Resources & Tools
Conference Room Rental
Did you know that you could book your meeting in the Surrey Board of Trade Conference Room? Only SBOT members have access to this professional, well-equipped, and affordable space.
With rates starting at $50.00 plus tax, we can provide you with refreshments and the equipment needed to conduct a successful meeting.
What is included?
- Seating: 30 people
- 2 Large TV Screens that casts everything from the desktop using Wi-Fi. Complimentary Wi-Fi
- Kitchen Access included
- Water and Coffee included
- Free Parking
- Professional Greeter for your guests
- Conference Phone
- Flip Chart/Pens
- TV Monitor
Government Business Guides
Did you know that BC has the most small businesses per capital than any other province or territory? The Government of BC produces several business guides and reports. Topics include: small business resources, starting a small business, importing and exporting, doing business with the government and the BC Jobs plan.
Emergency Response Toolkit
The Surrey Board of Trade, in partnership with WorkSafeBC, has created and launched an Emergency Response Toolkit for Business. Emergencies and disasters can occur at any time without warning. The more you are prepared for them, the better you will be able to act, minimizing panic and confusion when an emergency occurs. Additional information and training for your company’s emergency response teams is available through the Care Institute of Safety & Health Inc.
- McQuarrie Hunter LLP
- City of Surrey
- Surrey Databases – Surrey Libraries
- BC Business Registry
- Corporate Online
- Western Economic Diversification Canada
- Small Business BC
- Government of BC
- BC Ministry of Finance
- Vancouver Job Shop
- Canada Business Network
- Women’s Enterprise Centre
Business and the Legal Articles
Don’t Lose Your Mortgage Security
The British Columbia Court of Appeal recently ruled on a subject that will be of interest to anyone lending money in the province. This decision illustrates potential consequences for lenders who fail to collect debt within the limitation period, which can be as short as two years from the first breach or defect.
In Leatherman v 0969708 BC Ltd., the borrower agreed to pay back the lender on demand and a mortgage was registered against the borrower’s real property to secure the debt. The borrower was required to make annual interest payments until the demand was made. In addition, the lender had the right to enforce the mortgage security upon default. The borrower subsequently failed to make the interest payments in accordance with the agreement from October 2013 onwards, but the lender did not take any action against the borrower. In November 2015, the two parties exchanged correspondence about the debt and its repayment. In October 2016 the borrower again failed to make the interest payment as agreed upon. In response, the lender issued a demand for repayment and commenced foreclosure proceedings against the property.
The Limitation Act limits the time in which someone may make a civil claim to a two-year period for most civil claims. Generally this two-year period begins on the date that the claim is considered ‘discovered.’ The issue in this case was whether the lender began the foreclosure proceedings within the limitation period.
In its decision the Court stated that the two-year period to enforce the mortgage security ran from the first default and not the date of demand. Since the lender did not commence an action within two years of the borrower failing to make the first interest payment, they were not able to make a claim to enforce the mortgage security. As a result, the mortgage security was no longer enforceable and the claim became unsecured.
This decision is a good example that the language of a mortgage can trigger the limitation period at a time earlier than expected. As a result, the period of enforcement may start to run from the date of the first default even if no demand for payment has been made.
Lenders should be aware that they may lose the ability to enforce a mortgage security if a default carries on for more than two years. Therefore, lenders should both monitor and scrutinize defaults to ensure that remedies are available. If not, they should commence a proceeding within two years of the first default to avoid losing the right to enforce the mortgage security.
If you are a lender and you do not want to lose the right to enforce a mortgage security please contact McQuarrie Hunter LLP at 604.581.7001 or visit our website at mcquarrie.com for assistance.
Fast, Forward: How to Accelerate Your Digital Transformation
“Digital” is no longer a separate division of a company; rather, it’s a shift to a new culture—a way of doing things—that changes the focus of an organization’s entire business model. When it’s done well, it can truly transform a business to make it more efficient, collaborative, and successful. However, many small to medium businesses fail to realize the full benefits of going digital; believing that doing so is reserved for tech companies. This inaction may be driven by uncertainty or intimidation, perhaps due to the pace and seemingly complex nature of technological change. In fact, keeping up with change can appear to be out of reach for a smaller business. But this simply isn’t the case anymore.
