The new B.C. Franchise Act comes into force Feb. 1, 2017 and puts Canada's most westerly province in line with five others with similar legislation. While the act was passed in Nov. 2015, the B.C. government has been drafting regulations which were passed last month.
|Tony Wilson says the new act and regulations 'levels the playing field' and has enhanced franchise legislation.|
Franchise legislation is a response to the burgeoning commercial growth of franchises in Canada, says Rogers.
"Franchises in Canada represent 45 per cent of all retail and that figure is going to hit 50 per cent in the next few years," he says, adding that while the food industry is best known, franchising now permeates nearly every service sector ranging from printing and signage production to graffiti removal companies.
The B.C. Franchise Act and regulations sets out disclosure information the franchisor must provide to purchaser in a Franchise Disclosure Document to enable a buyer to make an informed decision. Such information includes a financial statement, the franchise agreement to be signed, contact information of existing and past franchise holders, pending legal suits, or outstanding debts, pending union certification, and federal and provincial licensing requirements that the franchisee must meet. There is a 14-day cooling off period that benefits the potential buyer after receiving the FDD. The new legislation also provides for redress for the buyer should the franchisor misrepresent information.
Rogers said one distinction seen is that the act does not allow grandfathering and all new franchise agreements and those renewing must comply.
As a member of the Canadian Franchise Association's legal and legislative affairs committee, Rogers said that the legislation still permits larger franchise companies to use their existing disclosure documents. The new act features a "wrap-around" FDD provision which allows them to modify their document to meet B.C. requirements rather than issue a new document. "A lot of companies are American and for them that is a big deal. They don't want to reinvent the wheel," he says.
Other new features include: a definition of earning projections for franchisors wanting to include such information in a FDD and documents can be delivered to a potential buyer via email as well as personally or couriered.
Broughton Law Corporation franchise lawyer Tony Wilson, who was a member of the B.C. advisory committee to the provincial government on the new legislation, says the new act and regulations "levels the playing field" amongst the six provinces and has also enhanced franchise legislation. "We provided the government with advice; there was a lot of to-ing and fro-ing in the meetings, but it resulted in what I think is the best strategy in Canada," he says.
One of the features that will benefit franchisees is the act's requirement any legal dispute (court cases or arbitration) should be settled in B.C. For franchisees with a parent franchise company headquartered in the U.S. or Eastern Canada, that can mean a substantial cost saving in travel time and costs, such as hiring a local lawyer. "Especially in the U.S., where cases can be long and protracted," Wilson said. (A provision of the act also does not allow a franchisee to waive rights inferred by the legislation).
Wilson also said B.C.'s act, in s. 9, sets out substantial compliance in disclosure requirements rather than strict compliance as is found in Ontario's statute. Substantial compliance provides greater balance between the franchisor and franchisee, he said, as it provides for a defect in form or technical error that does not affect the substance of the FDD or the statement of material facts.
Strict compliance can lead to a franchisee searching a contract agreement for a technicality simply to because that person made a poor business choice. "It is too handy to get out of a deal," he says.
Wilson sees the legislation as providing a balance, neither favouring franchisees nor franchisors. "I think the provincial government in its deliberations looked across Canada and made some real improvements," he says.
British Columbia’s new superintendent of real estate Michael Noseworthy has made it clear that lines have now been drawn between his office and the real estate industry as he took control of the office Oct. 19 overseeing the public's interest in what has become B.C.'s most controversial industry.
“My job is to represent the public and protect the public and act for the public and their best interests,” says Noseworthy, a lawyer and government regulator, who takes on the over-sight role of the real estate industry and its regulatory body, the B.C. Real Estate Council.
Noseworthy's consumer protection stance continues the hard line taken by Premier Christy Clark when the Liberals became embroiled in real estate controversy for failing to provide the needed regulation framework to stop shadow-flipping by real estate agents. Clark responded by passing a law to prohibit it, implementing tough new financial penalties for realtors and the firms, dismissing the board members of the Council, removing the real estate industry's right to self-regulate, and creating Noseworthy's full-time position.
Noseworthy arrived in B.C. from the Yukon where he served as a senior government regulator, holding a variety of positions. He worked as a lawyer in Newfoundland and Labrador prior to his work with the Government of Yukon, in a private practice that included real estate law and administrative law. He received both his law degree and a bachelor of arts in political science from Dalhousie University.
