Lancaster, Brooks & Welch LLP

St. Catharines Office
80 King Street Suite 800
Tel. 905.641.1551
Welland Office
247 East Main Street
Tel: 905.735.5684

Corporate Bulletins


PROTECT YOUR PRINCIPAL RESIDENCE EXEMPTION!

PROTECT YOUR PRINCIPAL RESIDENCE EXEMPTION! – CHANGES TO REPORTING REQUIREMENTS FOR THE SALE OF YOUR HOME

By Dave ThomasDave Formal white jpg

 

Generally speaking, Canadians do not pay any Capital Gains Tax on the growth in value of their homes.  The Income Tax Act provides an exemption called the “Principal Residence Exemption”.  In most cases, if you own your home and sell it, you get the full benefit of the exemption and pay no tax, even if the value of your home has increased significantly.  The Income Tax Act requires you to keep track of your original costs and the sale price.  However, until recently, you did not have to report the sale on your income tax return. You just got the benefit of the exemption.

Under new rules, which will affect sales of homes occurring in 2016 and afterwards, people who sell their homes will need to report the sale on their tax returns for that year.  It will be necessary to fill out Schedule 3.  You will have to report the address of the home, the proceeds of sale, and the date that the home was acquired.  If you qualify, there will still be no tax.  However, if you do not report the sale and the gain, you may be reassessed later and then you won’t be able to claim the exemption and you’ll have to pay an unnecessary tax.  There can also be penalties for failure to report the gain.  Late filed declarations may be accepted, but will involve penalties.

This new rule also applies to estates. If a person dies owning a home, there is a “deemed disposition” of the home as of the date of death, as if the home had been sold for its fair market value as of that date.   The Estate must report the capital gain in the deceased’s final tax return, and claim the exemption.

It is therefore important to keep in your records the details of the purchase of your home, and also its sale.  Most of this will be found in your lawyer’s reporting letter.  Make sure that your tax preparer is advised of the sale.

In most cases, where you have used the home as your principal residence for the whole time that you owned the property, there will be no difficulty getting a full exemption.  In some cases, where you or your spouse have owned other properties which you occupy, at the same time, or where your property has been rented out for part of the time that you owned it, you may not get the full exemption.  In these cases, it is important to have your documentation available so that the gain can be calculated and you can calculate how much of the exemption you get.  In some cases, where you own more than one home, you may need to get the advice of your accountant or real estate agent to help you determine which home should be designated as your principal residence for a given year.  Whatever you do, make sure you report the capital gain and claim the exemption.  The alternative can be very expensive.

 

Dave Thomas is a senior partner at Lancaster, Brooks & Welch LLP and he can be reached for legal advice on residential and commercial real estate matters at 905-641-1551. Lancaster, Brooks & Welch LLP are Niagara Lawyers for 135 years.

 

 

Read more...


Bill 132: Ontario’s Sexual Violence and Harassment Action Plan New Employer Responsibilities Effective September 8, 2016

LeanneStandryk-Casual-onwhiteBy Leanne Standryk

In March 2015, Premier Kathleen Wynne released the report “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.  The Plan was aimed at raising awareness and addressing sexual harassment and violence in the workplace, schools and the community.  The Plan recommended the introduction of a new definition of sexual harassment and express requirements for Employers to investigate and address sexual harassment and violence in the workplace with the further obligation for Employers to take every reasonable effort to protect workers from harassment.

Several of the recommendations outlined in the Plan were introduced on March 8, 2016, when the Ontario Government passed Bill 132, Sexual Violence and Harassment Action Plan Act (the “Act”) aimed at preventing sexual violence, sexual harassment and domestic violence. The Act amends several pieces of existing legislation including the Occupational Health and Safety Act (the OHSA). The focus of this bulletin shall be on how the Act will impact the OHSA when Bill 132 takes effect on September 8, 2016.

The highlights of Bill 132’s amendments to the OHSA are as follows:

  1. Definitions of Workplace Harassment and Workplace Sexual Harassment

Bill 132 adds to OHSA’s existing definition of ‘workplace harassment’ so that it expressly includes workplace sexual harassment defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

Finally, Bill 132 also sets out that reasonable actions taken by Employers or supervisors related to the management and direction of employees or the workplace is not workplace harassment.

  1. Changes and Additions to Existing Employer Duties

Employers will be required to develop and maintain a program to implement the harassment policy in consultation with the workplace’s health and safety committee or representative, if any.

The policy and program must include procedures for workers to report incidents of workplace harassment to persons other than the employer or the supervisor, if the employer or supervisor is the alleged harasser.  This new obligation may impose challenges to smaller workplaces where there is no human resource department or where members of the management team are relatively few.

The program and the policy must be reviewed as often as necessary but at least annually to ensure that it adequately implements the workplace harassment policy.

In addition to the new reporting measures, the Employer policy and program must also:

  • Specify how workplace harassment complaints and incidents will be investigated and dealt with, including the fact that information obtained about complaints and incidents will not be disclosed unless required for the investigation or by law;
  • Indicate that the victim and the alleged perpetrator are informed in writing of the results of the investigation and the corrective actions to be taken as a result of it, if any. At a bare minimum, the written program must provide for this written communication.

In addition to the foregoing, Bill 132 requires Employers to protect workers from harassment by ensuring that an investigation is conducted into incidents and complaints of workplace harassment that is “appropriate in the circumstances”.  This provision certainly opens the possibility for the Ministry of Labour to consider whether or not the employer’s investigatory process was appropriate thereby lending to the potential of further litigation surrounding the “appropriateness of investigations”.

  1. New Powers for The Ministry of Labour

Ministry of Labour inspectors are also provided with the power to order that the investigation be redone or that an impartial third party conduct the investigation.   The third party must have the necessary knowledge or qualifications, as determined by the inspector, to conduct a workplace harassment investigation at the employer’s expense.

Employers may have the right to appeal any such order which again, would lead to more litigation surrounding investigations. It is specified that reports from the impartial person also will not constitute a report respecting occupational health and safety for the purposes of 25(2) of the OHSA.

Bill 132 is effective September 8, 2016 and, accordingly, Employers are advised to review their policies and seek the necessary advice to ensure future compliance.

Leanne Standryk is a senior partner at Lancaster, Brooks & Welch and she may be contacted for advice on any Labour and Employment matter at 905-641-1551.

 

 

Read more...