Here’s why. As technologies scale, they become more affordable, and it doesn’t take much to lay the foundations for a strong digital framework. Here are five key areas to consider when going digital:
● Digital disruption: The innovations that are transforming business practices today are also streamlining efficiencies at every level. For example, investing in mobile solutions, cloud computing, and data analytics are a great way to start a digital transformation and stay viable in this changing business landscape. They have the potential to change your day-to-day practices for the better—for instance, incorporating predictive analytics into weekly sales meetings to improve sales effectiveness, or using data mining tools to identify duplicate payments to vendors.
● Digital experience: Whether a company manufactures products, sells goods, or provides services, going digital is a powerful means of driving customer engagement. Once mobile solutions, cloud computing and data analytics are in place, there are many ways in which companies can streamline customer-facing front office processes.
● Digital operations: Data analytics and cloud computing allow companies to improve their back office processes as well. After all, companies amass huge amounts of data; and with the right software, all this information can be harnessed to predict everything from customer behaviour and buying habits, to managing risk and fighting fraud, to determining staffing requirements well into the future.
● Digital workforce: When technology is integrated into every facet of a business instead of being limited to an IT department, an inevitable shift in workplace culture will follow. Digitally-sophisticated companies are nimble, fluid, and flexible, working across disciplines in cross-functional teams to find creative solutions. Companies with digital workforces will also be better positioned to attract new talent, as today’s new entrants are seeking—and trained for—digital experiences and systems.
● Digital trust: Taking a company digital entails certain legal considerations as well. There is also the possibility that a company will be targeted by cyber attacks, since data is very valuable; but with the proper protocols, these risks can be managed and mitigated, and shouldn’t deter a company’s digital transformation.
We’ve all seen businesses that are hesitant to embrace and adapt to change—look no further than Blockbuster Video to understand how important it is for companies to continue innovating and investing in their own digital transformations. Thankfully, due to the scalability of new technology, and the relative ease of implementation with a more knowledgeable and savvy workforce, businesses today can more easily adapt the systems and tools they need to embrace all things digital.
Sign up for PwC Canada’s Accelerating Digital content series to learn more.
Securing Government Funding: Not a DIY Project
An array of government funding and incentive programs that could help your business grow faster have recently been approved through the 2018 federal budget.
Although funding opportunities may differ from organization to organization, there is a large number (4,500+ across Canada) of incentive programs available, which provide support to a wide range of businesses. This direct funding could be the ideal basis for an expansion strategy, export market development, adoption or development of new technologies, capital acquisitions, training, hiring as well as the development of environment and sustainability projects.
Examples of eligible R&D projects include the prototyping of technological concepts, field-testing of prototypes, technology demonstrations, various manufacturing process improvements, adoption or adaptation of technologies into new environments as well as environmental footprint reduction.
Many entrepreneurial and technologically driven organizations face significant financial challenges at the critical development stages of their technology, products or services. Although most federal, provincial and private funding programs provide free access to the details of the application process, every situation is different. Therefore, the steps required to develop and complete an application are most likely unique to each organization.
Most organizations do not typically have the appetite nor the bandwidth to research their eligibility for funding. Moreover, to meet application deadlines, organizations need to move quickly and intelligently in order to effectively address individual program eligibility requirements. While the application process may seem straightforward, it comprises of a slew of economic factors as well as innovation and social components. And any last-minute complications can derail an organization’s objectives.
PwC Canada’s innovation and investment incentives team provide comprehensive assistance to clients from early development through to global scaling stages. They work with owners and management to develop funding strategies aligned with business growth objectives and to match as well as integrate relevant funding opportunities into the capitalization plan.
PwC’s advisers have in-depth knowledge of the 4,500+ government funding and incentive programs. They get involved with different types of organizations by proactively identifying suitable grants and funding, analyzing matching opportunities, developing a grant strategy, writing funding applications and delivering compliance reporting support.
By working with PwC, organizations gain access to their deep insights and curator approach when it comes to the funding landscape. This approach removes the complexity and reduces the preparation time from month to days, while increasing the chance of a successful application.
George Stefan, MBA, PMP, PEng. PwC | Partner, SR&ED | R&D Investment Incentives T: +1 604 495 8933 | C: +1 604 726 4909 Email: firstname.lastname@example.org Assistant: Patricia Chang| T: +1 604 495 8939 PricewaterhouseCoopers Associates 13450 102 Avenue, Suite 1400, Surrey BC V3T 5X3 http://www.pwc.com/ca
US Tax Reform: No Response is Not an Option for Canada
Nearly a year after sweeping US tax reform was enacted, we are finally beginning to understand the true impact these changes could have on the Canadian economy.
