Remy Boghossian, Remy Boghossian Legal Toronto

Toronto Lawyer Remy Boghossian. Remy G.Boghossian Legal Professional Corporation was established in 2005; the result of Remy Boghossian’s desire to offer corporate clients access to the best possible legal representation through an approach to the practice of law that remains client-centred and natural. Doing away with Bay Street-style pretence and ensuring the highest possible professional standards is Remy’s aspiration and hallmark. To put it another way, it is Legal Excellence… made simple.

After years of practicing law at one of downtown Toronto’s leading law firms and then at a small mid-town firm, Remy Boghossian came to realize that business clients need a legal experience that bridges these two worlds. Remy successfully modeled a law firm that maintains the highest level of legal representation while ensuring a relational and personal approach to the practice of law.

Our pursuit of perfection and exacting standards is apparent from the moment one walks into our modern and fully equipped offices right up to the delivery of our comprehensive legal services. Yet all of this is achieved without losing touch with the single most important aspect of our practice – a relationship centred around the client.

We hope you will visit our website http://www.boghossianlaw.ca , We trust you will enjoy your experience and learn some things about our firm and our approach to the practice of law.

Remy Boghossian Legal is a full service Business Law practice.

Remy Boghossian, together with a select team of highly skilled practitioners in their respective fields of law, provides clients with top tier service in the following areas of practice:
Corporate Law
Commercial Law
Banking and Finance
Commercial Leasing
Employment Law
Franchise Law
Technology Licencing and Distribution
Entertainment Law
Corporate and Tax Reorganizations
Dispute Resolution

From simple incorporations to complex mergers and acquisitions and corporate reorganizations, Boghossian Legal has the experience and depth of understanding to provide outstanding service and representation.

For further information, or to arrange for a consultation, please contact:

Remy G. Boghossian
Tel: 416-424-6604
remy@boghossianlaw.com

Remy Boghossian – Boghossian Law About Debt Collection

Credit Bureaus

Effective debt collection starts with being careful to whom debt is extended.

Credit reporting agencies or credit bureaus, collect information about consumers’ financial affairs and sell that information to their business members, such as credit grantors, employers and insurance companies.  The credit bureaus charge annual fees as well as a fee for each credit report requested by members.

In Canada, there are three major credit bureaus: Equifax Canada, NCB Inc. and TransUnion Canada

Most national and international creditors, such as banks and department stores, are registered with all bureaus, so the chances are good that whatever shows up on one credit report will also appear on the others.

Credit bureaus obtain their information from three major sources:

 1. Consumers supply information, primarily from filling out application forms for credit.

 2. Public records provide information on such matters as bankruptcies, Court judgements, foreclosures and agreements registered with Provincial authorities.

 3. The major credit grantors and collection agencies send their credit files electronically to the credit bureau every month, resulting in files that include the account number, outstanding balance, and a nine point scale indicating whether a payment was made on time or late.

The nine point scale is as follows:

     Too new to rate; approved but not used.
1     Pays (or paid) within 30 days of billing; pays account as agreed.

2     Pays (or paid) in more than 30 days, but not more than 60 days, or one payment past due.

3     Pays (or paid) in more than 60 days, but not more than 90 days, or two payments past due.

4     Pays (or paid) in more than 90 days, but not more than 120 days, or three or more payments   past due.

5     Account is at least 120 days overdue, but is not yet rated 9.

6.    (Code 6 does not exist.)

  7     Making regular payments under a consolidation order or similar arrangement.

    Repossession (indicate if it is a voluntary return of merchandise by the consumer).

    Bad debt; placed for collection; skip.

The FICO® score
The FICO® score, developed by Fair, Isaac (the pioneer in credit scoring) is a number between 300 and 850. A FICO® score is a snapshot of a person’s credit rating at a particular point in time. The higher the FICO® score the the better the credit rating.

Reporting Standards
Credit Bureaus share information within a system known as the National Equifax Network. The network observes strict standards governing reporting of adverse information and purging of credit

reporting records. The credit bureau must investigate and use its best efforts to confirm disputed negative information. 

A consumer has a right to full disclosure of the content and the source of any information on his or her file. The Registrar of Credit Reporting Agencies recognizes that all complainants consider their
issues to be very serious. For that reason the Credit Reporting Branch insists that credit reporting agencies and creditors provide prompt and complete reports to the consumer about adverse credit information.

Credit Reporting Acts Protect Several Rights of Consumers:

  1. The Act applies only to consumer transactions.
  2. Reports may be given to a person seeking information only for the purpose of: extending credit or collecting a debt; a tenancy inquiry employment or insurance verification under authority granted by a government statute otherwise, as a direct business requirement.
  3. Before a person may obtain a report, she or he must: have the consumer’s consent in writing, or notify the consumer by mailing a notice postmarked at least three days before obtaining the report.
  4. If a consumer is denied credit or has an increased cost as a result of information obtained in a credit report, the person must be notified promptly by the person denying credit.
  5. The consumer has a right to place a 100 word statement (50 recommended) on the credit bureau file, to be given to anyone who obtains a future report.
  6. A consumer has a right to see the file and has a right to receive a copy of any report.

 

Creditors’ Remedies

The action a creditor can take, in the case of a default on a loan, or money owed for goods or services supplied, to recover the monies owed to him will depend on the security the creditor has or the class of creditor he is.

 

Secured Creditors

A creditor with security has the strongest position of any creditor because he has the right to realize on his security or seize the assets covered by his security to repay the debt. A creditor may have the following security:

  • Mortgage

    Foreclosure is defined as that action that a lender will take to repossess and sell a piece of property for defaults in mortgage payments.

    The usual procedure is for the mortgage holder to hire a lawyer to commence the foreclosure procedure. A current valuation or an appraisal of the property is made to establish the value.

    Depending on the equity in the property or the anticipated shortfall, the lawyer, on behalf of the mortgage holder, will seek from the court an appropriate redemption period. i.e. the period of time the court will establish for which the property will be for sale before the owner will have to vacate and the time which potentially the mortgage holder can take control of the property.

    If there is a significant anticipated shortfall the lawyer for the mortgage holder will argue for no redemption period. If there is anticipated equity then the owner of the property will ask the court for a longer redemption period so the property can be sold in an orderly manner and not as a “fire sale”, thus allowing the owner to sell for as high a price as possible and therefore not suffer a loss or worse a shortfall. Typically the courts will grant a 6 month redemption period.

    Conduct of Sale is also a key issue. The court can grant conduct of sale to the owner or the mortgage holder usually dependent on the length of the redemption period.

    When a satisfactory offer has been received for the property the offer will be taken to court by the lawyer for the mortgage holder so the court can approve the sale.

    If there is a shortfall the mortgage holder will look to the owner to make up the shortfall.

    • Debenture or Security over all the Assets of a Business

 

The creditor who has this type of security should consult with a lawyer to ensure that the correct steps in the realization procedure have been followed. For example, 10 days notice for repayment must be given before an Agent or Receiver can be appointed to realize on the security (Section 244 of the Bankruptcy and Insolvency Act). In exceptional circumstances and with the approval of the court this notice period can be shortened. This period can also be shortened if the debtor waives the 10 day notice period.

    • Specific Security in Conjunction with the Sale of Inventory – Purchase Money Security Interest (PMSI – pronounced “pimzee”)

 

This type of security is covered under the Personal Property Security Acts of the provinces. It is security that a person takes in property, such as inventory, that secures payment with regard to those assets of all or part of its purchase price.

This type of security can be realized on but again a lawyer should be consulted to ensure the proper realization steps have been taken.

    • Specific Security taken over personal property (i.e. property belonging to an individual and not a corporate entity) such as a vehicle or furniture

This type of security is usually realized by utilizing a bailiff to seize the asset(s). Care should be exercised and perhaps a lawyer should be consulted to ensure the proper steps have been followed. For example, in BC, when seizing a vehicle that is personal property (i.e. property belonging to an individual and not a corporate entity) there is a “Seize of Sue” clause in effect. This has the effect that the creditor can seize or sue but not both. Therefore, if a vehicle is seized and then sold and there is a shortfall the creditor cannot pursue the debtor to make up the shortfall.

    • Bank Act Security

The Bank Act has a provision which allows Banks to take inventory as security. This security also gives the bank the right to collect receivables that arose because of the sale of that inventory.