The Importance of Shareholders’ Agreements for Private Corporations

Jillian-Casual small pic for website-onwhiteWhen incorporating a corporation with other individuals or purchasing shares in an existing corporation as a way of partnering in business with others, taking the time to negotiate a Shareholders’ Agreement is always strongly advised. A Shareholders’ Agreement is a highly valuable document that not only sets out the current organizational structure of a corporation but also ensures that the shareholders of a corporation are in agreement as to how various issues will be dealt with should they arise.

Among the many issues that may be addressed in these types of agreements, some of the main ones are as follows:

  1. Corporate Affairs

Generally, one of the first things a Shareholders’ Agreement will address will be the operation and control of the corporation – who will the Board of Directors consist of, who will hold the officer positions of the corporation and what duties/ responsibilities will those individuals have. A Shareholders’ Agreement will also outline those decisions that will require unanimous approval of the Board of Directors and of the shareholders of the corporation in order to ensure that no one individual director, officer or shareholder will have the power to make major corporate decisions without the knowledge and consent of the other directors or shareholders. Unanimous consent is often required for the following:

  • Any action that may result in a material change in the nature of the business;
  • The declaring of dividends;
  • The issuing or selling of any new shares in the capital stock of the corporation;
  • The increasing or decreasing of the capital of the corporation or altering in any way its capital structure;
  • The selling, transferring, assigning or charging of any shares in the capital of the corporation or redeeming or purchasing for cancellation any such shares;
  • The selling or disposing of the whole or a substantial part of the business or the assets of the corporation; or
  • The instituting of proceedings for the winding up, reorganization, amalgamation or dissolution of the corporation.
  1. Death of a Shareholder

If one of the shareholders should die, a Shareholders’ Agreement will often stipulate that the corporation shall purchase and the executor of the deceased shareholder’s estate shall sell all of the deceased shareholder’s shares in the corporation as at the date of his/her death. Once the corporation has purchased the deceased shareholder’s shares, these shares are generally then cancelled by the corporation so that the shareholding percentages of the remaining shareholders remains unchanged. Often, this type of transaction will be scheduled to take place within a few months of the deceased shareholders’ death in order to minimize any potential disruption to the carrying on of business by the corporation. Provision is usually made that between the date of death of a shareholder and the closing of the purchase and sale transaction that the parties are only to cause or permit to be done things within the ordinary course of the business of the corporation. Thus, the executor of the deceased shareholder’s estate would be prevented from doing anything out of the ordinary course of business during the period of time it would take to complete the purchase and sale transaction. Generally, it is also advised that a corporation take out life insurance policies on all of its shareholders in order to ensure that upon the death of any shareholder, the proceeds of the deceased shareholder’s life insurance policy will be available to the corporation to ensure that at least part, if not all, of the necessary funds will be available to the corporation for the purchase of the shares.

  1. Buy/Sell Provision in the Event the Shareholder Relationship Breaks Down

A Shareholders’ Agreement may provide for the occurrence of a breakdown in the relationship of the shareholders of a corporation and the process they can go through in order to discontinue their business relationship. If the buy/sell provision of a Shareholders’ Agreement is triggered by one of the shareholders, this shareholder must be equally prepared to either purchase all of the shares of the corporation held by the other shareholders or to sell all of their shares in the corporation to the other shareholders. When this provision is triggered the shareholder triggering the provision (the “Offeror” in this instance) will deliver notice to all the other shareholders of the corporation. The Buy/Sell notice will outline the fair market value of the shares and contain both an offer to purchase all of the shares of the corporation owned by the other shareholders on specific terms and conditions as well as an offer to sell all of the Offeror’s shares to the other shareholders proportionately on the same terms and conditions. Upon receipt of a buy/sell notice, the decision making power shifts into the hands of the other shareholders, who will have a limited amount of time to decide which option they would like to choose. Hypothetically, if there are two remaining shareholders in the corporation then any one or both of them may decide to purchase the Offeror’s shares. If one of the remaining shareholder’s chooses to purchase the Offeror’s shares while the other remaining shareholder chooses to sell his/her shares, then the remaining shareholder who chose to purchase the Offeror’s shares will also be required to purchase the other remaining shareholder’s shares, thus becoming the sole shareholder of the corporation in the process. If all the remaining shareholders jointly fail to choose either option within the specified time period, they will all be deemed to have accepted the first offer, being to sell all of their shares to the Offeror so that he/she would become the sole shareholder of the corporation.

  1. Incapacity of a Shareholder and Events of Default

A Shareholders’ Agreement also generally provides for a number of situations, the occurrence of any of which would require a shareholder to sell his/her shares to the other shareholders of the corporation. If any of the events provided for are triggered, the shareholder triggering the event will be deemed to have offered his/her shares to the other shareholders of the corporation in their proportionate share on the day before the triggering event took place so as to prevent an outside individual or corporation from gaining access or control of the shares. Triggering events often include the situation where:

  • due to the mental incapacity/incompetence of a shareholder, the Public Guardian and Trustee would take control of the shareholder’s estate and begin making decisions on the incapacitated shareholder’s behalf;
  • a shareholder becomes injured, either mentally or physically, and as a result is unable to carry out his/her normal functions/duties as a director of the corporation;
  • a shareholder becomes subject to a petition in bankruptcy or insolvency which is not rectified within a specified period of time or the shareholder enters into an arrangement or assignment of the benefit of his/her shares to creditors in order to settle a debt owed;
  • a shareholder involuntarily transfers his/her shares in the corporation to a creditor in total or partial satisfaction of any debt, obligation or other liability. This provision often includes the situation where a judgment by a court is made against a shareholder which may indirectly transfer the shareholder’s rights to his/her shares in the corporation to a creditor; or
  • a shareholder going through a divorce becomes subject to a direct or indirect court order that would affect his/her rights to his/her shares in the corporation.

While shareholders can at times be reluctant to spend the time and incur the expense of negotiating a Shareholders’ Agreement, this document enables the shareholders of a corporation to make adequate provision at the outset of their business relationship for the potential occurrence of various situations to ensure that the business of the corporation will continue to run seamlessly when faced with certain internal corporate challenges.

As a part of the Lancaster, Brooks & Welch Corporate and Commercial team, Jillian Ali assists clients in all aspects of their business legal needs. She may be contacted at 905-641-1551.

 

Read more...


