Members of the firm recently attended the Alcatel-Lucent employee vendor fair. A variety of businesses from Kanata attended to showcase their products and services to the employees of Alcatel-Lucent. Attending for the firm were family lawyer Gina Rossi, real estate lawyer Louise LeBlanc, civil litigation lawyer Bill Parker, and corporate & commercial lawyer Olegas Maksimovic.

Alcatel-Lucent employees were asked to guess the number of Hershey’s Kisses in  jar for a chance to win a $100 gift certificate from Perspectives Restaurant at the Brookstreet Hotel. Guesses ranged from less than a hundred to over a thousand.  

The number of Kisses was not determined until after the event. After collecting the ballets, firm partner Patrick Snelling counted the chocolates with the help of legal assistant Laura Holt. The utmost care was taken to ensure that an accurate result was obtained before the winner was notified.

Thank you to all who participated!

Patrick Snelling & Laura Holt determine the results

The final count

Mischief to data is a criminal offense resulting from the unauthorized destruction or alteration of data on a computer system.

Although the charge is relatively rare, there are a variety of situations that may lead police to bring this charge against individuals who are unaccustomed to finding themselves in criminal court. Often individuals involved in civil disputes such as employment lawsuits or commercial litigation  unexpectedly find themselves being charged with mischief to data.

In the employment context, employers may search the computer of former employees after they leave or are dismissed. If an employee was dismissed for cause an employer could be both looking for, and expecting to find, evidence that an employee has altered or deleted the information contained in a company computer. If employers do conclude that certain information on a computer has been altered or destroyed they may decide to pursue criminal charges.

Once contacted, police investigators often rely on an employer’s investigation in order to satisfy themselves that they have the necessary reasonable and probable grounds to lay charges. Because of the reliance by police on the employer’s version of events, those charged are often at the mercy of the facts as determined by their former employer. Bringing criminal charges can also be used in this way by employers to gain an advantage in civil proceedings with an employee.

Because it is a criminal charge, mischief to data must be proven by the Crown prosecutor beyond a reasonable doubt. An individual accused of mischief to data is also entitled to the procedural protections of the Canadian Charter of Rights and Freedoms. If one is charged with a criminal offence while in an civil employment law dispute it can complicate both sets of proceedings. It is important to obtain legal advice regarding the impact of each dispute upon the other and the different approaches necessary to properly defend and litigate each proceeding.

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

Before signing off on a separation agreement, both parties must exchange sworn financial statements along with full and complete financial disclosure supporting their respective financial positions. 

Where there is lack of financial disclosure, a party may petition the court to set aside a separation agreement. There may be significant consequences where a party has failed to disclose an asset, thereby misrepresenting their true net worth. Both parties should be completely aware of their respective net family properties when equalizing or dividing assets.

Cases that are litigated require the production of financial statements. When commencing court proceedings, both parties must serve and file their sworn financial statements, tax returns and notices of assessment for the past three years. At the initial stages of court proceedings, judges at case conferences will immediately order the parties to disclose all relevant financial documentation.

Failure to provide relevant financial information when the agreement is executed is a major criterion which may be used in attempting to set aside an agreement.  This arises where one of the parties fails to fully disclose his or her assets. 

Although financial statements are time consuming and a burden, they are well worth producing in the early stages of negotiations, rather than risking the possibility of having your agreement declared null and void. The financial statement should also form part of the agreement so as to ensure that the opposing party is fully aware of your financial position.

Where there are issues of child support, the obligation to disclose income information is on-going. Pursuant to section 21 of the Federal Child Support Guidelines, parties must disclose their personal income tax returns, notices of assessment for the past three years, along with a recent statement of earnings.  

The bottom line is that it is always best to fully disclose one’s financial position in advance of executing an agreement. Otherwise, there is a risk of a former spouse  seeking a share in the division of an asset that was not valued or disclosed upon separation.

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.