A key purpose of US tax reform was to stimulate investment in the US and incentivize US multinationals to repatriate cash held abroad. A few of the incentives intended to achieve these objectives include:
– Immediate full expensing for investment in equipment through 2022 and partial expensing from 2023 through 2026;
– An exemption from US tax for certain foreign business earnings; and
– Preferential taxation of certain export income.
Last month the Business Council of Canada released a report prepared by PwC that provided a comprehensive review of how significant the impact on the Canadian economy could be. If there are no changes to the Canadian tax system in response to US tax reform, PwC estimates that Canada could risk losing 635,000 jobs and $85-billion in GDP, representing nearly 5% of the Canadian economy. To put this into perspective, the Conference Board of Canada predicted a 0.5% decline in Canada’s GDP and the loss of about 85,000 jobs, if NAFTA was terminated.
While Ontario and Alberta were noted as provinces that will potentially be most impacted by US tax reform, significant job loss and GDP decline could be felt in BC as well, with $5.6 billion or 7.7% of BC’s total economy at risk. BC industries likely to be most affected by these changes include forestry, mining and manufacturing as well as a small negative impact in the high-tech industry.
In order to counteract the impact of US tax reform on Canada’s economy, the study suggested a number of potential Canadian reforms including:
– Reducing federal and provincial corporate income taxes by 1% per year until the combined statutory rate is reduced to 20%;
– Introducing 100% bonus depreciation for seven years on equipment, structures, and acquired intangibles;
– Increasing the benefits available under the scientific research and experimental development tax credit; and
– Increasing the personal income tax brackets to more closely resemble the US personal income tax brackets.
Funding options for these tax reductions could include an expansion of the corporate and/or personal income tax base, an increase in the GST rate and/or a reduction in government spending.
Since release of the report, the Ministry of Finance has shown interest in its findings and it is hoped this review will lead to Canadian tax changes in the coming months.
Michael Shields, Tax Partner, Fraser Valley Leader – www.pwc.com
Amendments to the Property Transfer Tax: What You Need to Know
On February 16, 2016, the British Columbia government announced amendments to the existing property transfer tax (“PTT”) regime. If you are thinking of buying, selling, or transferring property in British Columbia, you should consider the impact of the PTT amendments on your transaction.
What is the PTT?
The PTT is a provincial tax that applies every time legal title is transferred on property in British Columbia. The amount of PTT that is payable is based on the fair market value of the property.
A new exemption
A new exemption is available to buyers of newly constructed homes, including condominiums, with a fair market value of up to $750,000. To qualify for this exemption, the buyers must be individuals who are Canadian citizens; this exemption does not apply to corporations. Further, the newly constructed home must be less than 1.24 acres, and must be used as a principal residence. This exemption may provide up to $13,000 in tax relief to qualifying buyers. Partial exemptions are also available in some circumstances.
Increased PTT on properties exceeding $2 million dollars
The rate of the PTT has increased from 2% to 3% on the fair market value of residential and commercial properties exceeding $2,000,000 dollars.
New disclosure obligations
Finally, the British Columbia government has proposed amendments to the Property Transfer Tax Act, which will allow it to collect the citizenship information of property owners. If adopted, the British Columbia government will require first-time home buyers and buyers of newly constructed homes to disclose their citizenship status and country of residence. These disclosure obligations will not apply to commercial properties.
Before making the decision to buy, sell, or transfer property in British Columbia, it is important to consider the amendments to the PTT. An experienced lawyer can ensure that your transaction goes smoothly, and without any surprise costs. If you have questions about the amendments to the PTT, please call McQuarrie Hunter LLP at 604.581.7001 or visit our website at mcquarrie.com.
Alternatives to Traditional Non-Competition Clauses
Restrictive covenants, or non-compete clauses, are useful tools available to employers to protect themselves from a departing employee. When an employer attempts to enforce a non-competition clause, the primary issue is whether the clause is “reasonable.” Courts generally presume non-compete clauses are void as being in restraint of
trade and contrary to public policy. However, this presumption can be rebutted by the party seeking to enforce the covenant by showing that it was both necessary and reasonable in the circumstances. The Supreme Court of Canada established a three-fold test for determining the enforceability of restrictive covenants:
- Does the employer have a legitimate possessory right that it is entitled to protect?