Accessibility for Ontarians with Disabilities Act, 2005: Changes Coming Summer 2016

LeanneStandryk-Sports-onwhiteBy: Leanne Standryk and Emily Keene

 

This summer, Ontario organizations will see changes coming into effect with respect to our province’s laws on accessibility for people with disabilities.  In 2005, the Ontario government passed the Accessibility for Ontarians with Disabilities Act (AODA), which called for organizations, including employers and trade unions, to work towards providing accessible services and environments in five (5) key areas of our day-to-day life.  The goal of this legislation is ultimately to remove barriers to accessibility by the year 2025.

The AODA and its associated regulations requires affected organizations to make significant efforts to train its staff and prepare policies, to deliver goods, employment and services in new ways to allow people of all ability levels to access them.  Since the legislation was passed, we have seen a staggered, phased in approach to compliance, allowing organizations time within which to meet the standards imposed.

Several minor changes to the AODA will come into effect as of July 1, 2016.  Organizations should take note of these changes to understand how they impact their approach to accessibility.  The pending changes effective July 1, 2016 are summarized as follows:

Consolidation of the accessibility standards into one

Currently, the requirements of the AODA “standards” are found within two (2) Regulations: the Accessibility Standards for Customer Service, which speaks customer services accessibility and the Integrated Accessibility Standards, which deals with areas of information and communication, employment, transportation and the design of public spaces.

The July 1st amendments will combine and consolidate all the compliance standards into one regulation, thereby streamlining language used and the requirements for organizations.

Training

Currently, compliance requires that organizations provide training under the customer service standard to those employees and volunteers who interface with third parties, i.e. with clients, as well as any representatives who prepare the organization’s policies.  The amendments will require that AODA customer service training be provided to all employees and volunteers, regardless of whether they interact with clients or customers, plus any other person who provides goods, services or facilities on behalf of the organization.

Therefore, it is conceivable that an organization will be required to provide customer service training to independent contractors, dependent contractors, consultants, property managers or suppliers should those individuals fall into the category of those who operate on behalf of the organization to provide goods, services or facilities.

Organizations will be required to provide training to the additional group of individuals as soon as practicable, however, individuals who have already received the required training will not be required to take it again unless the organization makes changes to its policies and procedures such that re-training is required.

Documenting policies, practices and procedures

Under the current legislation, an organization’s compliance requirements can differ depending on whether it has twenty (20) or more employees, which categorizes it as a ‘large employer’.  Under the amended AODA, a ‘large employer’ will be one with fifty (50) or more employees.

The practical side of this definition change relates to the requirements regarding documenting accessibility policies, practices and procedures.  This amendment has no impact on large organization’s requirements regarding documentation, however, those organizations with less than fifty (50) employees will now need not comply with this obligation.  Large organizations will need to further prepare a document that summarizes the content of its customer service training provided to staff and confirm when that training is being provided.  The organization must inform those it serves that such documents are in fact available.

While this change affects which organizations must document their policies and procedures, those organizations with less than fifty (50) employees must continue to abide by its usual reporting and compliance requirements.

Support persons and Support animals

Not only will ‘support person’, ‘guide dog’ and ‘service animal’ be defined under the amended AODA, but an individual’s use of such supports will be altered under the amendments as well.

Currently, an organization may require a person with a disability to be accompanied by a support person while on its property/grounds for reasons that are tied to health and safety.  The July 1st amendments will require organizations to take a closer look prior to deciding that such help is necessary.  With a mind to protecting the dignity of those with disabilities, the amended AODA requires that organizations first 1) consult with the individual with the disability to discuss their individual needs; 2) consider the health and safety reasons for a support person based on the evidence available; 3) and then determine whether there are other options available besides the requirement of a support person in order to protect the health and safety of that individual.

Currently, an organization may request that the individual with the service animals provide a note from a physician or nurse confirming that the service animal is necessary for this individual.  The amendments broaden the scope of individuals who will be permitted to make use of their service animals.  The note may now come from any regulated health professional and not just a physician or nurse.

Feedback from individuals with disabilities

While the AODA currently requires organizations to provide a way for those with disabilities to provide feedback on the level of access they were able to enjoy with an organization, the amendments will require organizations to provide a feedback process that is itself accessible, i.e., in accessible formats such as in large print or available compatible with communication supports.

These changes come into effect on July 1, 2016.  Those organizations with twenty (20) or more employees must continue to submit compliance reports annually each year by December 31.  December 31, 2017 will mark the first year that questions regarding an organization’s compliance with the above amendments will need to be answered on the report.  As a result, organizations will have ample time to consider these changes, seek the assistance of their advisors and legal counsel to understand the amendments that affect them and to adjust their approach to accessibility accordingly.

The foregoing information is provided to you for information purposes only. We caution you to obtain legal advice specific to your situation in all circumstances. 

Lancaster, Brooks & Welch Labour, and Employment Department may be reached for consult on any Labour or Employment issue at 905-641-1551. Visit our website at lbwlawyers.com

 

Read more...


The Ontario Retirement Pension Plan and Your Workplace

by Leanne Standryk, Partner

The Ontario Retirement Pension Plan (ORPP) received Royal Assent on May 5, 2015. The ORPP is a mandatory pension plan for Ontario resident employees who don’t have a “comparable plan”. The stated goal of the ORPP is to ensure that every employee in Ontario will be part of either the ORPP or a comparable plan by the year 2020.  “Comparable plan” is defined as a registered pension plan, subject to federal and provincial regLeanneStandryk-Casual-onwhiteulation that meets the minimum criteria that:

  • Provides participants with a predictable stream of income in retirement for life;
  • Provides some security that participants won’t outlive their savings;
  • Requires contributions from employers to ensure fairness; and
  • Aims to replace up to 15% of a person’s pre-retirement income.

Generally defined benefit or defined contribution plans will meet the comparability test provided that the benefits equal or exceed the benefits being offered under the ORPP. Group Registered Retirement Saving Plans and Deferred Profit Sharing Plans are not currently, nor is it expected that they will, be considered comparable plans.

What does all of this mean for Ontario Employers? Ontario Employers that do not currently offer a comparable plan will be required to enroll the employees.  Ontario Employers that offer a registered workplace plan that does not meet the minimum criteria will have to enroll their employees in the ORPP or adjust existing plans to meet the minimum criteria.

Where all employees of an employer participate in a “comparable plan”, the employer will not be required to participate in the ORPP.

ORPP Enrollment

Enrollment in the ORPP is a phased in approach that will vary based on two key factors:

  • The size of the employer; and
  • Whether or not the employer maintains a registered pension plan as at August 11, 2015.

