Just in time for the holidays, the legal section of the National Post has reported on a Saskatchewan man who built the Supreme Court of Canada out of LEGO bricks for his wife. The project was 15 months in the making and required over $1,500 in custom LEGO bricks. Judging by the bright flowers and green grass, our guess is that it is set during the annual tulip festival in Ottawa. No word yet from LEGO on whether a boxed set of the model will be available in stores before next Christmas!

Merry Christmas & Happy Holidays!

If you enjoy a drink during the holidays you may find the ongoing trademark dispute between Maker’s Mark bourbon whisky and tequila maker Casa Cuervo particularly interesting.

In a case that is now headed to a United States Federal Appeal Court, Maker’s Mark whisky is claiming infringement of its trademark, namely the wax dripped over its bottle. In Canada this type of trademark is known as a “distinguishing guise”. Normally, a trademark is a two dimensional image, essentially a slogan or a brand name. This contrasts with a distinguishing guise which is essentially a three dimensional trademark. To be registered, a distinguishing guise must distinguish an owner’s services or wares from the wares or services of their competitors. A more commonly known  distinguishing guise is the shape of Coca-Cola bottle that many consumers strongly identify with the Coca-Cola Company.

For a more detailed analysis of the case and description of distinguishing guises check out a post from earlier this month by local Ottawa blogger and trademark lawyer Gregory Pang.

One of the difficulties Plaintiffs frequently encounter in Small Claims Court is the cost of pursuing a claim. In addition to legal costs and court costs, Plaintiffs are often required to obtain expert reports in order to prove an element of their case. An expert  report is essentially an opinion on a material issue given by a qualified expert.

Under Ontario law, expert reports are required in a wide variety of cases such as when a dispute arises over a medical opinion or to asses damages in a complicated case. Most experts worthy of the name are accomplished professionals in their chosen field and it can be quite costly to both obtain a report and have an expert testify in court.

The rules of the Small Claims Court are designed to promote the hearing of a case in both a just and efficient manner. One such example is the admissibility of expert reports at a Small Claims trial. Ordinarily an expert is required to attend in person to testify at trial but in Small Claims Court it is possible for a judge to rely on Section 18 of the Small Claims Court Rules and accept an expert’s report as evidence without the expert actually being present in court.

The Ontario Insurance Law Blog, maintained by the law firm McCall Dawson Osterberg Handler LLP in London, Ontario, recently reported a case where this approach was taken at trial by a judge of the Ontario Small Claims Court.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

The Supreme Court of Canada has agreed to review a controversial pension case decided by the Ontario Court of Appeal in April 2011. The case involves the treatment of pension plans after a company has applied for protection from creditors under the Companies’ Creditors Arrangement Act (the CCAA) – a process similar to Chapter 11 bankruptcy in the United States.

In the case under appeal, the company, Indalex Limited, entered CCAA proceedings at a time when its pension plans were underfunded. Later, after Indalex sold off its major assets the proceeds went to pay off the company creditors while the company pension plans remained underfunded.

At the Ontario Court of Appeal the pensioners successfully argued that the pension shortfalls should be funded in priority to the creditors who lent money to the company once it had entered CCAA proceedings. The company then appealed this ruling to the Supreme Court of Canada.

The eventual Supreme Court decision will have a significant impact on how underfunded pension plans are treated by companies who have applied for creditor protection under the CCAA.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

The new Canada Not-for-Profit Corporations Act came into force October 17, 2011. All federally incorporated not-for-profit corporations must continue into this new Act by October 17, 2014. Failure to continue the not-for-profit corporation will result in dissolution.

The new Canada Not-for-Profit Corporations Act makes positive improvements to the not-for-profit sector particularly in the areas of powers, corporate governance and accountability. Under the old regime, a not-for-profit corporation only had the powers expressly granted to it under its Letters Patent. Under the new Canada Not-for-Profit Corporations Act, a not-for-profit corporation has the powers of a natural person subject only to restrictions in the articles, thus opening opportunities for non-for-profit to engage in activities that might previously have been unable to pursue. Corporate governance has been brought more into line with those applicable to the for-profit sector. Accountability has been made more rational, with greater accountability to members including the right of members to access oppression remedies, and with the mandated requirement for audited financial statements being eliminated for some lower revenue corporations.

The transition by a not-for-profit corporation from the old act to the new Canada Not-for-Profit Corporations Act is made by a continuance. A continuance is filing of Articles of Continuance, along with the new by-laws with the Director for the Canada Not-for-Profit Corporations Act. The Articles of Continuance and new by-laws must be approved by the members by special resolution prior to submission. While there is no fee for the continuance, the process is not trivial and requires significant changes to the by-laws. The good news is that in many cases the by-laws may be significantly reduced because the default provisions of the new Act may be relied upon. A clear understanding of the new Canada Not-for-Profit Corporations Act is required in order to appropriately formulate the new by-laws to preserve the intentions of the members.

We represent the interests of a number of not-for-profit corporations located in Ottawa and elsewhere in the Province of Ontario.