- Is the restraint reasonable between the parties in terms of temporal length, geographical area, nature of the activities prohibited, and overall fairness?
- Is the restraint reasonable with reference to the public interest? (the more essential the service, the more likely the covenant will be regarded as adverse to public policy)
Two recent alternatives to traditional non-compete clauses are as follows:
- Payment obligations
In the 2014 British Columbia Court of Appeal case of Rhebergen v Creston Veterinary Clinic Ltd., an employer listed three differing levels of payment that had to be made to the employer by the former employee if a competing practice was set up within one, two, or three years of the employee leaving the company for a competing company. The payment grades were based on the investment the clinic calculated for mentoring, training, and equipment. The unique clause was deemed valid, but the employer took time at the outset to assess the actual potential financial impact of competition. By establishing a reasonable evidentiary basis for the calculation of damages that would be incurred in the event the employee competed with the employer, an employer is more likely to establish that the payment amounts are not penal in nature (which is prohibited), but rather a genuine effort to estimate the potential damages that would be sustained from competition.
- Competitor specific non-competition obligations
Another option used in the US, but less frequently in Canada, is specifically naming competitor companies in the restrictive covenant, in addition to or in substitution for the typical geographic scope clause. A competitor-based restriction avoids uncertainty and has plenty of appeal as it allows an employer to clearly define whom it perceives as a competitor. It is also beneficial in that it is easier to argue the reasonableness of whom is a competitor in that the analysis can focus on the nature of the product or service sold as opposed to exactly where the employer conducts business and where the employees work on behalf of the employer.
A Useful Tool for Business Disputes – BC’s New Civil Resolution Tribunal
What is it?
Later in 2016, British Columbia will introduce a Civil Resolution Tribunal (CRT) to resolve small claims up to $25,000 as well as strata (condominium) disputes. The
purpose of Canada’s first online tribunal is to increase access to justice by allowing parties to quickly and affordably solve disputes while giving them an additional choice about how, when, and where they resolve their disputes. The CRT will be easier to navigate than the courts since it does not rely on courtrooms, judges, registries, or rigid timelines. Parties will be able to use the CRT 24 hours a day, seven days a week from any device that has an internet connection. This will help unclog courthouses around the province and allow parties to not have to take a day off work to attend court.
How does it work?
Initially, a CRT user will use the Solution Explorer portion of the program to answer simple questions about the issue at hand. The user will be guided to useful information, problem diagnosis, and self-help tools to help take steps towards resolution. Subsequently, the initiating party is able to invite the other party to negotiate using the online negotiation tool.
If the two parties are not able to resolve their dispute on their own, the CRT will provide an impartial facilitator to encourage settlement. If negotiations still fail and a ruling is required, CRT matters will be heard by lawyers appointed as adjudicators. Parties are able to file final decisions and orders of the tribunal with either the B.C. Provincial Court or B.C. Supreme Court. Once filed, the adjudicated decision can be enforced the same way as a court order.
For small business owners, the CRT will be a way to minimize costs while resolving problems. Whether the disagreement involves a contract dispute, employment matter, or any number of other issues that regularly arise throughout the course of business, the CRT will be available as long as the claim is under $25,000.
The creators of the CRT recognize that self-represented litigants are a pivotal piece of our justice system and have attempted to design the CRT in a user-friendly way. Nevertheless, parties are welcome to use a lawyer to assist with the negotiation, case-management, and most parts of the adjudication phase of the CRT.
Can you be held liable if an employee breaches privacy legislation?
The British Columbia Court of Appeal recently ruled on a subject that is of interest to employers across the province. The issue arose when an ICBC employee allegedly
accessed the personal information of around sixty-five (65) ICBC customers. As a result of this, a claim was made for violation of privacy against the employee who allegedly accessed the information and against the employer who was said to be vicariously liable for the actions of its employee (note: vicarious liability is when one party is held responsible for the conduct of another, even though the party held liable for the misconduct has not committed any wrong of its own). The employer attempted to have the claim struck before the issue reached trial.
Vicarious Liability for Breach of Privacy
Pursuant to section 1(1) of the BC Privacy Act, “it is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.” The language in this clause does not limit a plaintiff to recovery of damages from the person identified in s. 1(1). Nevertheless, ICBC argued that they should not be vicariously liable for the wilful wrongdoing of an employee, arguing that section 1 limits liability to the wrongdoer. The Court disagreed and decided that it is not plain and obvious the claim for vicarious liability would fail, and thus it remains an open ended question whether vicarious liability can be applied to the section 1 definition. To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not incompatible with vicarious liability. Although vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of. The Court did not determine that ICBC is vicariously liable, but solely that they could be vicariously liable and that the claim should be permitted to progress to trial.