Originally, enrollment was to commence as early as January 1, 2017, however, effective February 16, 2016, the Ontario Finance Minister announced a delay in the staggered implementation dates as follows:

Phase I: Large Employers

Larger Employers (500+ employees) without a pension plan, contributions will commence January 1, 2018 at a contribution rate of .08% for both employers and employees.  In 2019, the rate will be 1.6% and in 2020, 1.9%.

Phase II: Medium Employers

Medium Employers (50 – 499 employees) without a pension plan, contributions will commence January 1, 2018 at a contribution rate of .08% for both employers and employees.  In 2019, the rate will be 1.6% and in 2020, 1.9%

Phase III: Small Employers

Small Employers (50 or fewer employees) without a pension plan, contributions will commence January 1, 2019 at a contribution rate of .8% for both employers and employees. In 2020, the rate will be 1.6% and in 2021, 1.9%.

Phase IV: Employers of any size with a workplace pension that does not meet the comparability criteria.

      For this group of employers, contributions commence January 1, 2020 at the maximum contribution rate of 1.9% unless the workplace pension plan is modified or adjusted to meet the comparability test prior to January 1, 2020.

When fully phased in, the ORPP will require that employees and employers contribute an equal amount, capped at 1.9% each (3.8% combined) on an employee’s annual earnings up to $90,000.

The delay in implementation dates announced February 16, 2016, was intended to allow time for dialog on CPP reform. If provincial agreement on enhancements to the CPP is not reached, implementation of the ORPP will move forward.

Next steps for Employers

Employers who have existing retirement savings plans should assess current retirement income plans to determine whether they meet the criteria of a comparable workplace pension plan under the ORPP. Employers should also then consider whether, from a business perspective, it is advantageous for them to modify their existing pension plans or implement a comparable workplace pension plan rather than contribute to the ORPP. Modifications must be made prior to the deadline for amending existing pension plans on January 1, 2020 and implementations must be completed before the employer’s scheduled entrance into the ORPP.

Employers who do not have existing plans should incorporate the ORPP obligation into their current business and ensure that they properly communicate the obligation to their employees. There will be potential employment law considerations for all employers and where employees and pension plans are subject to a regime of collective bargaining, there will be additional complexities to consider.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

Leanne Standryk is a senior partner at Lancaster, Brooks & Welch and she may be contacted for advice on any Labour and Employment matter at 905-641-1551.

 

Read more...


Sole Proprietorship vs. Incorporation – Which one is right for you?

by Jillian Ali, Associate
Jillian-Casual small pic for website-onwhite

Making the decision to start a business can often be overwhelming amidst the excitement. Following the development of a business endeavor, determining the business structure best suited to help build a successful business will be an important initial consideration for all prospective business proprietors. Specific tax implications and insurance liability coverage regularly impact the business structure prospective business proprietors will choose.

A sole proprietorship is the most basic form of business organization requiring few legal formalities in its set up. It exists whenever an individual decides to solely carry on business for his/her own benefit without the involvement of others, save and except for the employment of employees if they so choose. As is true of all business structures, there are advantages and disadvantages to becoming a sole proprietor, which include the following:

Advantages

  • Fairly low start-up costs and working capital requirements in addition to having few legal formalities and regulations to abide by;
  • Relatively inexpensive to form with the ability to directly maintain all profits made; and
  • The ability to deduct losses of the business from the sole proprietor’s personal income, which may cause him/her to qualify under a lower tax bracket and create a tax advantage when profits are low.

Disadvantages

  • Unlimited and sole responsibility for all liabilities, obligations and losses associated with the business, meaning that all business and personal assets of the sole proprietor may be seized in order to satisfy the obligations and liabilities of the business; and
  • As income is taxable at the sole proprietor’s personal rate, the profitability of the business may move the sole proprietor into a higher tax bracket.

Overall, a sole proprietorship can be a very attractive option to those individuals who are looking for a simplified business structure and feel that the probability of a substantial uninsurable risk is low, thus making them more comfortable with the commingling of their personal assets and liabilities with those of their business.

Alternatively, the incorporation of a corporation is the most common form of business organization. Incorporation can be completed at either the federal or provincial level depending on whether or not the business will be carried on nationally or provincially. A corporation is considered at law to be a legal entity separate and apart from its owners, also known as shareholders. As such, a corporation has the ability to carry on business, own property, incur liabilities and sue in its own name. The advantages and disadvantages associated with the incorporation of a corporation include the following:
Advantages

  • Separate legal entity with limited liability;
  • Shareholder liability is limited to the value of the assets, such as money or property, they have transferred to the corporation in exchange for shares; and
  • Potential for a tax advantage as the taxes attributed to an incorporated business may be lower than the tax bracket a sole proprietor may qualify under.

Disadvantages

  • More expensive to incorporate than to set up a sole proprietorship;
  • A corporation is closely regulated and will require the annual filing of corporate records with the government;
  • Directors must meet certain residency requirements; and
  • Potential for conflict between the directors and the shareholders of the corporation.

 

When considering the limited liability advantage of incorporation, while the shareholders of a corporation own the corporation through their ownership of its shares, they do not own the property or other assets of the corporation. In the same token, the liabilities of the corporation are not the liabilities of the shareholders. Thus, should the liabilities of a corporation exceed the value of its assets, the creditors of the corporation will have the right to demand repayment from the assets of the corporation but they will have no further recourse for any liabilities that remain unpaid as a result of the corporation’s lack of funds. In other words, the personal assets of the shareholders will not be at risk unless they have guaranteed the obligations of the corporation in their personal capacity.

As a part of the Lancaster, Brooks & Welch LLP Corporate and Commercial team, Jillian Ali can assist you in all aspects of your business legal needs. She may be contacted at 905-641-1551, jali@lbwlawyers.com. Lancaster Brooks & Welch LLP are Niagara’s Lawyers since 1882.

With respect to a corporation’s income, it is determined and subject to tax separate and apart from that of its shareholders. Therefore, a net income or loss of the corporation cannot be treated as income or loss for an individual shareholder. If the corporation desires to pay any of its after-tax income to its shareholders, the directors will be required to declare a dividend regarding same. While dividends declared to individual shareholders do constitute taxable income, in certain circumstances dividends to corporate shareholders may be received tax-free by way of an inter-corporate dividend.

