where possible, electronic communications facilitate a more timely response to your questions, as they can often be addressed in breaks throughout the day, even where the lawyer is not in the office. And, in order to manage each other’s time and your expense, try to consolidate your inquiries. Keep in mind that each email reviewed and responded to will be billable time, and we want to manage the budget as much as you do!

If you have any questions about the process or would like to initiate a consultation, Lamers Law will be pleased to assist you. And if you’re not ready to consult a lawyer yet, but could use a friendly reminder from time to time, consider following Lamers Law on Facebook or Instagram.

What Do You Need to Start a Small Business?

Written by Amanda Lamers on January 16, 2023. Posted in Contracts & Negotiations.

What do you need to start a small business? There is a short list of elements that would be familiar to most entrepreneurs. First, it takes an idea. Whether you’re launching a product or a service, you have an idea about how to do something differently than your competitors, or bring something new to the market, and that idea is at the core of starting your new small business.

Beyond just an idea, starting a small business takes a lot of drive and determination to get that idea off the ground. Entrepreneurs understand the importance of the hustle, and are driven to put the work in to get their business properly off the ground. Many work all hours, often while juggling other employment, just to get a solid foundation in place.

If you think of your business like putting up a house or a building, think of building that on a solid legal foundation. There are key documents that any business should have – including contracts and policies – that will help protect that business as it continues to grow.

Here are some of the key documents that any small business owner should consider having in place as they get their business off the ground:

Business Name Registration

If the first thing that you’ve thought of is a brilliant name for your business, great! The next step is to get it properly registered through the Ontario Business Registry. Registering a business name in Ontario is fairly straightforward, and it does not mean that you need to incorporate. You can register your business name even if you are running as a sole proprietor.

If your business has employees, facilities, or offices in Ontario then you need to register your business name. The Business Names Act in Ontario requires that no corporation, individual, or partnership can carry on business under a name other than their own name (or just the names of the partners/corporate name) unless the name is registered.

Incorporation Documents

Not every business needs to incorporate on day one. If you are a sole proprietor (or solopreneur) offering a service online and working out of your home, for example, you may not need to incorporate right away. Yet if you plan on growing your business to a certain size, or if you’ll be taking on multiple partners or holding significant assets, it may be wise to incorporate early.

Think of incorporation as setting out the rule book for your business. Incorporation involves a series of formal documents that set up the structure of your company, including who will be the directors, the officers, and the shareholders. A corporation is set up in terms of shares, and these documents determine who owns what shares in the corporation and how profits will be dispersed.

There are legal requirements to maintain a corporation, including specific documents that need to be maintained and filed, such as annual resolutions of the corporation. Much like a partnership agreement, incorporation documents can also spell out how disputes will be resolved, or what happens if one of the founders wishes to leave the corporation.

Partnership Agreement

If you plan on starting your business with a partner, then a partnership agreement will benefit both of you. Your partner may be a family member, a best friend, or even a colleague, and you’re likely starting with an equal amount of excitement and enthusiasm. A partnership agreement is what protects the heart of the business in case anything happens between you and your partner.

A partnership agreement is a formal document that spells out who the partners are, what their responsibilities are in the business, how decisions are made, what each partner has put into the business, how profits will be divided, how disputes will be settled, and what happens when one partner wants to leave the business or wants the other to leave the business.

Much like a marriage, it’s hard to think about things ending badly when everyone is so positive and excited at the beginning. Yet, like a marriage, the right paperwork can help build that solid foundation. That way, if things do end badly between partners, the business that you’ve both worked to build can be protected.

Terms of Service and Privacy Policy

If you are running your business with any sort of online component (as most businesses are today), your website should incorporate some key documents such as terms of use or terms of service, and a privacy policy. Both serve different purposes but both are equally important to keeping your website running well.

The terms of service outline the grounds on which someone can use your website. They can explain the purpose of the information on the website, and how whatever is written for the public does not replace any professional or expert advice that they may get from hiring you. It can also prohibit anyone from posting illegal or prohibited content on your website, or from copying your website directly for someone else’s own use.