  • Assignment of Book Accounts

    This type of security is usually taken by banks and is security covering the business’s Accounts Receivables.

Commercial Landlords

Landlords have special rights granted them by the clauses in the lease they sign with the tenant and by the laws of their province. For example, in BC the Commercial Tenancy Act, gives a landlord the right to Distrain or the seize the assets on the premises for payment of rental arrears. The landlord’s right to seize assets covers all the assets except those assets secured by certain creditors. A lawyer should be consulted to ensure the proper steps are taken to realize on a Rent Distraint.

Government Creditors such as CCRA and Student Loans

Government creditors have special rights as they are in the enviable position of being able to get specific collection laws enacted with much more ease than other creditors.

They rank before other creditors in the case of commercial debt for arrears of withholding taxes and collections of GST. In the case of student loans they have lobbied to have a special draconian law passed so that student loans, no matter what the hardship is, cannot be erased by bankruptcy unless the debtor has been out of school for 10 years.

Limitations Acts – “Statute of Limitations”

NOTE: Please check with a lawyer if the debt in question is significant. The law can change at any time, especially the law affecting the CRA. CRA has the habit of rewriting the law whenever a court decision goes against them.

The Federal Government and the Provinces have Limitation Acts which provide a limit on the time an unsecured debt survives. If an unsecured debt is not collected or payments are not made on the unsecured debt then after a certain time no legal action can be taken to collect the debt.

A March 4, 2003 decision of the Supreme Court of Canada, Markevich v. The Queen decided that limitations applied to CCRA as well as other Crown proceedings. Section 32 of the Crown Liability and Proceedings Act and Section 3 (5) of the BC Limitation Act barred collection of the Federal and Provincial portions of the debt since the debt was more than 6 years old. This decision was “overruled” when parliament amended section 222 of the Income Tax Act to provide for a 10 year limitation period.
Collins v. Canada, 2005 FCA 1431 CanLII.

Examples from various provinces and the Federal Government:

  • British Columbia – Section 3 (5) of the BC Limitation Act sets 6 years as the limit for debt.
  • Alberta – The Alberta Limitations Act sets 2 years as the term which is extended to 10 years if there is a judgement.
  • Ontario The Ontario Limitation Act 2002, came into force on January 1, 2004. It sets two years as the term (Section 4). This limitation will be reinstated where the debtor acknowledges the debt or makes a partial payment towards repayment of his debt. If the default occurred prior to January 1, 2004, the creditor will continue to have 6 years to pursue the claim. However, if the default occurred after January 1, 2004 then the 2-year rule applies.
  • Federal – Section 32 of the Crown Liability and Proceedings Act sets 6 years as the limit for debt.

 

Unsecured Creditors

Unsecured creditors have remedies which go from the relatively inexpensive to the more difficult and more expensive:

  • Dunning notices and phone calls to the debtor is the first step taken. The dunning letters get progressively stronger the longer the debtor goes without making a payment or an arrangement to settle the debt. It is important to be persistent and consistent in following-up so the debtor knows he must deal with this issue. Collection efforts can be persistent but collectors cannot phone at unreasonable hours or jeopardize the debtor’s job by interrupting him or her at work.
  • Seeking a judgement at court, especially Small Claims Court can be effective. Small Claims Courts deal with small sums of money and are less formal than regular courts. For example, in BC Small Claims Court can deal with issues involving sums up to $10,000. It might be prudent for the creditor to reduce his debt from say $12, 000 to $10,000 in order to use the facilities of the the Small Claims Court. It is common that people deal with issues at Small Claims Court without retaining a lawyer, although a lawyer can be retained if desired.

    An action is started simply by filling out a form supplied by the Small Claims Court and paying a fee. The Small Claims Court will send a notice to the debtor advising him of the action and asking for a response. A settlement conference is set. The Small Claims Court encourages settlement but a judgement can be issued. It is not unusual for default judgements to be granted. These are judgements on actions which the debtor did not contest.

    News Flash! March 30, 2005 – BC Makes it Easier to use Civil Courts. The BC government is making it easier for people to use the civil courts. Three major changes will take effect on September 1, 2005:

    • The upper limit of small claims court will rise to $25,000 from the current $10,000.
    • People will be allowed to sue the government in Provincial Court as well as BC Supreme Court.
    • A pilot program will test-drive a handful of cost-saving measures in cases in which the claim is for $25,000 to $100,000.

      Attorney-General Geoff Plant, who announced the changes at a Press Conference in Vancouver on March 20, 2005, said that approximately one-third of all the files in small-claims court are for exactly $10,000. “That shows that people want to go to that court so badly that they’re willing to abandon a portion of their real entitlement to get there,” Plant said.

  • Realizing on a judgement can be done by garnisheeing a bank account or seizing assets, usually with the services of a bailiff.
  • Petitioning the Debtor into Bankruptcy

    One purpose of the Bankruptcy and Insolvency Act (“the Act”) is to provide for the orderly and fair distribution of the property of a bankrupt amongst his or her creditors. The Act provides a mechanism under which all non-exempt property vests in a bankrupt’s Trustee. It also provides a summary method of inquiry into a bankrupt’s property and affairs to recover assets for the creditors benefit.

  • Generally speaking, the Act is intended to operate for the benefit of both bankrupts and their creditors. While the Act is not intended for use as a tool for collection of individual debts, in certain circumstances that use is permitted.

    WHEN MAY A CREDITOR FILE A PETITION
    TO PLACE A DEBTOR INTO BANKRUPTCY?

    A creditor may bring a Petition for a Receiving Order (i.e. an Order to adjudge someone bankrupt) where:

    1. It is owed over $1,000 on an unsecured basis – to achieve such status, security may be waived to the extent necessary; and
    2. There has been an act of bankruptcy by the debtor within the six months that precede filing of the Petition.


    Acts of bankruptcy include the following:

        • fraudulent conveyances, gifts, deliveries or transfers of property or the creation of charges thereon in circumstances which would constitute any such charge as a fraudulent preference;
        • the absenting of oneself from one’s dwelling house if done with intent to defeat or delay creditors;
        • the failure to satisfy a Writ of Seizure and Sale with the result that it is returned to the Court Registry marked “nulla bona” or “unable to locate assets”;
        • the exhibiting to a meeting of creditors of any statement of assets and liabilities that shows the debtor to be insolvent or admits of an inability to pay debts generally;
        • the secreting or removal of assets (or attempts thereat) with intent to defraud, defeat or delay creditors of any of them;
        • the giving of notice to any creditor that the debtor has suspended or is about to suspend payment of debts generally; and
        • the failure to pay liabilities generally as they become due.
        • An individual creditor can utilize the Act to Petition someone into bankruptcy – without proof of failure to pay other creditors – using grounds (1), (2), (3) and (5) above. Ground (7) above usually requires proof of at least two other creditors who are not being paid as agreed unless “special circumstances” pertain. “Special circumstances” have been held to pertain where there has been a breach of trust, fraud or near-fraud or (in some instances) repeated demands for payment and repeated default. It should, however, be kept in mind that strict proof of both your unsecured claim and an act of bankruptcy are necessary to have someone adjudged bankrupt.

     

  • WHEN SHOULD A CREDITOR PETITION
    A DEBTOR INTO BANKRUPTCY?

    In petitioning a debtor one has to retain a lawyer to prepare the necessary documents, attend to service and seek the Receiving Order before the Registrar in Bankruptcy or a Judge in Chambers. The petitioning creditor must also make arrangements for a Trustee to act and may be liable for payment of the costs incurred by the Trustee where realizations are insufficient for that purpose. To avert such a prospect, arrangements are usually made to limit the petitioning creditor’s obligation to the Trustee to the amount of an agreed “retainer”.