In being a separate legal entity, a corporation will also continue in existence notwithstanding the withdrawal of a shareholder from the corporation by way of a sale of his/her shares or as a result of the death of a shareholder. The dissolution of a corporation may only be accomplished by a resolution of the majority of the shareholders, by way of court order or pursuant to statute if it is deemed to be inactive or in breach of its governing legislation.

On the whole, the incorporation of a corporation is often the most appealing option to those individuals who may be planning to open their business with other owners or who may one day like to provide their family members with financial benefits without relinquishing any control of the business. A more comprehensive share structure can enable a proprietor to maintain control of the business while permitting the growth in its equity to be owned by successive generations. Corporations also provide more financial flexibility while shielding the shareholder(s) from the obligations and liabilities of the corporation.

 

As a part of the Lancaster, Brooks & Welch LLP Corporate and Commercial team, Jillian Ali can assist you in all aspects of your business legal needs. She may be contacted at our St Catharines Office at 905-641-1551.

 

 

 

 

Read more...


Protect your Business for Future Generations

by Kristi Collins

 

Congratulations! You have built your family business into a great success! In a time when big box businesses reign supreme, this is no easy feat. You have invested all of your energy, time and money into making your business what it is today. Your family has been with you through the highs and lows and you want them to share in your success. The last thing you want is for your legacy to fall apart and cause family strife in your KristiCollins-Casual-onwhite for websitefinal “golden” years or after death.

As estate litigators, we see first-hand how family businesses can fall into litigation during periods of succession. The following are some issues to consider now to help keep your family business out of estate litigation in the future:

  • Start planning early. Smoothly transitioning your business from one generation to the next takes time and careful planning. You should begin considering your succession plan in conjunction with your estate plan at least five years before your planned retirement. Consider also a contingency plan in the event you are forced to retire sooner than you thought. What would happen to day-to-day operations if you were suddenly unable to participate? Who would make the decisions? Does the business have mechanisms in place to quickly introduce new leadership, if required? A sudden void in leadership due to illness or other unforeseen circumstances can often leave a business on shaky ground. Likewise, unforeseen incapacity may preclude you from later changing your will, leaving the future of the business and the estate in confusion and conflict.
  •  Be realistic about your family and your business. Are your children involved in the business? Do they work well together? Do they want to continue in the business long-term? Is one more involved than the others? Do you have non-family business partners to consider? Are there existing personal dynamics which complicate your business and/or estate planning, such as divorce/remarriage or family in-fighting? Does the business have long-term viability or can you already foresee a decline in market presence? If there is no clear path for handing down a successful business and you anticipate trouble, consider whether selling the business during your lifetime and dividing the proceeds in your will is the more realistic approach to maximizing value and peace of mind for your family.
  • Consider your priorities. What is best for your company’s future may not be what is “fair” or “equal” among your heirs. Indeed, what is equal is not always fair. Equally dividing management or ownership of a company may cause difficulties in decision-making down the line. Moreover, one or two of your heirs may invest more time and effort into the success of the business, in which case it may be more fair for them to hold more of an ownership stake. You could leave management with one and divide ownership – the use of non-voting shares, for example, is a useful way to split ownership but not decision-making. Still, you should be aware that disgruntled shareholders have various legal remedies to challenge directors which could ultimately overcome your intended plan. While succession planning, you may wish to revisit your company’s articles, bylaws and shareholders agreement(s) to address your specific concerns.
  • Comprehensively discuss your considerations with your advisors and periodically revisit your plan. The more information about your business, your priorities and your assumptions for the future that you share with your financial and legal advisors, the better able they will be to craft a solution that’s right for your family and business. Multiple wills, estate freezes, trusts, non-voting shares and various other provisions within shareholder agreements are all legal tools that can be used to plan your estate and minimize the likelihood of a future legal challenge. They can also be the source of litigation if they are used inappropriately or based on mistaken assumptions. As your circumstances change (such as market changes, divorce or death of a partner or relative), revisit and revise your plan as necessary to ensure it continues to represent your intentions.
  • Talk to your family about your plans. Even a carefully thought-out estate plan may cause conflict in your family or business. By not discussing it with your family, you only delay the inevitable and eliminate your important role in resolving the matter. Directly explaining your intentions and rationale for your estate plan will go a long way in preventing misunderstandings, resentment and hurt feelings down the road, which, after all, are at the foundation of most estate litigation.

 

Kristi Collins is an Associate in Lancaster, Brooks & Welch’s litigation law team. She handles a variety of civil litigation matters, including complex corporate and commercial litigation, bankruptcy and insolvency law, and estates litigation. She may be contacted for a consult at 905-641-1551.

 

 

Read more...


Who would guess that your www. could have so many legal considerations?

0001-Formal-onwhiteBy Robert Galloway

 

Domain names are unique identifiers/addresses for a specific websites. In today’s technological age, sole practitioners, partnerships, and corporations must have an online presence to succeed in the corporate world. The easiest way to create an online presence is by creating a website and registering an associated domain name. Unlike trademarks where there can be several owners of the same word mark, but in relation to different goods and services, there is only one owner globally of each domain name per top level domain. So what do you do when another entity has used your brand or trademark in their domain name or used a domain name which is confusingly similar to your brand or trademark?

In this internet era, when considering trademarks, you must also turn your attention to their interaction with domain names. The interplay between trademarks and domain names causes many internet-based trademark infringement issues to arise. Such issues include: whether domain names can be trademarks, whether there is priority for a trademark owner in allocating domain names, and when a domain name infringes a registered or unregistered trademark. Domain names have a functional aspect, but can also act as trademarks to distinguish the goods and services of one business from another. As such, where a corporation wants to register their domain name as a mark, similar to all other trademarks, that corporation must satisfy the registerability requirements of the Trademarks Act.

With respect to the allocation of domain names, the policy followed in Canada is that a domain name is awarded to the person or corporation who first registers it. It is a first-come, first-served system and registration is done through an accredited registrar. It is also possible to register multiple domain names which all resolve to the same website. Although the first registrant may own the domain name, this does not necessarily protect them from possible trademark infringement claims if that domain names infringes upon another corporation’s trademark.