The new superintendent said he will be working to ensure the 28 recommendations put forward by the Industry Advisory Group led by Carolyn Rogers, then CEO of the Financial Institutions Commission of B.C. and endorsed by the B.C. government are implemented. The IAG recommendations looked at what was wrong with the real estate industry and its provincial regulatory body, the Council. The advisory group included members of the legal profession including Howard Kushner (Kushner Law Group), Bruce D. Woolley, Q.C. (Stikeman Elliott LLP), and Ron Usher, general counsel, Society of Notary Public of B.C.
The 28 recommendations set out needed changes in three areas: the provincial government should make to its laws, changes to the Council and recommendations for the superintendent's office.
Amongst the amendments that impacted the BC Real Estate Services Act were increased penalties and eradicating any ability to shadow-flip properties between buyers without the seller's knowledge. Maximum fines have increased from $10,000 for agents and $20,000 for agencies to $250,000 for agents and $500,000 for agencies and $50,000 administrative fines under the Act.
The new nine-member council board appointed Oct. 12 will be chaired by lawyer Robert D. Holmes, Q.C., a trial and litigation lawyer. Only two of the nine members have real estate industry involvement.
Noseworthy said he is confident that the new Council can provide the guidance and knowledge required to make the needed IAG changes that relate to the Council's role to regulate and licence brokers.
While all 28 recommendations are important, Noseworthy there are two main concerns. He wants to ensure that shadow-flipping is halted, but also wants to address the issue of dual-agency participation, where an agent represents both buyer and seller.
The BC Real Estate Association, representing 11 regional real estate board, have responded to the 28 recommendations with a report that has been issued to Noseworthy's new office. The provincial association's concern is that not permitting dual agencies, especially in rural areas may limit agents.
As Noseworthy moves deeper into his role and watch-dogs the pieces of a reshaped regulatory system, he is expected to draw national attention. "There will be people right across Canada watching to see what we do here," says Damian Stathonikos, BCREA spokesperson.
Noseworthy remains committed. "My whole career has been about protecting the public, something I am passionate about and the reason I come to work every day,” he says.
The Action Group on Access to Justice (TAG), which presented “Imprisoning the Innocent: Bail and Wrongful Convictions in Canada”, will be holding its first-ever Access to Justice Week on October 17 to 21. Visit their website for a full list of events. To see a second video from this event Click here.
Osler, Hoskin & Harcourt LLP said on Wednesday it has launched a technology-based platform to support coverage of corporate deals and hired five people to help with the process.
The team will be based in Ottawa and led by Natalie Munroe, who returned to Osler this year after spending a few years at Canadian lender Bank of Nova Scotia as senior legal counsel. She has previously worked with U.S. law firm Cravath, Swaine & Moore LLP in New York and London, as well as Osler in Toronto.
Faced with increasing competition and digital disruption, law firms have been responding with strategies that leverage technology.
Under the platform, the team will support mergers-and-acquisitions and corporate finance transactions, but it will branch into other areas as well, Munroe said in an interview.
The team, which is called Osler Works — Transactional, is expected to grow, she said. The five-member team includes four lawyers.
"Clients are putting a lot of pressure on law firms to make changes to the way they practice. This model is put out there by Osler to respond to those needs", Munroe said.
Ottawa was chosen because Osler has a presence there and the city is a relatively lower-cost location, she said, adding that the team will use a number of technology-driven applications for its functions.
- B.C. benchers use recent retreat to build stronger ties with aboriginal community
The recent Law Society of British Columbia benchers’ retreat in Penticton was used to build stronger ties with the indigenous community and gain a broader awareness of the issues underlying the Truth and Reconciliation Commission’s call to action and its 94 recommendations.
|First Nations lawyer Ardith Walkem says the bencher retreat had a positive and ‘different feeling at the start.’|
There are, for example, a disproportionate number of aboriginal children now in government care in Canada and a disproportionate number of native men and women filling our jails. Not to mention the numbers of missing women and affected families because of domestic violence.
Bluntly speaking: Can the legal community bring them home?
LSBC president David Crossin acknowledges that the justice system fell far short of protecting an earlier generation of aboriginal men and women and the children forced into residential schools, many of whom now lie in unmarked or unknown graves.
“The justice system really fails the indigenous population, particularly as it relates to the residential school protocol that was put in place. The legacy of those schools is horrible,” says Crossin.
It is the legacy that the justice system now deals with. In the fall of 2015, the LSBC and its benchers adopted a position to embrace the TRC report recommendations.
“The LSBC felt it was one of the most important justice issues of our lifetime,” says Crossin.