    Before deciding to launch a Petition the following should be considered:

    • The existence and amounts of preferred claims that may rank in priority; (NOTE: the Bankruptcy and Insolvency Act, effective November 30, 1992, did away with the preferred status for statutory creditors such as Revenue Canada Taxation, provincial and federal government claims.)
    • The quantum of unsecured claims which may rank pari passu;
    • The occurrence of preferences, reviewable transactions and/or settlements within the three month to five year review periods prior to the filing of your Petition;
    • Your receipt of payments beyond the “usual” amounts within the three months prior to filing of your Petition; and
    • The validity of any security you may hold.
    • There are certain instances where petitions for Receiving Orders are particularly potent tools. Some of them are the following:
      • Where the debtor has transferred property to another individual without fair consideration, such as transfer of house to related party for $1.00, settlement of debt, such as transfer of RRSP to insurance company or to prefer one creditor over all others;
      • Where your debtor does not wish to lose a particular element of his property (a yacht, exotic car, shares in a Company, etc.) or does not wish his affairs and dealings to be scrutinized by a Trustee and/or his creditors;
      • Where your debtor anticipates receipt of an inheritance;
      • Where you are dealing with a debtor who needs to be a Director or Officer of one or more Companies. The interaction of the Bankruptcy and Insolvency Act and the Company Act result in such a person ceasing to be a Director and ceasing to be eligible to be an Officer upon being adjudged bankrupt;
      • Where you are dealing with a debtor who may lose or have modified his professional accreditation as a result of being adjudged bankrupt; or
      • Where your debtor is a person who is always “dealing” and doesn’t wish to disclose his status as an undischarged bankrupt when entering upon negotiations or where he might lose the benefit of a particular contract, lease or business prospect by being adjudged bankrupt.


    PROCEDURE FOR PETITIONING OF A CREDITOR

    1. Letter of demand stating a bankruptcy petition will be lodged;
    2. Letter from lawyer stating that endorsed draft bankruptcy petition will be lodged on a specific date if settlement of matter is not performed before;
    3. Have an agreement with a Trustee that he acts as the Trustee in the petition; and
    4. When petition is granted, a third party retainer is forwarded to Trustee.

What Assets cannot be Seized by Unsecured Creditors

Unsecured creditors, when realizing on security pursuant to a judgement, and not security held, cannot seize certain assets protected by provincial or territorial law. The assets protected from seizure vary with the province or territory. The assets protected from seizure, are the same assets protected in the event of a bankruptcy and are listed by jurisdiction at this site.

Bankruptcy and Proposals Filed, Pursuant to the Bankruptcy and Insolvency Act, Stays or Stops all Collection Actions

By law, all actions against a bankrupt must cease once the documents are filed. This does not apply to secured creditors such as banks holding, for example, a lien on a car.

It does apply to a landlord who is in the process of a rent distraint. It also, in the case of filing a Proposal, pursuant to the Bankruptcy and Insolvency Act, prevents a secured creditor from realizing on his security until the proposal has been dealt with.

Funds in court seized by a creditor pursuant to a garnishment, after judgement, will be taken by the Trustee.

Links to More Information

Filing Small Claims Actions Online

Personal Property Security Acts

Personal Property Security Acts (PPSA) are registries set up in certain provinces (Ontario, New Brunswick, Nova Scotia, Saskatchewan, British Columbia, Newfoundland, Northwest Territories, Manitoba and Yukon), at which secured creditors register the security interest the have in assets of the company or person they lent money to.

Registration serves as a public notice that the interest exists against the collateral.

PPSA’s do not provide for registration of all secured assets. For example, the BC registry does not accept builders or warehousemen liens, judgments, real property mortgages, or motor vehicle ownership.

Federal PPSA

BC PPSA

Manitoba Personal Property Registry

NB Personal Property Registry

Newfoundland PPSA

NS Personal Property Registry

Northwest Territories PPSA

Ontario Personal Property Registry

Ontario PPSA

Saskatchewan PPSA

Remy Boghossian – Boghossian Law About Picking A Lawyer

Picking a Lawyer

When choosing a lawyer you will want one who specializes in the area of law you are concerned with. Friends, neighbours, work acquaintances, your accountant or other professionals you use may be able to refer you to a lawyer. If you have a lawyer you have used in the past but he/she doesn’t specialize in the area of law you are now concerned with that lawyer may be able to refer you to a lawyer. Websites are also great places to find a lawyer.

You’ll need to do some initial screening of your list of lawyers to whittle it down to three or four prospective candidates:

  • Look at biographical information, including whatever you can find on websites for the lawyers and their law firms. Do they appear to have expertise in the area you need? Do they have any information on their Web sites that is helpful to you?
  • Use search engines to surf the Internet. Can you find any articles, FAQ’s or other informational pieces the lawyer has done that give you a level of comfort? Cross check your references by doing searches using key words such as “Canadian personal injury lawyers” or “Canadian trial lawyers.”
  • Check to see if the lawyer belongs to any specialty associations,
  • Ask other people if they’ve heard of the lawyers and what they think about them.
  • Check out the yellow pages of your telephone directory. Does the lawyer advertise? If so, do you find it compelling? Helpful? Tasteful?
  • Before you hire a lawyer, ask for references. You want to talk to people who could comment on the lawyer’s skills and trustworthiness. Ask if it is okay to talk to some of the lawyer’s representative clients.
  • Ask for a copy of a firm brochure and promotional materials that the firm may have. Crosscheck these materials against your other sources and references.

 

Initial Meeting with the Lawyer

When you deal with a lawyer, as with all professionals, it is to your advantage to be well prepared and knowledgeable. Also make sure you give the lawyer FULL AND COMPLETE information concerning your situation. Your lawyer can give you the best help and advice only if he/she has all the facts.

The following tips will make the meeting efficient and productive:

  • Summarize your situation in chronological, point form. This not only provides information for your lawyer but aids you in focusing on relevant issues.
  • Bring along any relevant documents.
  • Tell your whole story, even if it is damaging or embarrassing. Your lawyer needs to consider all options. Anything you tell your lawyer for the purpose of obtaining legal advice is confidential and your lawyer is not allowed to disclose what you say without your consent.
  • Sometimes, a lawyer will try to facilitate the information gathering process by sending you a questionnaire to fill out in advance.
  • Prepare a list of questions to take with you to your first meeting. You have to feel comfortable with your lawyer. Remember that your lawyer is working for you. You want someone who is skilled, but you also have to get along with your lawyer.
    Questions and Issues you might discuss with your lawyer may include:

    • Talk to your lawyer about his or her legal opinion, especially if you are thinking about going to court. Find out about your options and alternatives. Make sure you and your lawyer agree on your plans and priorities and on the outcome you are looking for.
    • Does the lawyer need any more information in order to evaluation your situation?
    • How many similar cases has he or she handled?
    • What percent of his or her practice is in the area of expertise that you need?
    • What problems does the lawyer foresee with your file?
    • How would the lawyer go about handling your situation? What is the process, including the different stages, arrangement, filing of motions, motions hearing, examinations for discovery, hiring expert witnesses, trial?
    • How long will it take to bring the matter to a conclusion?
    • If the case is a criminal matter does the lawyer ever plea bargain? All the time? Never? Either of those answers could be a problem. Some cases likely should be plea bargained. Other cases likely should go to trial.
    • If the case is a personal injury matter, for example, does the lawyer like to settle his cases or go to trial?
    • How would the lawyer charge for his or her services?
    • Would the lawyer handle the case personally or would it be passed on to some other lawyer in the firm?
    • If other lawyers or staff may do some of the work, could you meet them?

 

How do Lawyers Charge, and How Much?

When you’re shopping for legal services, always ask potential lawyers to fully explain their fees and billing practices. Don’t hesitate to ask detailed questions and don’t be embarrassed. A lawyer’s willingness to discuss fees is an important indicator of how he or she treats clients.

Payment arrangements may include:

  • Hourly rates are the most common arrangement. The attorney gets paid an agreed-upon hourly rate for the hours he or she works on a client’s file or matter until it’s resolved. Cheaper is not necessarily better when it comes to your legal protection. A more expensive lawyer with a lot of experience may be able to handle a complex problem more quickly.
  • Flat Fees – Where a legal matter is simple and well defined, lawyers typically charge a flat fee. Examples of flat fee matters include wills and uncontested divorces. If a lawyer suggests or has advertised a flat fee, be sure you understand exactly what that fee will and will not cover. The flat fee might not include expenses such as filing fees.
  • A retainer fee is typically an advance payment on the hourly rate for a specific file. The lawyer puts the retainer in a trust account and deducts from that account the cost of services as they accrue. During the course of legal representation, clients should review periodic billing statements reflecting amounts deducted from the retainer. Most retainers are non-refundable unless labeled “unreasonable” by a court. If you decide to drop a case that your lawyer has worked on before the retainer has been exhausted, you may forfeit the remainder.
  • Contingency fee: (Note: These are the rules for British Columbia. For rules in other jurisdiction refer to the Law Society for your jurisdiction) In a contingency fee agreement, the lawyer acts for the client in return for a percentage of the money the client wins in a lawsuit. If no money is recovered, the lawyer collects no fee. Contingency fee agreements are common in personal injury claims, product liability cases and class actions.