This decision notifies employers that they can be held vicariously liable for intentional and deliberate wrongdoings of their employees. To protect themselves against a claim of this nature, employers should assess the risks within their organization and ensure that employees do not perform duties outside their job descriptions. Employers should also review their training, policies, and processes for dealing with issues that arise. If you have an employment law issue you’d like advice on, call McQuarrie Hunter LLP at 604.581.7001 to speak with our employment lawyers or visit our website at mcquarrie.com.
Parental Leave and Benefits: What to Expect When an Employee is an Expecting Parent?
The Employment Standards Act (the “Act”) allows mothers and fathers to take an unpaid parental leave to care for their newborn or newly-adopted children.
What is parental leave?
An employer must provide 37 weeks of unpaid leave to allow an employee to care for a newborn or newly-adopted child. An employer cannot layoff, dismiss, discipline or suspend an employee because he or she has applied for or taken parental leave.
The Act also makes parental leave available to all eligible employees, regardless of the length of their employment. In other words, an employee does not have to be employed by his or her current employer for any specified length of time to qualify for parental leave.
The employee must give written notice to the employer four (4) weeks before the expected parental leave. Further, the employee must take the leave within fifty-two (52) weeks of the child’s birth or adoption.
What happens after parental leave?
At the end of a parental leave, the employer must reinstate the employee to the same position the employee held prior to taking the leave. This requires the employer to provide the employee with the same wages, entitlements, and accrued benefits.
If the above option is unavailable, the employer must provide the employee with alternative work in keeping with the established seniority system or practice in place when the employee began the parental leave, with no loss of seniority or other accrued benefits. The parental leave must also be included in any vacation entitlement in a twelve (12) month period.
What are employment insurance benefits?
The Employment Insurance Act allows an employee to receive up to 35 weeks of employment insurance benefits during his or her parental leave. This applies to both mothers and fathers on parental leave. However, the employee (and not the employer) is responsible for applying for employment insurance benefits.
Both parents can apply for employment insurance benefits, but they have to share those benefits. In total, there are 35 weeks of employment insurance benefits available to eligible parents of newborn or newly-adopted children. For example, if one parent decides to take only 10 weeks of parental leave before returning to work, the other parent can use the remaining 25 weeks of employment insurance benefits.
If you have an employee that is an expecting parent, failing to comply with the relevant legislation can cause a host of issues. For assistance please call McQuarrie Hunter LLP at 604.581.7001 or visit our website at mcquarrie.com.
Buying a Business: Swim Instead of Sink
Owning your own business sounds like a dream job to many. If you have made the decision to be your own boss, you have two main choices – start from scratch or buy a “going concern” from an existing owner or franchisor.
The benefits of starting a business from scratch are the freedom to structure the business to fit your particular needs, and the fact that it may be less expensive than purchasing an established operation. Alternately, you may wish to consider buying a “turn key” operation, such as an established business or a franchise. Either way, you will need to carefully consider a number of factors. Your lawyer and your accountant are indispensible as advisors in this circumstance.
Purchasing an established business offers the benefits of an existing structure without having to create everything from the ground up. Before you sign a purchase agreement, you will want to carefully review the seller’s financial statements and receive accounting advice. You will also need to consider how you will finance the purchase price, and how the transaction will be structured.
Generally, there are two main ways to purchase a business – buying the “assets” of the business or buying “shares” of a company. Often, a seller wishes to sell shares (for tax reasons). Conversely, it is often more advantageous (for tax and liability reasons) for a purchaser to buy the assets of a business. Your lawyer will be able to explain the benefits and risks of each option for you in greater detail. You should talk to your lawyer and your accountant before you sign any paperwork, or you may find out that you have already agreed to something which is not ideal to your interests.
It is always necessary to do your “due diligence” when you are considering a business venture, and particularly if you are looking to buy a going-concern business. Your lawyer can help to ensure that you don’t get more (or less) than you bargained for. For example, whether you buy assets or shares, a purchaser can be liable for certain statutory remittance debts of the seller, such as WCB remittances, payroll remittances, and taxes.