The Penticton retreat was a forum for delving deeper into key issues such as indigenous children in custody, criminalization of aboriginal people and their incarceration, and domestic violence.
It also highlighted what many have already known about Canada’s justice system.
“The justice system does not fit with [native] culture and we have to address that. We can’t ignore it,” he says.
“This is not something that will take weeks or months but rather, years,” says Crossin, who is also a member of a Federation of Law Societies of Canada committee formed to address the call to action recommendations.
Crossin quotes TRC chairman Justice Murray Sinclair, who when speaking of the report, said: “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”
The Penticton forum did not focus on the socio-economic and political problems surrounding the aboriginal Canadians, which are complex, but more on how to climb the slope.
Crossin says: “It really relates to how the LSBC will lead the legal profession on this path and on this road to reconciliation.”
He says there needs to be more public dialogue on the issues.
“It is a challenge to appreciate how to best heal these relationships. It is our task and our desire to start that process. It starts with personal relationships. It starts by sitting there and looking people in the eye and speaking the truth to one another and going forward. I truly believe we must begin this and that it is a process. It is not going to happen overnight that we come to a collaborative plan with the aboriginal community going forward.”
Crossin adds: “We will be working with the Aboriginal community to formulate a specific concrete plan of action and going forward.”
While the Penticton forum drew in mainly aboriginal representatives from the legal community, Crossin says there is a need for feedback on a broader level.
“The justice system is not just the domain of the lawyers and judges,” he says. “Our mandate is to look after the public interest and that includes thousands within the Indigenous community.”
Ardith Walkem, a First Nations lawyer with Cedar & Sage Law Corp., says an important aspect of the forum was “the different feeling at the start” as those attending expressed a curiosity and openness to explore issues.
“There was a willing to discuss issues and ask the legal profession to respond to them,” she says, as the members looked both “inward as well as outward.”
“The TRC said the law in the past had played a role in the colonization of the Indigenous people,” says Walkem. That role should be examined in the context of how the law is formed and acted upon in society, not just by the law societies but by all Canadians.
Resolving the issues in the Indigenous community will require action on many different fronts, albeit social, political, or legal. “But it is important that the Indigenous people drive it,” she says, adding the Indigenous people want “nothing about us, without us.”
The retreat, which drew in benchers and guests from Nova Scotia, Manitoba, and representatives from other law societies, was more of a discovery process for individuals participating, says bencher Dan Smith, who commented as a First Nations member. Smith, who has worked for government, says they are slow to change.
“There are often systemic and attitudinal barriers that prevent change,” he says. “The system to date requires a change and initiating change within government is very difficult.”
Smith says there is a need for “recognition of being inclusive” in Canadian society. That need translates into native voices breaking through societal barriers and to “be included in the development of policy and regulation. . . .”
Walkem calls this inclusion challenge “one of the greatest human rights questions of our time.”
And, for the legal community, the questions may all simply render down to that - protecting human rights and freedoms, the underpinning of the legal community’s past failure to protect another generation of Indigenous people. That failure now looms as an opportunity to bring the current generation of aboriginal people home on their own terms and definition.
Traditionally, if a person wanted to sue someone in Ontario and that amount fell under $25,000, he or she would have to prepare all the necessary documents and then take the time to go to small claims court to file them.
As of last week, the court has finally entered the Internet era, as the Ontario Ministry of the Attorney General announced all small claims can now be filed online.
Brendan Crawley, a spokesperson for the AG, explained that since small claims court online applications were piloted online in 2014, more than "20,000 small claims have been filed online, and over 15 per cent of those claims were filed outside regular court hours.”
Crawley adds that the process is made secure by requiring “users to create and use a One-key ID and password, a unique electronic credential that allows users to communicate securely with online Government services.”
Why is the Ministry of Attorney General doing this now?
Crawley said that this was done to make “court services easier, faster and more accessible by delivering them online”.
“The intention has always been to expand it [the e-filing system],” adding that “filing online is really an advanced feature and it’s overdue, it should be expanded beyond small claims to all courts," says Toronto commercial and franchise litigator Ben Hanuka, of Law Works PC.
There will also be actual cost savings to clients if a lawyer or paralegal represents them, because they can now save on having to use a process server.
While Hanuka acknowledges, “It’s a good step . . . this saving of time for the consumer is good,” he also cautions that just because the filing is made easier, doesn’t mean the rest of the claim will be easy to handle.