    Contingency fee agreements must be in writing. Contingency fees are not permitted in family law cases involving child custody or access. They are permitted in other types of family law cases, but must be approved by the court.

    In a claim for personal injury or wrongful death arising out of a motor vehicle accident, the maximum contingency fee allowed is one-third of the amount recovered. In all other cases involving personal injury or wrongful death, the maximum allowed is 40% of the amount recovered. There are no maximum limits for contingency fees in cases not involving personal injury or wrongful death. Lawyers often vary their contingency fee rates depending on the amount of the claim, the degree of risk involved and the stage at which the case is resolved.

    In most contingency fee agreements, the client is required to pay all disbursements, such as medical reports, court filing fees and photocopying charges, regardless of the outcome of the case.

How much can you expect to pay?

Rates for legal fees vary based on location, experience of the lawyer, and the nature of the matter. Rates may vary anywhere from $50 an hour to a $1,000 an hour or more.

In rural areas and small towns, lawyers tend to charge less, and fees in the range of $100 to $200 an hour for an experienced attorney are probably the norm. In major metropolitan areas, the norm is probably closer to $200 to $400 an hour. Lawyers with expertise in specialized areas may charge much more.

What about Disbursements (expenses and court costs)?

Lawyers refer to all billing items other than fees as “disbursements”. Discuss with your lawyer anticipated miscellaneous costs so that you can estimate those costs up front and avoid any unpleasant surprises.

 

Law Office Personnel

A law office typically has many employees in addition to the lawyers. Knowing who these people are and what they do may help you to be a more informed client and make your lawyer’s representation more efficient. The law office hierarchy can include any of the following people:
·
Partners: People commonly refer to the owners of a law firm as being the “partners.” Partners are usually the most experienced lawyers in a firm and, consequently, they charge the highest fees.

Associates: Lawyers who’re employed by a firm but who aren’t owners are usually called “associates.” Generally, associates can be very good lawyers, but they typically have less experience than the partners of the firm. Although it varies from firm to firm, associates may have to work for perhaps three to 10 years before they are considered for partnership. Given their experience, associates tend to bill at lower rates than partners.

Articling students: Articling students are law school graduates who are training to be lawyers. They work under the supervision of a lawyer and are permitted to perform many of the tasks of a lawyer and are permitted to appear in court on certain matters.

Paralegals: A paralegal is someone who has legal training but who is not a lawyer. Paralegals can serve a very important role in a law firm by providing critical support to lawyers when they are working on files. In many instances, paralegals can have a practical working knowledge of the law that can make them more valuable to a law firm than a new associate. They are able to work under the supervision of a lawyer on the detail work that has to be done on every file but that cannot justify the high billing rates of a lawyer.

Legal Assistants: This is really a catchall term that is sometimes used by law firms to describe anyone in a law office who assists in working on legal matters. It may include paralegals, legal secretaries, and other support staff.

Legal Secretaries: Every lawyer is burdened with an endless barrage of administrative details and procedural requirements that are a part of practicing law. These duties and requirements can be a huge distraction for a lawyer who doesn’t have a competent legal secretary to organize and assist with the day-to-day affairs of his or her practice.

Receptionists: A firm of any size will have a legal receptionist. A receptionist is a very important person in the office, as he or she is the firm’s initial contact with the outside world.

Administrative Personnel: Larger law firms will have their own administrative personnel to run the internal operations of the firm. While administrative staff generally don’t charge for their services, they do constitute an overhead cost that is ultimately reflected in billing rates. Administrative staff may include accountants, bookkeepers, librarians, billing and accounts receivable personnel and human resources personnel.

 

Lawyers’ & Clients’ Responsibilities to Each Other

What are your lawyer’s professional obligations?
All lawyers are subject to strict standards of professional responsibility. These standards are set forth in codes of conduct and Privileges, ethics, rules of professional conduct that are established by provincial and territorial law societies. Here are some basic ethical and professional rules your lawyer must follow:

  • Your lawyer must represent you ethically, zealously and within the bounds of the law.
  • Your lawyer must competently analyze legal issues and exercise knowledge of the law applicable to your case.
  • He or she must communicate with you in a timely and effective manner.
  • Your lawyer owes you, as the client, a duty of loyalty. Your lawyer can’t simultaneously represent you and another client with legal interests that conflict with yours. An example of an obvious conflict would be representation of both the landlord and the tenant in an eviction action.
  • For so long as he or she continues to represent you, your lawyer is required to follow your directions in handling your case unless those directions are illegal.
  • Your lawyer must keep your personal property separate from his or her own property, and must keep your money in a trust account. Any time you demand it, your lawyer must return your money or property.
  • Except in rare circumstances, your lawyer is required to keep client confidences confidential.
  • Your attorney may have other responsibilities to you, depending on your case and the ethical rules that apply in your jurisdiction.

If a lawyer fails to abide by these rules, he or she can be disciplined by any law society of which he or she is a member. It’s possible the lawyer may even be disbarred for serious violations. Criminal prosecution is also a possibility. And a failure to comply with the rules may be the basis for a malpractice action.

What responsibilities do you owe your lawyer?
Look at the retainer agreement that you may have signed when you retained your lawyer. Typically, these agreements will set out certain duties and responsibilities of the client. By signing the agreement, you are contractually bound to abide by them. Such duties and responsibilities may include:

  • Being truthful with your lawyer.
  • Being cooperative with and responsive to your lawyer.
  • Being available to your lawyer and attending legal proceedings, as requested.
  • Paying your legal bills in a timely manner.

 

Ways to Keep your Legal Costs as Low as Possible

  • Prepare and be well organized for each meeting with your lawyer. Make sure you have all documents in order and that you have reviewed any documents your lawyer has sent you.
  • Keep your communications with your lawyer concise and organized. Don’t spend time discussing issues unrelated to your legal matter.
  • Tell your whole story, even if it is damaging or embarrassing. Your lawyer needs to consider all options. Anything you tell your lawyer is confidential and your lawyer is not allowed to disclose it without your consent.
  • Try to make the right decisions the first time. Frequently changing your mind will cost you money.
  • Get to know your lawyer’s assistants. If a secretary, legal assistant, articling student or junior lawyer can help you, contact that person instead of the most senior lawyer.
  • Find out if your expectations are reasonable. Talk to your lawyer about his or her legal opinion, especially if you are thinking about going to court.
  • Find out about your options and alternatives.
  • Make sure you and your lawyer agree on your plans and priorities and that they are likely to lead to the outcome you want.

 

Disagreement over Legal Fees

  • If you don’t understand some of the items on your bill or if you disagree with the amount, the first step is to talk it over with your lawyer. If your lawyer practices with a firm, there may be another member of the firm with whom you can discuss the bill. Go over the details and ask the lawyer to explain why a particular charge was made.
  • If you and your lawyer can’t resolve your differences, you have the right to have your lawyer’s fees taxed (reviewed) by a Registrar of your province’s Supreme Court. Normally, a review of a bill must take place within three months after it was paid or, if unpaid, within one year after it was sent to you. Contingency fee agreements can also be reviewed within three months after the agreement was made or terminated.
  • Some Law Societies offer an informal fee mediation service if both you and your lawyer agree this is appropriate. Under this program, an independent mediator will assist the lawyer and client to reach a mutually agreeable resolution. If you do not reach an agreement, you can apply for a fee review, provided the time limit for applying for a review has not expired. In BC the cost of the fee mediation is $25 for each party.

 

If you Feel your Lawyer is Unethical or Incompetent

A good first step is to talk to the lawyer or the lawyer’s firm. Misunderstandings can arise because of a lack of communication. Often you can resolve these misunderstandings simply by discussing your concerns. If not, you can write or call the Law Society’s Professional Conduct Department.