As reported last month in the Ottawa Citizen the Supreme Court of Canada recently ruled that the Canadian Human Rights Tribunal may not award legal costs in its decisions.

In most courtroom litigation in Ontario there is a significant chance that the losing side may be liable for a portion of the other side’s legal costs. The possibility of costs increases the likelihood that parties to a dispute will settle a matter before going to trial and  having to pay significant legal fees.

The recent case before the Supreme Court involved a dispute before the Tribunal where a former member of the Canadian Forces was awarded $4,000 at the Tribunal but had to pay $196,000 in costs to obtain this award. Initially, the Tribunal made an award of $47,000 in costs but this was eventually overturned by the Federal Court of Appeal and the Supreme Court affirmed that the costs award should not have been made.

Even before the Supreme Court decision  the Ontario Human Rights Tribunal generally did not award costs. The Supreme Court decision clarifies that unless specifically permitted to so by law, Human Rights Tribunals in Canada should not be making costs awards.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

The firm, along with a busload of invited guests, recently took its annual football trip this year to see the New York Giants take on the Miami Dolphins at the New Meadowlands (MetLife) Stadium.

In spite of an unseasonal October snow storm our group was able to arrive in Manhattan on Saturday in time to see the Ottawa Senators beat the New York Rangers 5-4 in an overtime shootout. Sunday started early with tailgating outside the Meadowlands Stadium. In addition to cooking our own chili and sausages we were able to see various types of American tailgate prepations ranging from bus mounted big screen TVs and keg taps to alligators on the grill. After a slow start to the football game, Eli Manning and the Giants eventually recovered to beat Miami 20-17.

Connolly Nichols Allan & Snelling LLP is looking forward to its next football trip, to occur in Fall 2012.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

Members of the firm were recently at Scotiabank Place to watch the Senators take on the Winnipeg Jets. After giving up an early goal the Senators came back to win 3 – 1. The event was hosted by the Kanata Chamber of Commerce as part of its 20th anniversary celebrations.

The firm is now looking forward to its annual promotional football trip to see the New York Giants play the Miami Dolphins. Pictures and details to follow.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

Employment disputes can involve a variety of different areas of the law. Most employment issues revolve around the principles of contract. However, an employment dispute will also often include issues of human rights, insurance, workplace safety and pensions. Compensation for an employee can come from any one, or several, of these areas of the law.

The recent case of Zelsman v. Meridian Credit Union demonstrates the importance of not focusing on one area of the law while overlooking another. In that case the Plaintiff, who had been dismissed from her employment, applied for long-term disability benefits from her employer’s insurer and also filed a claim against her employer with the Ontario Human Rights Tribunal. The human rights claim was eventually settled. As is typical in such settlements minutes of settlement were signed by both parties. In the minutes of settlement the Plaintiff gave up certain rights in exchange for compensation from her former employer.

After the human rights claim was settled, the Plaintiff continued to advance her application for long-term disability benefits. Eventually, the insurer discovered that the minutes of settlement from the human rights claim specially addressed the Plaintiff’s entitlement to long-term disability benefits. On that basis the insurer denied the Plaintiff’s application for long-term disability benefits. The Plaintiff brought a motion disputing the insurer’s position but was unsuccessful. The court concluded that the minutes of settlement from the human rights dispute prevented the Plaintiff from making a claim for long-term disability benefits.

This case is an example of that fact that an employee may have multiple overlapping rights and the consequences of settling one dispute before another is may not always be clear.

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling provides corporate & commercial, real estate, family, and civil litigation services (including employment, personal injury, and insurance law) in Ottawa and the surrounding area.

In addition to the usual health and dental benefits, employers often provide their employees with long term disability plans as part of their benefits package. These plans are designed to assist employees in the event that they develop a health condition that prevents them from working for an extended period of time.

When an employee suffers an injury or illness, they may become disabled within the meaning of their employers’ long-term disability package. When long term disability benefits are provided by an employer, the employee can apply for coverage from the disability insurance provider. In Canada the main providers of insurance are Manulife Financial, Great-West Life, and Sun-Life Financial. All insurance companies have a responsibly to assess claims fairly and in a reasonably amount of time given the importance of their decision to the claimants. The claimants should be informed promptly if their claim will be approved or denied and if it is denied the insurance company should provide reasons.

Applying for benefits can be an aggravating experience for a claimant, especially when one is already suffering from a disability and has had to take a leave of absence from work. Before approving a claim insurance companies generally demand that certain forms be completed and medical information be provided. The paperwork required can be extensive and difficult to understand. It is not uncommon for insurance companies to obtain their own medical opinion that conflicts with a claimant’s version of events. Long-term disability coverage may be denied by an insurance provider on that basis.

Either before such situations arise, or during a conflict over benefits, an insurance lawyer can evaluate the potential success of a disability claim and provide guidance about the best steps to advance a claim for benefits against a disability insurer.  

Based in Kanata, the law firm of Connolly Nichols Allan & Snelling LLP provides corporate & commercial, real estate, family, and civil litigation services (including insurance law) in Ottawa and the surrounding areas.