Registrants of a domain name must accept a binding arbitration clause as part of the registration which creates dispute settlement proceedings to hear disputes revolving around trademark and domain name holders. For general top-level domains (such as “.com”, “.org”, and “.net”) the Uniform Domain Name Dispute Resolution Policy (UDRP) sets out the dispute resolution procedures. The URDP was adopted by the Internet Corporation for Assigned Names and Numbers, which controls the assignment of domain names. Under the UDRP, the arbitration panel may order the transfer or cancellation of a domain name registration. In cases involving the use of the national code of Canada “.ca” domain names, the Canadian Internet Registration Authority (CIRA) has jurisdiction over any disputes and implements the Domain Name Dispute Resolution Policy (CDRP). The main difference between the UDRP and CDRP is that CDRP has a more limited definition of what constitutes bad faith and draws more parallels with Canadian Trademark law. When facing a trademark infringement case involving a domain name, an individual can use either the UDRP or CDRP process or bring action in national courts. That being said, the arbitration processes run by UDRP and CDRP are generally a much faster and less expensive means of recourse than normal court proceedings.

The presence of copy-cats and cyber-squatters is a major issue facing trademark holders and domain name registrants. Copy-cats register domain names that are confusingly similar to known brands by either including that brand in the domain name or registering a domain name that includes common typos in hopes that potential customers may accidently makes those typos. Cyber-squatting is where an individual purchases a domain name with the intention of selling that domain name at a higher cost to the owner of the trademark. When a potential customer types in a possible domain name, their initial expectation of the resulting site is that it is related to the business in which they are searching for. Knowing this, copy-cats and cyber-squatters will purchase domain names of well-known brands in an attempt to direct customers to their websites.

Actions for trademark infringement can be brought for both registered and common law trademarks. A trademark owner must demonstrate, similar to general trademark infringement cases, that the domain name is identical or confusingly similar to that owner’s trademark, that the domain name owners has no rights or interests in respect of the domain name, and that the domain name has been registered and is being used in bad faith. All three elements must be proved to cancel or transfer a domain name.

With respect to the first element, that the domain name is identical or confusingly similar, this is determined using the normal procedures of the Trademark Act. The second element requires that the domain name holder have no legitimate right or interest in the domain name. To halt the cancellation or transfer of the trademark, the registrant must demonstrate that they were authorized by the trademark owner to register the domain name or have made fair use of the domain name with no commercial intent. Lastly, the trademark owner must establish that the domain name was registered and used in bad faith. The following situations have been deemed to be of bad faith:

  • circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
  • you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
  • you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  • by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.

Where these situations of bad faith do not exist, the panel may still find bad faith if they are convinced that at the time of registration, the registrant knew of the trademark holder’s trademark interest and the domain name was used in bad faith. Where the elements can be satisfied it is often determined that the domain name makes a false misrepresentation that the owner of that domain name is associated or connected with the trademark owner’s trademark and associated corporation and could constitute passing-off. The courts have held that the intentional registration of a domain name knowing that the domain is similar or identical to another corporation’s valuable trademark weighs in the favour of the likelihood confusion exists.

Rob Galloway is an Associate with Lancaster, Brooks & Welch LLP. Rob assists clients with their Corporate and Commercial needs and is available for advice at 905-641-1551.

 

Read more...


Family Law 101 – What to expect when you are separating.

Jean-Casualby Jean Gaspich-Beaton

The Initial Consultation- With Your Lawyer

 

The initial consultation is much like an interview process in that you will be asked many questions, and you will provide important information needed for your lawyer to formulate and opinion and give you advice. I always tell potential client’s at our first meeting that the consultation can be thought of as an informal interview; an opportunity for them to determine if they feel comfortable with me, and an opportunity for me to gather pertinent information to offer advice to move the file forward. I like to think of my initial consultations as a “fact finding process”, a way to gather all the information so I can get familiar with you, your story, and the direction of your file.

At an initial consultation, your lawyer will likely give you an opportunity to tell a “nutshell version” of your story. This might start with a question about why you feel you need the assistance of a family lawyer, or why you are looking for advice. Based on the summary of information you provide, your lawyer will then ask you many leading questions. Some of these questions might seem irrelevant or even uncomfortable. However, your lawyer has an obligation to obtain important background information in order to determine the options available to you. For example, your lawyer might ask you if violence has ever been an issue in your relationship. While this might seem irrelevant to your inquiry about obtaining a divorce, your lawyer might be trying to determine if mediation or other collaborative options might be an option for resolving the issues.

After gathering the important information, your lawyer will discuss the subjects that directly affect you as a result of your separation. The “top 5” family law issues that most people need to address are: custody/access, child support, spousal support, equalization and the matrimonial home. These will be discussed below.

Custody/Access

When you and your spouse separate, you and the other parent must determine where the child/children will live and how decisions will be made about them. The terms “custody” and “access” are legal terms that are often misused or misunderstood, and it is therefore important to distinguish these terms.

Custody – Custody is the term to describe how major decisions will be made about a child after parents separate. The two most common types of custody are sole custody and joint custody. Custody is not about where the child lives or who the child lives with. Custody refers to decision-making authority only.

Sole Custody – Sole custody is when one parent has the obligation to make important decisions affecting the child’s health care, education and religious upbringing. This does not mean the other parent is excluded from the child’s life. Quite the contrary, the sole custodial parent will often have an obligation to consult with the non-custodial parent and seek input before making important decisions.

Joint Custody – In a joint custody arrangement, both parents make important decisions for and about the children together. The decision regarding custody will depend largely on the specific facts of your case.

As mentioned above, custody has nothing to do with where the child lives. However, in sole custody scenarios the child will typically live with the sole custodial parent but spend regular time with the non-custodial parent. Joint custody does not necessarily mean “equal time.” For example, in a joint custody scenario it is quite reasonable for the child to live “primarily” with one parent even though the parents have joint custody and joint decision-making ability.

Parents often ask at what age are the children allowed to decide where to live on their own. People often mistakenly believe that 12 or 13 is an age when the children’s decisions are accepted. This is not correct. A child is a dependant subject to a parent’s care and supervision at least until they reach 18. As a child matures and develops, his or her thoughts and opinions should be given greater weight, but the ultimate decision should rest with the parents. Parents need to look at their family situation and decide what residential arrangements make sense for the children. Some factors to consider are:

  • The ages of the children;
  • How well the children adapt to change;
  • How near you and your former partner live to each other;
  • Your ability to communicate with each other; and
  • Your willingness to be flexible.

Access

Access is the legal term to describe the physical amount of time a parent without custody spends with his/her children. The amount of time and the specific schedule depends on what works best for everyone. Some people settle on a specific schedule that might include alternate weekends and one or two days per week. Other people opt for an “open door” parenting approach where there is no specific schedule and access is generous and liberal. The person with whom the child is with on a given day will typically be responsible for that child’s day-to-day decisions.