“I think it will help them [consumers] with the logistics of filing it but it won’t do anything about helping them draft the claim and the drafting is the hard part," he says.
Before individuals begin filing, there are a few things they will need, including a ServiceOntario account, a credit card, a summary of why they are making the claim, and documents that support the claim.
What about people who are not exactly technologically savvy? Are they able to navigate the murky waters of online filing?
Crawley says the process is actually quite simple.
“The online filing wizard makes the process of completing and filing a small claim and receiving a judgment faster and more accessible by breaking it down into a series of easy-to-follow steps," he says.
The takeaway from the government’s announcement is that Canadian governments and courts are recognizing that they have to move with the times and many are now moving towards filing claims online.
The Canadian Bar Association-British Columbia branch’s Rural Education and Access to Lawyer Initiative program is getting creative when it comes to placing students in small or rural areas where there is an acute need for lawyers.
|In some rural areas of B.C. there’s only one lawyer for every 10,000 residents. (Image: Shutterstock)|
The difficulty faced by programs such as REAL and articling students wanting to practise in small towns is that many of the existing lawyers in underserved smaller or rural areas have moved into semi-retirement as the greying of the bar gains momentum.
“They are winding down their practice for whatever reason,” she says.
The average age of B.C. lawyers is approximately 50, according to REAL.
“But in smaller communities and rural areas, the age is significantly higher with the average age in many communities in the 60s (with some as high as 70 years old),” a fact sheet points out.
McCue says the Law Society of British Columbia requires students have full-time supervision. One way to ensure that, but work within the reality of the demographics occurring in communities, is to find lawyers willing to share a student. McCue says she is also open to hearing from lawyers who want to share a third-year student looking to article so she can help in bringing those lawyers together.
Annother scenario ripe for student sharing is where one lawyer does mainly litigation while another is a solicitor and each party might not feel they are giving a student the well-rounded practical experience a student should have.
“But, we put them together, it is a marriage made in heaven,” she says.
There are approximately 11,000 B.C. practising lawyers in the province but 86 per cent are located in Victoria, Vancouver, and New Westminster. The REAL program has produced a list of B.C. communities considered high-need and requiring lawyers.
LSBC statistics estimate there is one lawyer for every 450 people on average in the province. But, in smaller or rural communities that figure is one lawyer for every 1,000 persons.
The REAL program’s high-need list of communities (available here) includes towns where there is less than one lawyer per 1,000 residents. McCue says in some communities, the figures can be as low as one lawyer for 10,000 people.
McCue said that the REAL program focuses on second year students, providing funding for lawyers to take on the students; however it can provide information and support for third year students looking to article in a smaller non-urban area as well.
McCue encourages first-year students to visit smaller communities in need of lawyers so they have an idea of the lifestyle and opportunities that such a community can offer.
She encourages second-year students, and articling students, to also visit communities and talk to members of the legal community there. She says often rural lawyers want to meet students in person before hiring them to determine if they will fit into the firm.
She says over time, the REAL program has become more selective in its choice of candidates as is now focusing on retention rather than simply placement because of the growing need to provide lawyers in these high-need areas.
A total of 100 students have been placed since the program began but not all have stayed in smaller communities.
|Senator Mike Duffy leaves the courthouse after being cleared of bribery and fraud charges. (Photo: Chris Wattie/Reuters)|
Duffy, a former television journalist, had faced 31 criminal charges related to roughly $90,000 in expenses he charged after former Conservative Prime Minister Stephen Harper appointed him to the Senate, the upper chamber of Parliament, in late 2008.
The trial started last August, shortly after Harper had launched an election campaign.
The court heard that Harper's chief of staff, Nigel Wright, had pressed Duffy to repay the expenses, even though Wright felt they were most likely legal. Evidence also showed Harper's team had given orders to the Senate, which is supposed to be independent.
Duffy chose to be tried without a jury. In a 308-page ruling, Ontario Court Judge Charles Vaillancourt said he found the senator to be a credible witness and strongly criticized Harper's aides for their behavior.
As the case progressed amid enormous media coverage last year, polls showed the Conservatives starting to lose support. Justin Trudeau's Liberals won a majority in the federal election on Oct. 19.
The Barreau du Québec has added its voice to a growing chorus of legal groups calling for more public funding and radical reforms to help reduce what they say are ridiculously long court delays that are hindering access to and making a public mockery of the province’s court system, particularly in regards to criminal justice.
|Claudia Prémont notes delays and budget cuts are ‘bad news for the administration of justice’ in Quebec.|
She goes on to list a series of complaints, ranging from delays of up to three years for criminal trials to be heard in Montreal at the Superior Court level, and two years in Quebec Court.