The Law Society has authority to review the conduct and competence of all lawyers, including lawyers in private practice, legal aid lawyers, government lawyers and Crown prosecutors. The Law Society can also review the conduct of a lawyer outside the practice of law if the conduct reflects on the legal profession. For more information on what the BC Law Society can do please refer to: Concerned about a Lawyer’s Conduct

 

Links to More Information

Provincial and Territorial Law Societies

Federal, Provincial and Territorial Courts

Remy Boghossian – Boghossian Law About Banking Law

Banks & Banking Law

The law of Banking applies to financial institutions and consumers of debt financing.

Clients are typically:

  • domestic and foreign banks,
  • bank holding companies,
  • leasing companies,
  • finance companies,
  • other financial institutions,
  • corporate,
  • government,
  • institutional,
  • individual and financial,
  • trustees in bankruptcy,
  • receivers,
  • borrowers when dealing with lenders or credit granters.

 

What Banking Law Encompasses

  • incorporation of banks;
  • all manner of corporate and private lending,
  • financing and refinancing;
  • cross-border and international banking transactions;
  • financial leasing;
  • loans;
  • electronic banking,
  • regulatory and corporate governance,
  • commercial and real estate lending,
  • consumer lending,
  • agricultural lending,
  • construction financing,
  • inventory financing by suppliers,
  • securitization transactions,
  • lending to aboriginal groups,
  • security documentation and registrations,
  • mortgage foreclosure,
  • debt and loan restructuring and work outs,
  • loan recovery and enforcement.,
  • loan security,
  • insolvency.

In Canada, the federal government has the exclusive constitutional power to legislate with respect to banks.

 

Personal Property Security Acts

Personal Property Security Acts (PPSA) are registries set up in certain provinces (Ontario, New Brunswick, Nova Scotia, Saskatchewan, British Columbia, Newfoundland, Northwest Territories, Manitoba and Yukon), at which secured creditors register the security interest the have in assets of the company or person they lent money to.

Registration serves as a public notice that the interest exists against the collateral.

PPSA’s do not provide for registration of all secured assets. For example, the BC registry does not accept builders or warehousemen liens, judgments, real property mortgages, or motor vehicle ownership.

Federal PPSA

BC PPSA

Manitoba Personal Property Registry

NB Personal Property Registry

Newfoundland PPSA

NS Personal Property Registry

Northwest Territories PPSA

Ontario Personal Property Registry

Ontario PPSA

Saskatchewan PPSA

 

Links to more Information

Banking Ombudsman

The Ombudsman for Banking Services and Investments (OBSI) is an independent organization that investigates customer complaints against financial services providers, including banks and other deposit-taking organizations, investment dealers, mutual fund dealers and mutual fund companies.

Bank Act

Remy Boghossian – Boghossian Law About Canadian Antitrust, Competition Law.

The Purpose of the Competition Act

Section 1.1 of the Competition Act states:

“The purpose of this Act is to maintain and encourage competition in Canada in order to promote the efficiency and adaptability of the Canadian economy, in order to expand opportunities for Canadian participation in world markets while at the same time recognizing the role of foreign competition in Canada, in order to ensure that small and medium-sized enterprises have an equitable opportunity to participate in the Canadian economy and in order to provide consumers with competitive prices and product choices.”

Some of the issues addressed are:

  • regulation of mergers and acquisitions among businesses with the policy goal of ensuring adequate and healthy competition within the economy;
  • conspiracy to lessen competition;
  • an agreement or arrangement between or among two or more persons whereby one or more of those persons agrees or undertakes not to submit a bid in response to a call or request for bids or tenders;
  • to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate;
  • agreements to fix prices;
  • knowingly or recklessly make a representation to the public that is false or misleading in a material respect;
  • engaging in a scheme of pyramid selling;

 

Enforcement of the Competition Act - The Competition Bureau

The Commissioner of Competition heads the Competition Bureau and is Canada’s chief antitrust enforcement official. The Commissioner is appointed by the federal cabinet and has exclusive statutory responsibility for administration and enforcement of the Competition Act. The Commissioner can launch inquiries, challenge civil matters before the Competition Tribunal and refer evidence of criminal offenses to Canada’s Attorney General (who then decides whether to launch criminal proceedings).

The Commissioner is obliged to commence a formal inquiry whenever:

  • a criminal offense has been, or is about to be, committed;
  • grounds exist for the Tribunal to make an order regarding a reviewable practice;
  • so directed by the federal Minister of Industry; or
  • on the sworn application of six Canadian residents.

The Competition Bureau is part of the federal Department of Industry and provides administrative support to the Commissioner. Deputy Commissioners and Chief Officers are appointed to oversee separate branches which enforce the merger, marketing practices, civil matters, criminal matters and marketing practices portions of the Competition Act. There are also two support branches: Compliance and Operations and Economics and International Affairs. In addition, the Amendments Branch has responsibility to amend the Competition Act


Adjudicating Alleged Violations of the Competition Act

The Competition Tribunal is Canada’s adjudicative body for competition law and is governed by the Competition Tribunal Act. It is composed of both judges from the Federal Court – Trial Division and non-judicial members who are experts in the fields of business or economics.

The Tribunal has neither investigatory powers nor independent authority to consider a matter except on referral by the Commissioner of Competition who will first conduct a thorough investigation and attempt to resolve any antitrust concerns. Private parties do not have the right to initiate proceedings respecting a reviewable practice that the Commissioner has declined to challenge.

However, interested parties may “intervene” once the Commissioner has initiated a Tribunal proceeding. Parties may appeal a Tribunal decision as if it was a decision of the Federal Court – Trial Division.

 

Links to more Information

Competition Act

Competition Tribunal Act

Competition Tribunal Website

Remy Boghossian – Boghossian Law About Canadian Information and Technology Law.

This area of the law covers the following:

  • the protection of software, multimedia products, electronic databases and other information-based assets through copyright, patent, trade secret and trade mark laws;
  • criminal law – the manner in which Canada’s Criminal Code applies to computer crime activities such as hacking and virus implantation;
  • regulatory laws – the regulation of data protection, privacy, the control of high technology exports, and the regulation of the Internet;
  • commercial law – the impact of contract, competition, sales, bankruptcy and tax laws on the distribution and sale of computers and information-based products and services, including the drafting and negotiation of a wide variety of agreements for the supply of computer-based resources; and
  • electronic commerce and Internet law – the contract, evidence, libel and other laws affected by our transformation from a paper-based to a computer and electronic-network-based society.

    References

    Personal Information Protection and Electronic Documents Act

    Canadian Government Online

    Government Online Checklist of Legal Issues

    Current Statutory Reform Initiatives in Canada

Remy Boghossian – Boghossian Law About Banking Accesss

The laws of Canada have guarantees that banking accesss cannot be denied, except in exceptional circumstances.

The law is set out in Sections 3, 4 and 5 of the Access to Basic Banking Services Regulations of the Bank Act .

3. (1) Subject to subsection (2), subsection 448.1(1) of the Act does not apply in the following circumstances:

( a ) if the member bank has reasonable grounds to believe that the retail deposit account will be used for illegal or fraudulent purposes;

( b ) if the individual has a history of illegal or fraudulent activity in relation to providers of financial services and if the most recent instance of such activity occurred less than seven years before the day on which the request to open a retail deposit account is made;

( c ) if the member bank has reasonable grounds to believe that the individual, for the purpose of opening the retail deposit account, knowingly made a material misrepresentation in the information provided to the member bank;

( d ) if the member bank has reasonable grounds to believe that it is necessary to refuse to open the retail deposit account in order to protect the customers or employees of the member bank from physical harm, harassment or other abuse; or

( e ) if the request is made at a branch or point of service of a member bank at which the only retail deposit accounts offered are those that are linked to an account at another financial institution.

Bankruptcy (2) For greater certainty and for the purpose of paragraph (1)( a ), the fact that the individual is or has been a bankrupt does not, by itself without any evidence of fraud or any other illegal activity in relation to the bankruptcy, constitute reasonable grounds for a member bank to believe that an account for the individual will be used for illegal or fraudulent purposes.