A privacy policy spells out how you’re going to collect and use any visitor’s information. Whether you are taking email addresses for a mailing list or having them complete a contact form to reach you, a privacy policy spells out how you plan on using that information and how you plan on keeping it secure from any third parties.

Employment Contracts

Believe it or not, any employee who works for you in exchange for money is under an employment contract – even if that contract is unwritten. An unwritten contract usually works to the employee’s benefit, as there is no cap on what that employee may be owed if you choose to end their employment.

Instead, an employment contract helps provide your business with a sense of security when it comes to employees. You can clearly outline the terms of the working relationship, and the expectations that you have from employees and that they can have from you. When written carefully, an employment contract can also help limit whatever obligations you do have to pay an employee if you end their employment.

Non-Disclosure Agreement

If your business is founded on a great idea or an innovative product, your biggest concern is someone stealing your idea and ripping off your business.Telling someone about your unique idea in the early days feels like letting them in on an insider secret, especially if you’re trusting them not to steal your idea and market it for themselves.

A non-disclosure agreement (also known as an “NDA”) can protect your idea from piracy, and serve as a legal way to ensure that no one steals or publicizes your idea. These agreements need to be written very carefully to confirm exactly what is covered by the scope of the NDA, what is not covered, how long it lasts, and what penalties may be in place for breaking the agreement.

NDAs are common as you start to bring people into your business, including external consultants, initial employees, or even potential partners. These agreements should be practical and reasonable – they cannot prevent people from sharing already public information, but they can help secure your true trade secrets.

Licenses and Permits

Even if we think of licenses and permits as a bureaucratic headache, they are extremely important in making sure that your business is running properly. Depending on the nature of your business and where you are running your business, you may need:

A general or municipal business license
A zoning permit to operate our business
Criminal records or judicial matters checks
Professional licenses
Health and safety permits
Signage permits

There may even be further license issues depending on what you are looking to do. This list also does not cover the insurance your business will need, such as commercial general liability, errors and omissions, property insurance, or other coverage that you may require.
This list is not exhaustive, and may sound overwhelming, but help is available! A small business lawyer can help guide you through the process step by step, draft key documents, and ensure that you are off on the right start. Contact Lamers Law today to set up a consultation.

A roadway to alternative dispute resolution

A Closer Look at ADR

Written by Amanda Lamers on December 17, 2022. Posted in Dispute Resolution.

When you feel that someone has wronged you, whether that’s another person, a company, or even a government agency, it’s not unnatural to want your day in court.

Most of us have been raised largely on American TV and movies, and we have a sincere belief that justice happens within a courtroom. We hire a lawyer, everyone gets to plead their case before a judge or judge and jury, and then a decision is made.

While we’ve all seen lawyers on American TV shows delivering that passionate speech at the end of the episode that sways the Court’s opinion, real life in Canada is a very different story.

The greatest difference is that, in Canada, almost 98% of civil cases settle outside of court. The off-camera reality is that the process of litigating a dispute through the Court system, including possible appeals of a decision, can take years. It also involves financial expenses which few Canadians can afford out-of-pocket, especially if the dispute is long and drawn-out.

However, just because something settles before reaching court does not mean that justice was not delivered. In fact, the court system today puts several measures in place to encourage settlement before disputes ever see the inside of a courtroom. Along with the formal litigation process, there is also an entire body of settlement known as alternative dispute resolution, or ADR.

This article will look at what ADR actually entails, and how such methods can help save you time, money, and unnecessary stress.

Negotiation

If you and the opposing party in a dispute cannot work things out on your own, lawyers can step in to help resolve the dispute for you. However, much like your initial efforts, the lawyers will often begin by trying to negotiate a resolution. Lawyers recognize that a negotiated, smooth resolution is usually the best outcome for any client because of the time and money that it can save.