While every business is unique and offers its own benefits and rewards, there are potential pitfalls that you should be aware of. Seeking legal and accounting advice early in the process of purchasing a business means that any issues are likely to be identified at an early stage. Mitigating risks from the outset makes good business sense!
At McQuarrie Hunter LLP, our business lawyers regularly assist clients who are entering the world of business ownership. Whether you are looking to lease premises, incorporate your own company, purchase a business, or enter into a franchise agreement, we are here to help. Our lawyers work closely with accountants, brokers, and bankers to ensure that you receive the necessary advice from the proper professional – when entering the business world, these people are your friends.
Talk to your friends early in the process to maximize your chances of success!
Upholding your duty: An employer’s duty to accommodate
Discrimination in the employment context
Employers in British Columbia have a duty to accommodate employees in accordance with BC’s Human Rights Code (“the Code”). According to the Code, “A person must
not refuse to employ or refuse to continue to employ a person, or discriminate against a person regarding employment or any term or condition of employment” due to any of the discriminatory grounds listed such as race, physical or mental disability, or religion. With respect to injuries or disabilities, this means that an employer’s duty to accommodate obligates an employer to work together with an employee in order to find a practical solution to accommodate the complainant employee’s disability.
How far does accommodation go?
In a seminal decision on the duty to accommodate, Ontario (Human Rights Commission) v Simpson-Sears Ltd.  2 SCR 536, the Supreme Court of Canada held that an employer has a duty to “take reasonable steps to accommodate the complainant, short of undue hardship.” This means that employers must accommodate to the extent that accommodation does not unduly interfere with the operation of, or create expenses to the employer’s business. Remember, however, that “undue” hardship does not include just any hardship. The threshold of what constitutes “undue” will be determined on a case-by-case basis, and often “hardship” will not rise to the level of “undue.” A reasonable attempt to accommodate in good faith, therefore, represents a crucial element of an employer’s duty.
Clarifying “Undue Hardship”
In British Columbia (Public Service Employee Relations Commission) v BCGEU,  3 SCR 3, the Supreme Court provided further clarification on the matter. If an employer can show that the requirement complained of is a Bona Fide Occupational Requirement (BFOR), the claim of discrimination will be nullified. It is a high standard to meet, however; the purpose must be rationally connected to job performance, the standard must have been adopted in good faith, and the discriminatory standard must be reasonably necessary for the accomplishment of that legitimate work-related purpose. Relevant factors for reasonable necessity include: “Financial cost of the possible method of accommodation, the relative interchangeability of the workforce and facilities, and the prospect of substantial interference with the rights of other employees.”
Employers, therefore, have a duty to accommodate their employees up to the point of undue hardship. What constitutes “undue hardship” will continue to be addressed by the courts as each case turns on its specific facts. If you are faced with a situation as an employer where a duty to accommodate arises, please contact McQuarrie Hunter’s Employment Law Group for assistance navigating this complex duty.
Whose Hard Work is it Anyway?
But it’s my hard work! Work product and employee intellectual property rights
Who owns the rights to an employee’s on-the-job work product?
Work-product disputes generally arise between employers and employees or businesses and independent contractors, and may involve issues of copyright, trademark or
When, if ever, does an employee own the rights to their “hard work”?
What is work product?
Anything created by an employee in the course and scope of their employment can be classed as work product. In written employment or independent contractor agreements there may be a “work product clause” stating “All employment related work, created by the employee in the course of employment, is the property of the company.” Such clauses are often more extensive in scientific, research or creative fields. For instance, a graphic design firm may include specific provisions to ensure that any work product of the employee is clearly the property of the employer for trademark or copyright purposes.
Work product clauses?
Employment contracts should be drafted with clear work product provisions in order to ensure that all parties have a clear understanding, of their respective rights and provide a mechanism for enforcing those rights through arbitration or court action. Some examples of such clauses include holdover provisions, waiver provisions, and disclosure provisions.
Holdover: Allows the company to retain ownership over the product or invention even after the employee has left the company.
Waiver: Requires employee to disclose all inventions or products made prior to joining the company which bars any defense by an ex-employee regarding work product made “before” their employment began.
Disclosure: Requires the employee to disclose any and all inventions or products created for the company while “on the job”. This allows employers to track progress and keep records of whom and when company property is created. Failure to disclose, in contravention of a “disclosure clause”, would raise grounds for a claim of breach of contract and/or a claim for violation of property rights (by the employer).
Can I ever “own” my work?