4. (1) Subject to subsection (2) and for the purpose of subsection 448.1(1) of the Act, the conditions to be met by an individual who is requesting that a member bank open a retail deposit account for the individual are as follows:

( a ) the individual shall present to the member bank

(i) two pieces of identification from among those set out in Part A or B of the schedule at least one of which is from among those set out in Part A of the schedule, or

(ii) one piece of identification from among those set out in Part A of the schedule, if the identity of the individual is also confirmed by a client in good standing with the member bank or by an individual of good standing in the community where the member bank is situated;

( b ) the individual shall disclose, orally or in writing, the information listed in Part C of the schedule if the information is not available on the pieces of identification presented by the individual; and

( c ) if the member bank requests, the individual shall consent to the member bank’s verifying whether any of the circumstances set out in paragraphs 3(1)( a ) to ( d ) apply to the individual, and to the member bank’s verifying the pieces of identification presented by the individual.

5. If the member bank refuses to open a retail deposit account owing to the existence of any of the circumstances set out in paragraphs 3(1)( a ) to ( e ) or owing to the individual’s not meeting the conditions prescribed under these Regulations, the member bank shall provide to the individual, in writing,

( a ) notice of its refusal to open the account; and

( b ) a statement indicating that the individual may contact the Agency if they have a complaint and how the individual can contact the Agency.

PART A

1. A drivers’ licence issued in Canada, as permitted to be used for identification purposes under provincial law

2. A Canadian passport

3. A Certificate of Canadian Citizenship or a Certification of Naturalization, in the form of a paper document or card but not a commemorative issue

4. A Permanent Resident card or Citizenship and Immigration Canada Form IMM 1000 or IMM 1442

5. A birth certificate issued in Canada

6. A Social Insurance Number card issued by the Government of Canada

7. An Old Age Security card issued by the Government of Canada

8. A Certificate of Indian Status issued by the Government of Canada

9. A provincial health insurance card, as permitted to be used for identification purposes under provincial law

10. A document or card, bearing the individual’s photograph and signature, issued by any of the following authorities or their successors:

( a ) Insurance Corporation of British Columbia

( b ) Alberta Registries

( c ) Saskatchewan Government Insurance

( d ) Department of Service Nova Scotia and Municipal Relations

( e ) Department of Transportation and Public Works of the Province of Prince Edward Island

( f ) Service New Brunswick

( g ) Department of Government Services and Lands of the Province of Newfoundland and Labrador

( h ) Department of Transportation of the Northwest Territories

( i ) Department of Community Government and Transportation of the Territory of Nunavut

PART B

1. An employee identity card, issued by an employer that is well known in the community, bearing the individual’s photograph

2. A bank or automated banking machine or client card, issued by a member of the Canadian Payments Association in the name of, or bearing the name of, the individual and bearing the individual’s signature

3. A credit card, issued by a member of the Canadian Payments Association in the name of, or bearing the name of, the individual and bearing the individual’s signature

4. A Canadian National Institute for the Blind (CNIB) client card bearing the individual’s photograph and signature

5. A foreign passport

PART C

  • 1. The individual’s name
  • 2. The individual’s date of birth
  • 3. The individual’s address, if any
  • 4. The individual’s occupation, if any

Have a question or complaint?

Call 1-866-461-3222 or e-mail the Financial Consumer Agency of Canada If you believe that a financial institution has breached a consumer law.

You can also lodge a complaint through the Banking Ombudsman .

The Ombudsman for Banking Services and Investments (OBSI) is an independent organization that investigates customer complaints against financial services providers, including banks and other deposit-taking organizations, investment dealers, mutual fund dealers and mutual fund companies.

Remy Boghossian – Boghossian Law About Fraud

What is Fraud?

Fraud:
Deceitful conduct designed to manipulate another person to give something of value by:

  1. lying,
  2. by repeating something that is or ought to have been known by the fraudulent party as false or suspect or
  3. by concealing a fact from the other party which may have saved that party from being cheated.

Canadian Laws Dealing With Fraud

  • Competition Act – An Act to provide for the general regulation of trade and commerce.
    CHAPTER C-

    False or misleading representations
    52. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or … any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.(5) … liable to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

 

  • Deceptive telemarketing
    Amendments to the federal Competition Act (Bill C-20) create new offences relating to “deceptive telemarketing”. A further amendment was included in Bill C-51 to define the new offences as “enterprise crime”, bringing them within the scope of the Criminal Code scheme for seizure and forfeiture of proceeds.

No person who engages in telemarketing shall:

  • make a representation that is false or misleading in a material respect;
  • conduct or purport to conduct a contest, lottery or game of chance, skill or mixed chance and skill, where:
    • the delivery of a prize or other benefit to a participant in the contest, lottery or game is, or is represented to be, conditional on the prior payment of any amount by the participant, or
    • adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the person’s knowledge, that affects materially the chances of winning;
  • offer a product at no cost, or at a price less than the fair market value of the product, in consideration of the supply or use of another product, unless fair, reasonable and timely disclosure is made of the fair market value of the first product and of any restrictions, terms or conditions applicable to its supply to the purchaser; or
  • offer a product for sale at a price grossly in excess of its fair market value, where delivery of the product is, or is represented to be, conditional on prior payment by the purchaser.

Penalty

The offence created by Bill C-20 is hybrid; it is punishable by five years imprisonment and/or an unlimited fine for the indictable offence or by a maximum of 1 year imprisonment and/or a $200,000 fine for the summary offence (ss.52.1 (9) Competition Act ) . The Criminal Code offence of fraud is punishable by ten years imprisonment where the value of the suspect/matter of the fraud is at least $5,000. It is punishable by two years imprisonment in other cases.

Offences by employees or agents
(7) … for the prosecution of a corporation … it is sufficient proof of the offence to establish that it was committed by an employee or agent … whether or not the employee or agent is identified, unless the corporation … exercised due diligence to prevent … the offence.

Liability of officers and directors
(8) Where a corporation commits an offence … any officer or director … in a position to direct or influence the … conduct … is a party to and guilty of the offence … whether or not the corporation has been prosecuted or convicted, unless the officer or director establishes … due diligence to prevent the … offence.

(9) … liable (a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding five years, or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

Sentencing
(10) In sentencing … the court shall consider … the following aggravating factors:

(a) the use of lists of persons previously deceived by means of telemarketing; (b) characteristics of the persons to whom the telemarketing was directed, including classes of persons who are especially vulnerable to abusive tactics; (c) the amount of the proceeds realized … (d) previous convictions … in respect of conduct prohibited by this section; and (e) the manner in which information is conveyed, including the use of abusive tactics.

Multi-level marketing plans
55. (1) … “multi-level marketing plan” means a plan for the supply of a product whereby a participant in the plan receives compensation for the supply of the product to another participant in the plan who, in turn, receives compensation for the supply of the same or another product to other participants in the plan.

(2) No person … shall make any representations relating to compensation … unless … fair, reasonable and timely disclosure of …

(a) compensation actually received by typical participants in the plan; or

(b) compensation likely to be received by typical participants in the plan, having regard to any relevant considerations, including

(i) the nature of the product, including its price and availability, (ii) the nature of the relevant market for the product, (iii) the nature of the plan and similar plans, and (iv) whether the person who operates the plan is a corporation, partnership, sole proprietorship or other form of business organization.

(3) … liable (a) on conviction on indictment, to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

Pyramid Selling Schemes
55.1 (1) … “scheme of pyramid selling” means a multi-level marketing plan whereby (a) a participant in the plan gives consideration for the right to receive compensation by reason of the recruitment into the plan of another participant in the plan who gives consideration for the same right;
(b) a participant in the plan gives consideration, as a condition of participating in the plan, for a specified amount of the product, other than a specified amount of the product that is bought at the seller’s cost price for the purpose only of facilitating sales;
(c) a person knowingly supplies the product to a participant in the plan in an amount that is commercially unreasonable; or
(d) a participant in the plan who is supplied with the product (i) does not have a buy-back guarantee that is exercisable on reasonable commercial terms or a right to return the product in saleable condition on reasonable commercial terms, or
(ii) is not informed of the existence of the guarantee or right and the manner in which it can be exercised.


(2) No person shall establish, operate, advertise or promote a scheme of pyramid selling.

(3) … liable … to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both; or (b) on summary conviction, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding one year, or to both.

Obstruction
64. (1) No person shall in any manner impede or prevent or attempt to impede or prevent any inquiry or examination under this Act. (2) … liable … to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding two years or to both.