Child Support

Child support is the financial contribution a parent pays to help provide for his or her children who are not living with him or her to help support the child/children. All parents have an obligation to support their children. The child involved and entitled to receive support can be a biological child, an adopted child, a stepchild or a child for whom an adult has acted as a parent.

Children of unmarried parents have the same rights to support from their parents as the children of married couples. In determining how much child support must be paid Family court judges use the “Child Support Guidelines.” These guidelines are available online to give you an idea of how much support you can expect to receive or how much support can expect to pay. The payor parent’s income, the number of children entitled to support and the living arrangements of children are all factors that will determine the quantum of child support to be paid.

The quantum of child support owed is based on the payor parent’s income. This means that child support is owed even if the custodial parent, or parent with whom the children primarily reside, earns more than the payor parent. It is expected that both parents will contribute financially for the care and support of the children. Therefore, child support is not negated by a reduced or lower income of the payor parent.

Child support is typically paid on the first of each and every month. Some people prefer to receive their child support payments in installments. How you choose to receive support is up to you, but it must be agreed upon with your former spouse. Child support is not negotiable, and you cannot contract out of child support.

Special Expenses

Child support is intended to assist in providing food, shelter and clothing for the children of the relationship. Special expenses, sometimes called Section 7 or extraordinary expenses, are additional costs that will be shared by the parents. These special expenses include things such as childcare expenses, medical expenses, extra-curricular activities and expenses for college or university. These additional expenses are paid by both parents in proportion to their income. If parents earn roughly the same amount of money, the expenses will be shared equally.

Spousal Support

Both married and unmarried couples may claim spousal support. Spouses who live together but are not married may have a right to ask for support if they have lived together for more than three years or if they have lived together for less than three years but have a child together.

The law expects adults to be self-sufficient and to look after their own needs to the best of their ability. However, during a relationship, one person sometimes spends more time looking after the home and children and gives up opportunities to become more skilled or to earn a higher income. When a relationship ends, that person is at an economic disadvantage and may claim spousal support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.

In making a determination of spousal support, a judge must consider many factors, including the age and health of the couple and the effect, if any, the marriage or common-law relationship had on employment opportunities. A lawyer can assist you by providing an opinion on your entitlement to receive support (or obligation to pay support), on the quantum you might expect to receive or pay and on the duration the support entitlement might last.

The Federal Government has drafted Spousal Support Advisory Guidelines, which provide a range of support amounts based on the age of the spouse receiving the support, the length of the marriage and the presence or absence of child support. These guidelines are designed to help you reach an agreement based on the amounts awarded by judges in similar cases. It is important to understand that the Spousal Support Advisory Guidelines are only guidelines and have not been legislated by the federal government, so they are not mandatory.

Equalization

According to Ontario’s Family Law Act, marriage is an equal partnership. Entering a marriage means entering into an emotional partnership and a financial partnership. When a marriage ends, the partnership is over and property has to be divided. Any and all assets acquired by the marriage partnership are subject to division if the partnership fails. All assets and liabilities of the “partnership” must be divided equally.

What is “Property?”

The definition of property varies a little from province to province. For the most part, property includes all real and personal property and all interests in property. Everything that was acquired by either party between the date of marriage and the date of separation is included. The following are examples of property that is included and subject to division:

  • Household contents
  • Vehicles
  • Art collections/antiques
  • RRSPs
  • Pensions
  • Cottages and cabins
  • Severance payments
  • Stock options
  • Shares in companies
  • Trusts
  • Recreational vehicles
  • Sporting equipment – and on and on

A fair division of the assets of the marriage partnership is critical for both spouses to be able to move on to new, independent and financially secure lives. Both parties are obligated to disclose all assets in negotiating terms of separation. Failure to disclose significant assets could result in an agreement being set aside if the outcome would have been different had it been disclosed. Typically, both parties will complete a Financial Statement with their lawyers and disclose all assets and liabilities through this form.

What about the Debt?

All debt acquired by the family must be offset against the asset. Consider the following debt that typically exists in a given family unit:

  • Mortgages
  • Loans
  • Judgments by creditors
  • Credit cards
  • Lines of credit
  • Car leases
  • Unpaid income tax/costs of disposition of assets (e.g. real estate commission)
  • Capital gains tax

An Equalization Example

Jenny and Adam have been married for 20 years. Neither party had any assets or debts at the date of marriage. Shortly after the marriage they purchased a home jointly. Adam has worked for General Motors for the past 18 years and has a significant pension through his employer. Jenny has always worked part time and has no retirement savings. The following is a summary of each of their assets and liabilities:

Jenny:

Assets:

  • Home (1/2 of $300,000 = 150,000)
  • Vehicle ($5,000)
  • TFSA ($10,000)

Adam

Assets:

  • Home (1/2 of $300,000 = 150,000)
  • Vehicles ($10,000)
  • Pension ($100,000)
  • TFSA ($10,000)

Jenny’s assets add up to $165,000 and Adam’s assets add up to $270,000.

They also have the following debts:

Jenny

Debts:

  • Mortgage (1/2 of $100,000 = $50,000)
  • Credit card debt ($1,000)

Adam

Debts:

  • Mortgage (1/2 of $100,000 = $50,000)
  • Credit card debt ($8,000)
  • Car loan ($6,000)
  • Line of credit ($5,000)

Jenny’s debt is $51,000 and Adam’s debt is $69,000.

Jenny’s net worth is determined by adding her assets less her debt. $165,000 – $51,000 = $114,000.00

Adam’s net worth is determined by adding his assets less his debt. $270,000 – $69,000 = $201,000.

In this scenario, Adam clearly has a higher net worth than Jenny. Now we must determine the difference between the two net worth’s and divide that difference. In this scenario, Adam’s net worth of $201,000 – Jenny’s net worth of $114,000 is $87,000. $87,000 / 2 = $43,500. Therefore, Adam would owe Jenny an equalization payment of $43,500 in this particular scenario.

The equal contribution of each person to the marriage is recognized in law. The law provides that the value of any kind of property that was acquired by either spouse during the marriage and still exists at date of separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse since the date of marriage must be shared. This is accomplished through an equalization payment, or an equalization of net family property. In the above scenario, Adam would owe Jenny an equalization payment as a result of him having a higher net worth on the date of separation.

What about unmarried couples?