The barreau said those delays, together with a recent $5-million cut in the budget of Quebec’s Directeur des poursuites criminelles et pénales office “spells bad news for the administration of justice.”
The Quebec bar is notably calling on the Liberal provincial government to provide the necessary resources (i.e. a big cheque) to Justice Minister Stéphanie Vallée that will permit her “to remedy this problematic.”
The barreau’s public sortie comes just days after the former head of the Superior Court of Quebec, Justice François Rolland, made headlines for slamming the trial delays in the province’s court system in a Senate hearing in Ottawa.
The former chief justice notably decried the fact that criminal cases by jury are currently being scheduled for 2019.
“Delays are bad for the accused, extremely bad for the victims, and extremely bad for Canadian society and the credibility of our judiciary,” Rolland told the committee, which is examining questions related to court delays and their effects on penal justice across the country.
According to Rolland, changes have to be made to make delays more reasonable like they were before 2009, the year Quebec started invoking mega trials to deal with biker gangs.
“If we don’t do anything we are going to hit a wall, and once that happens we can’t back up,” he said.
Rolland added that when he joined the bench in 2004, jury trials were always set within a year, usually seven to nine months.
“At the time I’m saying this,” he said, “you can’t get a [Superior Court of Quebec] date for a trial set in Montreal before 2017. For 2018, there are a few dates available, and they’re already booking dates in 2019. The situation is similar in Quebec City.”
In addition to the mega trials, he said the rising use of electronic communication of evidence, increased resources in police investigations, and even the increase in Crown attorney hirings have created a massive uptake in demand that the static numbers of judges and courtrooms can’t handle or accommodate.
A few weeks ago, another judge, Quebec Court Judge René De La Sablonnière, also made headlines for a pilot project he’s instigated that aims to reduce delays in criminal court cases.
Calling delays “the cancer of the judicial system,” De la Sablonnière pointed to a sexual touching case he threw out in March, nearly four years after charges were laid.
“These delays erode witnesses’ memories of events, unfairly prolong preventative detention of accuseds, and undermine the credibility and legitimacy of the institution,” the judge told Quebec City’s Le Soleil.
He gave the interview to publicize a pilot project that he and Crown prosecutor Sabin Ouellet have teamed up on.
The unique Quebec-first project aims to increase the number of negotiated settlements in cases by four per cent a year.
Currently, 93 per cent of the 6,600 criminal cases that are opened every year in Quebec are settled without a trial.
In roughly half of those cases, guilty pleas are entered after several delays.
The judge says he and Ouellet plan to steal a page from British Columbia’s approach, in which accused are offered the most lenient punishments possible in exchange for a guilty plea, and given 120 days to consider it.
The Supreme Court of Canada today struck down two so-called tough-on-crime measures introduced by the former Conservative government, ruling the changes to sentencing practices were unconstitutional.
|The SCC struck down two Harper-era tough-on-crime laws.|
Mandatory minimum sentences for non-violent drug offenders were enacted in 2012, part of changes to the criminal law made by the Conservatives.
“The reality is this: mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are constitutionally vulnerable. This is because such provisions will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional,” said the majority ruling written by Chief Justice Beverly McLachlin for justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis, and Suzanne Côté”
“If Parliament hopes to maintain mandatory minimum sentences for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit that mandatory minimum sentences. In the alternative, Parliament could provide for judicial discretion to allow for a lesser sentence where the mandatory minimum would be grossly disproportionate and would constitute cruel and unusual punishment,” said the majority.
In the second case, R. v. Safarzadeh‑Markhali, the court voted unanimously against denying enhanced credit for pre-sentence time spent in custody to those that had been denied bail primarily due to a prior conviction.
Reforms in 2009 made those that had been denied bail primarily because of a previous conviction ineligible for enhanced credit, limiting the credit for pre-sentence time served to a one-to-one basis, rather than one-and-a-half days.
The court ruled that the denial of enhanced credit was overly broad.
“The denial of enhanced credit for pre-sentence custody to offenders who are denied bail primarily because of a prior conviction is overbroad because it catches people in ways that have nothing to do with the legislative purpose of s. 719(3.1) of the Code, which is to enhance public safety and security. Section 719(3.1) thus violates s. 7 of the Charter,” said the unanimous ruling, also penned by McLachlin.
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