In the absence of a written contract, or where an existing contract is unclear, silent or inapplicable, an employer may be faced with a work product argument. Accordingly, written contracts with carefully drafted work product provisions are essential.
Employers should seeking legal counsel on all employment and hiring matters, particularly those which may involve the production of work product. Ensuring that proper contracts are in place will unnecessary disputes relating to ownership of “work product”. McQuarrie Hunter LLP has extensive resources to assist you in drafting comprehensive employment contracts – call on McQuarrie today!
Valuing Business at Start of Relationship
Why you should obtain the value of your business at the beginning of a relationship
In the unfortunate event of a separation or divorce, the proper valuation of family property is crucial. Under older legislation, the division of property was based largely on
the value of assets at the time of separation. Under the current Family Law Act (“FLA”), however, that has changed. The new FLA distinguishes between family property and excluded property. Any growth in value of family property from the time the relationship was entered into must be shared between spouses.
Family property vs. Excluded property
The FLA defines family property as being all property (including property owned by at least one spouse or a beneficial interest of at least one spouse in property) on the date of spousal separation. A share or an interest in a corporation, as well as an interest in a partnership, association, organization, business or venture are all considered to fall under the category of family property and are therefore subject to division under the FLA. Excluded property, however, is not subject to division. Any property acquired by a spouse before the relationship began is excluded from family property.
What this means for you
While the growth in value of a business or property during a relationship is considered family property, the value of the business or property before that date is excluded property. Responsibility for demonstrating that the property in question is excluded property, however, falls on the spouse trying to exclude it. This means that being proactive is essential. Before entering into a common law relationship or getting married, business and property owners should complete an up-to-date valuation of their assets. Determining the amount of growth since the beginning of the relationship requires a starting point to work from.
Protect yourself properly!
It is prudent to undertake a complete valuation of the business or property and debt at the time immediately before you enter into a relationship. This will help protect your business or assets in the event of a separation. Valuation of family property and debt is based upon fair market value and determined as of the date that an agreement to divide the property is made, or in the event the matter proceeds to court, the date of the court hearing. Clarity of the value of excluded property is therefore essential, and the best valuations include complete historical statements for all investments and personal property, as well as appraisals for real estate.
If you are taking the next step in your relationship and would like to protect your business, please contact the Family Law Practice Group at McQuarrie Hunter LLP 604.581.7001 to discuss how best to safeguard your position with regard to your company or property.
Why Do I Need A Shareholders’ Agreement?
Without an agreement, the business relationship between the shareholders of a corporation will be governed solely by the Business Corporations Act and the corporation’s articles. The procedures and rules set out in those sources are general in nature and are rarely what the shareholders would select if provided the choice.
Shareholders’ Agreements not only allow the shareholders to customize the business relationship according to their needs, they can also provide a personalized framework to mitigate issues that may arise when multiple parties are in business together. Listed below are some of the common situations in which a shareholders’ agreement is invaluable.
What happens in the event of irreconcilable differences between shareholders?
Without a shareholders’ agreement the most viable way to end a contentious corporate relationship are costly and unpredictable legal proceedings. A “shotgun clause” is an exit strategy that provides a mechanism for valuing shares and allowing shareholders to buy each other out. When triggering it a shareholder may give notice to the other shareholders requiring them to either sell their shares at a certain price, or alternatively purchase the instigator’s shares at that same price and on those same terms. This simple and effective provision operates on the premise, “I’ll cut the pie and you choose a half”
What happens in the event of a shareholder’s death?
Most people get into business together because all parties have something important to provide to the corporation such as time, expertise, or a book of business. If a shareholder’s shares pass to a beneficiary under a will the surviving shareholders may find themselves in business with a party who cannot contribute to the corporation’s success. Shareholders agreements can require the corporation to take out insurance on each shareholder’s life, and in the event of the death of a shareholder the proceeds would be used to buy out the deceased’s estate. This allows the deceased shareholder’s family to receive compensation and the surviving shareholders to determine the best way to move forward in their business.
How are the minority shareholders’ rights protected?
Under the BCA, special resolutions may be passed by a majority depending on the company’s articles. This makes it possible for minority shareholders to be outvoted on almost every major corporate decision. Shareholders’ agreements can provide minority interests with protection such as higher levels of shareholder approval, guidelines for the management of the corporation, and the right for a minority shareholder to appoint a director to the board. These provisions can ensure that all parties have a say in the business.