The “partnership” arises upon becoming legally married in Canada. The partnership concept under the Family Law Act extends to same sex and opposite sex married couples, but it does not apply to couples who were never married. If you are living with someone without being married, people often say you are in a common law relationship or you are cohabitating.

There is no legislative requirement that property be divided for unmarried couples. Generally, couples who live together do not have the same rights as married couples to share in the value of property, including, in some cases the home they live in, unless the property is in both of their names, or they paid for it together.

Matrimonial Home

The matrimonial home is a special asset that requires separate consideration from other family property. All provinces provide for a restriction on one spouse’s ability to dispose of or encumber the matrimonial home without the other spouse’s consent. This protects the value of the home for sharing at marriage breakdown.

Both spouses have the right to occupy the matrimonial home. Possession does not necessarily relate to ownership of the matrimonial home. In Ontario there is an automatic equal right to possession of the matrimonial home at the time of marriage breakdown regardless of ownership of the home. If parties can’t agree who will stay and who will leave, they may have to ask a court to make an order for exclusive possession.

Typically, the couples purchase the matrimonial home early on in their relationship and the home is usually placed in their names jointly so that one would inherit automatically if the other one died. The house is often the main asset of the family and is usually divided equally unless there is some very unusual circumstances.

Sometimes, one person will wish to remain in the home permanently. In this scenario, that person will need to purchase the other person’s interest. This is called a “buy out”, and although this is a standard practice, you often need to have all other issues sorted out before a bank will provide you with financing. For example, if you are entitled to child or spousal support, the bank will want to know you will have a consistent stream of income before allowing you to obtain a new mortgage. Likewise, if you are obligated to pay child or spousal support, the bank will want to know how much disposable income you will have available after support is paid each month.

Putting it all together

After your initial consultation, you will want to be sure that you are comfortable with your decision to move forward in resolving the issues from the breakdown of the relationship. I have had people consult with me three, four, even five times, before they make a decision. Knowledge is power and the more informed you are, the better equipped you will be to move forward feeling confident about your rights and/or obligations.

As mentioned earlier, you will also need to be confident in your lawyer. You have the right to consult with more than one lawyer to obtain information, various opinions and find a person you feel comfortable with. You need to confide in your lawyer, and therefore it is of utmost importance that you trust your lawyer.

I always advise client’s at the outset of a file that there are only two ways to receive a binding order or agreement for you and your former spouse. Firstly, you can reach an agreement with your former spouse, often through the assistance of your respective lawyers, and sign an agreement. If you are unable to reach an agreement on your own, the only other person who can impose terms upon you is a Judge in the Family Court.

The first step I take for a client is drafting an initial invitation letter to the client’s former spouse advising that I have been consulted by the client and that the client wishes to engage in negotiations with the goal of entering a separation agreement. If the former spouse responds in a reasonable amount of time and with interest in negotiating, the discussion begins. The parties can choose to engage in mediation or other collaborative options for resolving their matters, and your lawyer should advise you of these options. However, if the former spouse has no interest in negotiating, then the only option available to my client to ascertain his or her rights is through an Application to the Family Court. The Court process is not the quick solution many people assume it to be. The Court process can take months, even years in some situations. There are many different stages in a Court proceeding, and these will be discussed in a separate article.

Jean Gaspich Beaton is an Associate Lawyer in our Family Law department and she can be reached for a consultation at Lancaster, Brooks & Welch 905-641-1551.

 

 

Read more...


Have yourself a Merry…

Have yourself a Merry Little Christmas Holiday???       

By Leanne Standryk, Partner

 

As we approach the holiday season, many of our employer clients prepare to celebrate achievements of the past year and share festive thanks to employees, clients, suppliers etc. for contributing to the success of their business.  You plan celebrations which often include decorations around the office space, special foods, a Christmas tree, angels and music about the birth of Christ.

As a responsible employer you have taken care to ensure that your workplace is accompanied by the policies that foster a working environment where people of every religion, culture and nationality feel welcome and free to embrace and celebrate their festivals and traditions.  As so you consider… are these celebrations offensive?  Should we be more neutral in our wishes for a happy holiday?  Should you cancel Christmas? Take the office Christmas tree down? How do we strike a balance of celebration and respect? We know by now that every person has the right to equal treatment in employment and must not suffer discrimination based certain enumerated grounds including religion and creed.  Our human rights legislation does not require employers to provide a workplace that is free from all religions and creeds other than the employee’s choice. It requires an employer to accommodate employee religious beliefs unless to do so would create undue hardship.  This may include changing rules, standards, policies, workplace culture and the physical environment.

In this sense accommodation of religion or creed does not mean cancelling Christmas, Eid Mubarak, Hanukah, or any other religious celebration because one employee does not celebrate in this particular way.

Subject to these human rights considerations, the manner in which you express your holiday cheer is up to you using good judgement and the notion of inclusivity.  To this end we recommend the following:

  1. Participation in festive celebrations should be voluntary.
  2. Participation in gift exchanges should be voluntary.
  3. Employees should be “invited” not “required” to decorate their workstations.
  4. Festival celebrations and year end parties should be sensitive to fasting or restrictions tied to religious observances.
  5. If an employee honestly and sincerely raises a concern of religious discrimination due to holiday celebrations including décor, days off, music or greetings, consider maintaining common areas of your workplace neutral in your holiday décor and limit festive décor to employee personal workstations. Meet with the employee on collaborate as to what a reasonable (not perfect) accommodation may look like.
  6. If you are providing time off to participate in employer workplace celebrations those who due to religious observance cannot participate should be given the same time free from work to avoid a claim of discrimination.
  7. Non-participation should not be viewed or treated adversely.

At this time of year we take the opportunity to thank our clients for the confidence in our services and contribution to our success and wish everyone a happy holiday.

For Advice on any labour or employment matter, please reach out to the Leanne Standryk, Vita Gauley or Emily Keene at Lancaster, Brooks & Welch – 905-641-1551

 

 

Read more...

St. Catharines Office

  • mail_white P.O. Box 790
  • user_white 80 King Street. Suite 800
    St. Catharines, ON, L2R 6Z1
  • speech_white Tel: 905.641.1551
  • speech_white Fax: 905.641.1830
  • pin_small_whiteMap

Welland Office

  • mail_white P.O. Box 67
  • user_white 247 East Main Street
    Welland, ON, L3B 5N9
  • speech_white Tel: 905.735.5684
  • speech_white Fax: 905.735.3340
  • pin_small_whiteMap

Connect with us:

Scroll to top