Lawyers often have an easier time negotiating between each other because neither is emotionally involved in the dispute – they look at resolution with a logical perspective, ensuring that their client is treated fairly and that the parties remain as civilized as possible. Negotiating via lawyers often takes the form of emails, letters, telephone calls or meetings between both sides, without or without the clients’ presence.

Remember though that a lawyer cannot take any action without your permission. They may recommend a settlement, or a path towards a smooth negotiation, but the choice of whether or not to accept is ultimately yours. Lawyers will always seek their instructions from you before proposing or agreeing to any form of a deal.

Mediation

Mediation has become an increasingly common method of dispute resolution. Instead of lawyers negotiating between themselves, a mediator is a neutral third-party who is trained to assist in dispute resolution, and who can help work to bridge the gap between the two sides to reach a negotiated resolution.

Every mediator works differently, depending on their style and the nature of the dispute. If the disagreement is mostly financial, the mediator might help push both sides towards a middle ground number to help split the difference between offers. Some mediators like to start by bringing parties together in the same room, whereas others keep everyone in completely separate spaces.

Mediation is mandatory in some jurisdictions like Toronto, but it may be a great idea no matter what you’re trying to resolve, as mediation is typically more cost effective than going to court. It is also important to note that mediation is a private process – settling means agreeing to discontinue any court action, but if you cannot settle at mediation then you can still proceed to court undeterred.

Or you may agree to a combined option of Mediation-Arbitration. If the mediation fails, then the parties in this form of ADR agree to use an arbitrator to decide the matter, or the same mediator if they have been trained in how to do both.

Arbitration

Imagine being able to hire a private judge. That’s effectively what arbitration is – both parties have the power to hire a sort of private judge to resolve their matter. Think of arbitration as a miniature court proceeding. Much like a trial, an arbitration can last for several days, involve questioning witnesses, and other elements that are similar to a trial.

The difference is that at the end of hearing and reviewing all of the evidence, the arbitrator (who has been highly trained in this sort of work) will issue their ruling, which is binding upon both parties. While there may be some methods to appeal an arbitration decision, usually an arbitrator’s word is the final say.

While arbitration can often move quicker than the court process, the other benefit is that it can keep things out of a courtroom. Courts can be unpredictable, where you often don’t know the judge’s background or their expertise in the area of your dispute and the matter becomes one of public record. Instead, arbitration lets you stay out of the courtroom, helps you to maintain your privacy and allows your matter to be resolved by someone who has expertise in dealing with similar situations.

Collaborative Family Law

Yes, family law can be contentious, but it doesn’t have to be if both parties are looking to sort things out smoothly. Instead of both sides, each represented by their own lawyer, butting heads, collaborative family law involves both parties working together (“collaboratively”) with their respective lawyers in a non-adversarial manner, along with other specialists as needed (financial specialists, social workers, etc.) to help resolve matters.

Collaborative family law is a completely voluntary process. It might not be right in some cases, such as where there has been domestic violence, substance abuse, or a history of mental illness. And not all lawyers offer this option. Yet for former partners who are looking to cooperate and seeking amicable arrangements, it can be a great path forward.

Collaborative family law makes sure that the former partners are ultimately in charge of their own resolution. Each partner is encouraged to speak openly and honestly, and to respect each other’s feelings and viewpoints.

Final Thoughts

While these are some of the most common methods of dispute resolution outside of a courtroom, they are not the only methods available. Even if you are moving through the court process for litigation, there may be multiple case and settlement conferences (meetings with a judge outside of court) where you and the other side and the lawyers will attempt to resolve things before trial.

Also, just because one method of dispute resolution does not work on the day of, that does not mean that all hope is lost. Negotiation may take some time, and involve some give-and-take before resolving. The lawyers may speak with their clients after and agree to settle days or weeks later. You may also agree to solve some issues at a mediation for example, but may still need to go to court to resolve others.

Disputes may be inevitable, but don’t think that ‘a day in court’ is your only road to resolution. Contact Lamers Law today to set up a no-obligation consultation and learn more about the dispute resolution process, and which steps may make the most sense in your situation.