Failure to supply information
(2) Every person who, without good and sufficient cause, the proof of which lies on that person, contravenes section 114 or 123 is guilty of an offence and liable on summary conviction or on conviction on indictment to a fine not exceeding $50,000.

Destruction or alteration of records or things
(3) Every person who destroys or alters … any record or other thing that is required to be produced … in respect of a warrant … liable (a) on summary conviction to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding two years or to both; or (b) on conviction on indictment to a fine not exceeding fifty thousand dollars or to imprisonment for a term not exceeding five years or to both.

Liability of directors
(4) Where a corporation commits an offence under this section, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and is liable to the punishment provided for the offence whether or not the corporation has been prosecuted or convicted.

Limitation period
(6) Proceedings in respect of an offence that is declared by this Act to be punishable on summary conviction may be instituted at any time within but not later than two years after the time when the subject-matter of the proceedings arose.

PART VII.1 DECEPTIVE MARKETING PRACTICES
Misrepresentations to public
74.01 (1) A person … who, for the purpose of promoting, … the supply or use of a product or … any business interest, by any means whatever, (a) makes a representation to the public that is false or misleading in a material respect.

Representation as to reasonable test and publication of testimonials
74.02 A person … who, for the purpose of promoting … any product… or any business interest, makes a representation … that a test has been made as to the performance, efficacy or length of life of a product by any person, or publishes a testimonial with respect to a product.

Bait and switch selling
(2) A person … who advertises at a bargain price a product that the person does not supply in reasonable quantities having regard to the nature of the market in which the person carries on business, the nature and size of the person’s business and the nature of the advertisement.

Promotional contests
74.06 A person … promoting, … a product … or any business interest, conducts any contest, lottery, game of chance or skill, or mixed chance and skill, … where (a) adequate and fair disclosure is not made of the number and approximate value of the prizes, of the area or areas to which they relate and of any fact within the knowledge of the person that affects materially the chances of winning; (b) distribution of the prizes is unduly delayed; or (c) selection of participants or distribution of prizes is not made on the basis of skill or on a random basis in any area to which prizes have been allocated.

74.1 (1) Where, … a court determines that a person is engaging in or has engaged in reviewable conduct under this Part, the court may order the person (a) not to engage in the conduct or substantially similar reviewable conduct; … (c) to pay an administrative monetary penalty, in such manner as the court may specify, in an amount not exceeding (i) in the case of an individual, $50,000 and, for each subsequent order, $100,000, or (ii) in the case of a corporation, $100,000 and, for each subsequent order, $200,000.

(5) Any evidence of the aggravating or mitigating factors shall be taken into account in determining the amount of an administrative monetary penalty under paragraph (1)(c):

Remy Boghossian – Boghossian Law About Canadian Bankruptcy Reform

The final new laws on Canadian Bankruptcy Reform went into effect on September 18, 2009.

It is now going to take longer to get out of bankruptcy and it will cost more. It is estimated that the harsher laws will affect 25% of the people who file bankruptcy.

If you are one of the persons affected you should seriously consider making a proposal.

Here are the rules:

- 9 month automatic discharge for 1st. time bankrupts who fulfill all their duties and who do not have excess income.  e.g. less than $3,062.00 a month take home pay for a family of 3. (Note: 1)

- 21 months (or more at the court’s discretion) for 1st. time bankrupts who fulfill all their duties. and who have excess income. e.g. more than $3,062.00 a month take home pay for a family of 3. (Note: 1)

-24 months for 2nd time bankrupts who do not have excess income.. e.g. less than $3,062.00 a month take home pay for a family of 3. (Note: 1)

-36 months for 2nd time bankrupts who have excess income. e.g. more than $3,062.00 a month take home pay for a family of 3. (Note: 1)

-Bankrupts with personal income tax debt of $200,000.00 or more representing 75 percent or more of total unsecured claims, are not eligible for an automatic discharge. They must go to court for an adjudication.

Note: 1 Surplus Income Standards for 2009/10

What if your non-bankruptcy spouse refuses to divulge his or her income to the trustee?

The government has imposed a stiff penalty if your non bankrupt spouse refuses to divulge his or her income to the trustee.

If your spouse works and is not going to file for bankruptcy, the trustee is obligated to base your monthly payments on family income including the income of the non-bankrupt spouse.  The non-bankrupt spouse can refuse to divulge his or her income to the trustee, in which case the trustee will calculate the monthly payments excluding the non-bankruptcy spouse from the calculation but only allowing 50% of the applicable Superintendent’s standards corresponding to the number of person in the family unit, including the spouse who would not divulge his or her income.

If you wish to see how this affects the monthly payments you will be obliged to make, you can get a close approximation by using the Personal Bankruptcy Predictor at www.BankruptcyCanada.com

Consumer Bankruptcy, Insolvency

The major purpose of consumer insolvency is to give a person, hopelessly burdened with debt, the opportunity of a fresh financial start. A person going into bankruptcy is usually out of bankruptcy in nine months. All his debt with some exceptions are erased upon his discharge.

A debtor can also file a proposal to his creditors thus avoiding bankruptcy. Proposals allow only a portion of the debt to be repaid. Proposals are almost always accepted by creditors.

There are two types of professional a debtor can get help and advice from; an insolvency lawyer and a trustee in bankruptcy. Every debtor who files bankruptcy or a proposal must deal with a trustee in bankruptcy as only trustees are licenced by the federal government to administer bankruptcies and proposals.

A debtor should seek advice from an insolvency lawyer if he has complicated issues or if a considerable amount of money is involved. Trustees are trained to recognize complicated issues that debtors have and often refer debtors to an insolvency lawyer when the trustee feels a conflict of interest may arise.

Links to More Consumer Information:

Commercial Bankruptcy, Insolvency

Businesses can be petitioned into bankruptcy or placed into receivership by the financial institute or lender who has security. The lender, when he has evidence to suggest the business is in serious financial difficulty, will take this action in order to cut his losses and to realize on his security. Lenders use insolvency lawyers to ensure they are acting within the law and to preserve their rights to pursue the principal personally for any shortfall.

A principal of a business often has compelling reasons for placing the business into bankruptcy or convincing the lender to place the business into receivership:

  • By acting in a timely fashion the business assets may be sold for sufficient money to pay off the creditors or get as much as possible for the secured creditor and priority creditors so the principal’s personal guarantees and statutory obligations are not called upon;
  • The principal may simply be exhausted from the stress and pressure of fighting a losing battle trying to save the company and want someone to take over the winding up;
  • The principal may want a professional to liquidate the business so the creditors are paid out in an orderly fashion in accordance with the security and priorities they enjoy.
  • The principal may want a professional to liquidate the business so that the creditors will know that the funds have been paid out correctly and that a report will be made to the creditors so they know that no funds were diverted by the principal.

 

Commercial Proposals

More businesses “go under” or fail than is necessary! Very often a business can be “saved” if caught in time. Even if a company is insolvent it may be possible to save the company by using a provision under the Bankruptcy and Insolvency Act to file a Proposal, (an arrangement) with the creditors of the company.

The way a Proposal works is that a company, through a Trustee in Bankruptcy, files the Proposal (“offer”), to the company’s creditors asking them to accept less than the monies they are owed in order that the company might survive.

The trustee works with the owners of the company in drafting a Proposal that presents a “win – win” situation for both the company and the creditors. Typically, the creditors are asked to give up rights to the monies they are owed in exchange for an offer by the company to pay so many cents on the dollar (say, 25 or 50 or 75 cents) over time. Sometimes the company pays back 100% of what it owes but it is granted a period of time, say 6 months or a year, in which it makes no payments.

In a successful Proposal the company wins because it survives. The creditors win because they retain a customer and also because they get some of their money whereas in a bankruptcy they probably would get nothing.

As was the case, above, with consumer insolvency there are two types of professional a debtor can get help and advice from; an insolvency lawyer and a trustee in bankruptcy. Every debtor who’s business goes into bankruptcy, receivership, or files a proposal must deal with a trustee in bankruptcy as only trustees are licenced by the federal government to administer bankruptcies and proposals.

A debtor should seek advice from an insolvency lawyer if he has complicated issues or if a considerable amount of money is involved. Trustees are trained to recognize complicated issues that debtors have and often refer debtors to an insolvency lawyer.