Avoiding Estate Disputes: Top Tips
- Plan Ahead
We often put off estate planning until circumstances create a sense of urgency. A plan put in place when we are injured, ill, or in the early stages of cognitive decline as we age, is far more susceptible to attack than one put in place while all of our faculties are undeniably intact.
- Select the Right Executor
Recognize that the role of an Executor requires a variety of skills and experiences. Your representative(s) will need to identify, manage, liquidate, satisfy and distribute your assets and liabilities, work with accountants, realtors, lawyers, the Court Registry, financial planners, insurance companies, the Canada Revenue Agency and others, all while acting as a moderator in family discussions during a time of grief. Consider conflicting interests, conflicting personalities and the skills your trusted loved ones possess.
- Identify Gifts Given During Your Lifetime
If you have gifted valuable assets during your lifetime, or have financially supported a loved one, these advances should be clearly identified to avoid later confusion and disagreement. Is it your intention these advances be paid back, or should they be disregarded and have no effect upon the distributions in your will? Are there any tax consequences to your estate in forgiving specific debts at the time of your death?
- Explain and Document Apparent Inequities
Some beneficiaries have legitimate needs for additional support and some may have had a greater positive impact on your quality of life. Some loved ones may choose a lifestyle you simply cannot condone and it prevents you from directing assets to them. Potential variation of wills claims do not make an inequitable distribution impossible, but a careful approach to supporting documentation is a must. Estate planning lawyers use statutory declarations, letters of wishes, and inter-vivos asset transfers to protect inequitable distributions.
- Distinguish Between Power of Attorney and Joint Ownership
Often, clients will appoint one of their children to act as POA when they can no longer conveniently act for themselves. Surprisingly, many of these same clients will ‘bolster’ this power by adding the POA child as a joint account holder at banks, investment companies and even on title to property. There is no need to bolster the power a POA holds. There can be significant negative tax consequences to your child when your assets are placed in his/her name. Further, your other children will then be left to the task of determining whether they believe the joint accounts were gifted to the POA child or whether the jointure was a misguided attempt at furthering your estate planning structure. Often, litigation ensues.
- Obtain Qualified Advice
In crafting your estate plan, rely on an unbiased estate planning lawyer. A family or personal injury lawyer is not likely to agree to draft your estate planning documents. Your eldest child’s lawyer may appear to have been biased if there is any inequality in your proposed distribution plan amongst your children. Remember that Notaries are not permitted to draft trusts as this is a complex field of law. Note that self-counsel documents and on-line services all warn against the ambiguities, errors and unintended omissions encountered in documents created by individuals on their own behalf.
- If All Else Fails
If your planned distributions will inevitably lead to a disputed estate despite following each of the tips above, consider the use of an inter-vivos trust. A formal trust that is established during your lifetime (unlike a testamentary trust created in your will) does not cease to exist upon your death. Transferring assets into a trust has a similar effect to having sold those assets – they are no longer yours at the time of your death and they do not fall to your estate, where their distribution is subject to direct challenge. While trusts may still be subject to dispute, the claims that can be advanced against asset transfers to trusts are more limited compared than those that can be advanced against estates.
The Clock Is Ticking – Your Rights & The Limitation Act
If you think you might have a claim against someone, you need to know about significant changes to limitation periods that might prevent you from bringing that claim.
On June 1, 2015, the changes that came into effect with the Limitations Act, SBC 2012, c 13 (the “Current Act”) will begin to absolutely bar court claims. When the Current
Act came into force it changed the limitation period for many claims to 2 years.
This means that if your claim arose on or after June 1, 2013 you will lose your right to sue 24 months after the claim was discovered.
For example, if you are owed a debt that became due on June 1, 2013 you will absolutely lose the right to collect that debt on June 2, 2015. If someone breached a contract with you on June 15, 2013, and you discovered it that day, you cannot sue for that breach on or after June 16, 2015.
JUNE 1, 2015 AND THE EXPIRY OF LIMITATION PERIODS
Because the Current Act came into force on June 1, 2013, a two year limitation period applies to any claims that arose after June 1, 2013. Therefore, on June 1, 2015 the Current Act will begin to bar claims that arose after June 1, 2013. If you have a claim that arose after June 1, 2013 you will lose your right to bring that claim to court 24 months from the date the claim was discovered. This includes claims for outstanding debts and breaches of contract.
The “Previous Act”, the Limitation Act, RSBC 1996, c 266, still applies to claims that existed before June 1, 2013 and which have not been brought to court.