Links to More Commercial Information

Saskatchewan

Manitoba

Newfoundland Bankruptcy Information;

Ontario Bankruptcy Information;

Ontario Bankruptcy Trustees;

Quebec Bankruptcy Trustees;

NB & PEI Bankruptcy Information;

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Remy Boghossian – Boghossian Law About Incorporating a Business

When a company is incorporated a new legal entity is created.

Benefits of Incorporating

  • Personal Liability Protection;
    This is the number one reason why many people incorporate. In case of a lawsuit or judgment against your business, no one can seize your personal assets unless you have pledged these as collateral. There are other liabilities which you will not be able to avoid by incorporating. For example, if you do not remit certain taxes, you could be held liable as a director or officer of the company.
  • Potential Tax Advantages;
    There are more tax options available to corporations than there are to proprietorships or partnerships. You can establish various pension, profit-sharing and stock option plans which are favorable to the owners of the corporation. For example, in most cases, a corporation can deduct your life and health insurance premiums whereas you could not do this personally. You can also pay salaries to family members thereby reducing your family’s overall tax burden.
  • Flexibility in Personal Financial Planning;
  • Greater Control in Transferring Ownership;
  • Easier to Bring in Outside Investors and Other Partners;
  • A Company Survives Human Death.

 

Protecting Assets from a Financial Disaster

It is prudent, when starting a business to plan for a disaster. The following are tips from Earl Sands, a trustee in bankruptcy who has seen many of these tips ignored with disastrous results:

  1. Get professional advice before the business commences.  This is the time to put a creditor proofing plan in place.
  2. Incorporation not only has income tax benefits, but also provides for a level of creditor protection.  Consider incorporating if the size of the business warrants or the nature of the business is litigious.
  3. Only one spouse should be a director or officer. The other can be still be a shareholder or employee, but should not be a director or officer.  This should minimize the risk of joint and several director’s liability for certain statutory debts.
  4. Always pay statutory debt on time (source deductions, GST, wages and PST).  Directors and officers can be personally responsible for these debts.
  5. Don’t have significant assets in your personal name.  If possible, consider having assets in a spouse’s name or a family trust.  One should be cautious of the Family Relations Act when placing assets in the name of a spouse.
  6. Do not give a personal guarantee to suppliers or a landlord unless it is absolutely necessary.  Do not give your spouse’s guarantee to a lender.  Simply state “a personal guarantee is not available”.  The results are surprising!
  7. Have only the corporation borrow funds from the bank.  Don’t let the bank lend the funds in your personal name.  This will ensure the bank is the first person paid in the event of a liquidation of a business.  This will continue to apply even if personal security is required for the loan.
  8. If a family member or a principal of a company lends money to a company, have that person take back security.  Ensure proper documents are prepared and register the security.  If the loan is not documented and registered, a trustee may be able to recover any preferential payments made to the family member or principal (payments within a year of the bankruptcy could be considered fraudulent preferences under the Bankruptcy and Insolvency Act).
  9. Invest in RRSP’s that are “judgment proof”.  If the worst happens you still have retirement funds.
  10. Be cautious of rapid business expansion.  Recognize the risks of expansion as well as the opportunities.  Many businesses fail because they under bid a job, expanded too quickly, or did not have the resources to finish a project.
  11. Plan for succession well in advance.  A successful business requires a successor.
  12. If the business incurs financial difficulty, seek professional advice early.  Many businesses wait too long – early advice may have saved them.  Proposals to creditors made under the Bankruptcy and Insolvency Act are very effective and usually accepted.
  13. Know when to quit.  If a business is in financial difficulty, decide on the amount of personal funds that will be expended to attempt to save it.

 

Directors’ Liability

 

When a limited company goes bankrupt and there is a shortfall to creditors, the directors in most cases are not liable for any shortfall.

The directors are liable for a shortfall only if they have given personal guarantees for debt or if laws have been passed specifying that directors will be liable if there is a shortfall. These statutory creditors are as follows:

 

  1. Wages of employees – Directors are responsible for wages in accordance with the laws in the various provinces. An exception is in BC where directors are not liable for wages effective with the Employment Standards Act that came into force on May 31, 2002. Where the corporation is in receivership, bankruptcy or subject to action under Section 427 of the Bank Act, the director or officer of a corporation is not personally liable for severance pay.
  2. Source Deductions – Officers and directors are personally liable for unpaid source deductions.
  3. GST – Directors and officers are personally liable for GST owing.
  4. Provincial Sales Tax  – Directors and officers are personally liable for PST owing in some of the provinces.  For example, in B.C. if they were “hands on” managers and hence knew or should have known that PST should have been remitted. [BC Court of Appeal "R. Vs. Thomas D'Sena" - 1995]

Commercial Bankruptcy, Insolvency

Businesses can be petitioned into bankruptcy or placed into receivership by the financial institute or lender who has security. The lender, when he has evidence to suggest the business is in serious financial difficulty, will take this action in order to cut his losses and to realize on his security. Lender use insolvency lawyers to ensure they are acting within the law and to preserve their rights to pursue the principal personally for any shortfall.

A principal of a business often has compelling reasons for placing the business into bankruptcy or convincing the lender to place the business into receivership:

  • By acting in a timely fashion the business assets may be sold for sufficient money to pay off the creditors or get as much as possible for the secured creditor and priority creditors so the principal’s personal guarantees and statutory obligations are not called upon;
  • The principal may simply be exhausted from the stress and pressure of fighting a losing battle trying to save the company and want someone to take over the winding up;
  • The principal may want a professional to liquidate the business so the creditors are paid out in an orderly fashion in accordance with the security and priorities they enjoy.
  • The principal may want a professional to liquidate the business so that the creditors will know that the funds have been paid out correctly and that a report will be made to the creditors so they know that no funds were diverted by the principal.

 

Commercial Proposals

More businesses “go under” or fail than is necessary! Very often a business can be “saved” if caught in time. Even if a company is insolvent it may be possible to save the company by using a provision under the Bankruptcy and Insolvency Act to file a Proposal, (an arrangement) with the creditors of the company.

The way a Proposal works is that a company, through a Trustee in Bankruptcy, files the Proposal (“offer”), to the company’s creditors asking them to accept less than the monies they are owed in order that the company might survive.

The trustee works with the owners of the company in drafting a Proposal that presents a “win – win” situation for both the company and the creditors. Typically, the creditors are asked to give up rights to the monies they are owed in exchange for an offer by the company to pay so many cents on the dollar (say, 25 or 50 or 75 cents) over time. Sometimes the company pays back 100% of what it owes but it is granted a period of time, say 6 months or a year, in which it makes no payments.

In a successful Proposal the company wins because it survives. The creditors win because they retain a customer and also because they get some of their money whereas in a bankruptcy they probably would get nothing.

There are two types of professional a debtor can get help and advice from; an insolvency lawyer and a trustee in bankruptcy. Every debtor who’s business goes into bankruptcy, receivership, or files a proposal must deal with a trustee in bankruptcy as only trustees are licenced by the federal government to administer bankruptcies and proposals.

A debtor should seek advice from an insolvency lawyer if he has complicated issues or if a considerable amount of money is involved. Trustees are trained to recognize complicated issues that debtors have and often refer debtors to an insolvency lawyer in order to avoid a conflict.

More Commercial Insolvency Information

Bankruptcy Predictor – Measure the financial strength of your company!

CCRA (Revenue Canada) - Yes! They Will Make a Deal on Taxes Owed!

Business Proposals - Saving a Company from Bankruptcy!

A Proposal Story - An Article from the CGA Magazine

Business Bankruptcies/Receiverships - What Happens?

Rent Distraint!

Petitioning a Debtor into Bankruptcy.

Insolvency Prediction. - Formulas that predict whether a business will fail!

Creditor Proofing  - Protection in a litigious world!

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Tax

Business Information Service
This site included the following tax information:

  • Prescribed interest rates;
  • Registration;
  • Goods and services tax/harmonized sales tax;
  • Payroll deductions and employers’ responsibilities;
  • Corporations, individuals who are self-employed, and partnerships;
  • Importing/exporting.

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Links to more Information

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The Corporate and Insolvency Law Policy Directorate is responsible for the review and revision of a number of Canada’s business framework laws in the insolvency and corporate areas.

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