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Centra Lawyers LLP

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Frequently Asked Questions – Centra Lawyers

Find answers to all our most common FAQs. If your question isn’t in our FAQ section feel free to ask HERE.

General FAQ Disclaimer

The questions and answers contained in the Frequently Asked Questions (FAQ) portion of this website are intended for general information purposes only and should not be treated as legal advice. The questions are based on general issues and your specific issue may not be addressed by the answer. Users should not take legal action, or refrain from taking legal action, while relying these FAQ’s. Always obtain legal advice before you you make a decision.

Corporate Law
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
What are the main differences between companies, partnerships, and sole-proprietorships?
A company is an entity incorporated in terms of the applicable Corporations Act. It is regulated by statute and statutory documents, e.g. the articles. A partnership is an contractual agreement between two or more persons. The terms of the agreement between the parties are regulated by the partnership agreement. A sole proprietorship is a registration of a single business person.
What is the difference between a BC and a Federal company?
BC Company
  • Incorporated in British Columbia.
  • Must register extra provincially in other provinces the corporation does business in.
  • Must register to do business in each province it wants to do business in.
  • Name protected against further registration in British Columbia, not the rest of Canada.
Federal Company
  • Incorporated federally.
  • Does not have to register extra provincially in each province it does business in.
  • Must register to do business in each province it wants to do business in.
  • Name protected against similar registrations in all of Canada.
Why do I need to incorporate?
Separate Legal Entity Incorporating creates a new legal entity called a corporation, commonly referred to as a “company.” It operates separately and makes decisions by resolution. A corporation’s assets belong to the corporation and not to its officials, directors, or shareholders. Continues past the event of the “owners” death When a business is incorporated, its separate legal status, property, rights, and liabilities continue to exist until the corporation is dissolved, even if one or more shareholders or directors sell their shares, die, or leave the corporation. Limits Liability Incorporation limits the liability of a corporation’s shareholders. As a general rule, the shareholders of a corporation are not responsible for its debts. If the corporation goes bankrupt, a shareholder will not lose more than his or her investment. Creditors also cannot sue shareholders for debts incurred by the corporation. Directors are also protected, except in certain exceptional circumstances, e.g. gross negligence or fraud. Lower Corporate Tax Rates Corporations are taxed separately from their owners. Because corporate tax rate is generally lower than the individual tax rate, incorporation may offer you some tax advantages. Respectability Generally, the public and business partners look more favourably on incorporated businesses than personally operated businesses. In fact, larger contractors will insist that a contractor be incorporated to do business with them. Greater Access to Capital It is often easier for corporations to raise money than it is for other forms of business.Corporations have the option of issuing bonds or share certificates to investors. Other types of businesses must rely on their own money and loans for capital. Corporations are often able to borrow money at lower rates than those paid by other types of businesses, simply because financial institutions and others tend to see loans to corporations as less risky.
What is a Registered & Records office?
A company must have a registered address where service can be affected by third parties. A company must also have an office where the public can view the company’s corporate records. As these addresses are usually the same, it is referred to the Registered & Records office (R&R) of the company.
What are Incorporation documents?
Incorporation documents consist of:
  • Notice of Articles
  • Articles
  • Certificate of Incorporation
What are Articles?
Articles of a Company refer to the statutory document that each company must have. This document regulates the relationship between the company and the shareholders and, among other things, explains the share rights, and corporate governance in relation to directors, shareholders, and officers.
Can I incorporate my own company?
Yes, you can incorporate your own company. It can be done online. However, unless you have the experience and knowledge to incorporate in a manner that fulfills your requirements, you will incorporate a basic entity with little or no flexibility or opportunity to do tax planning. Discuss your incorporation requirements with our corporate lawyer before you proceed.
What are the benefits of using a lawyer to incorporate a company?
A business has special structuring requirements which should be addressed before incorporation. Lawyers have experience with incorporations and know how to go about achieving the required result.
What is a Shareholders’ Agreement and why is it important?
A shareholders’ agreement regulates the relationship between shareholders. It is important as without a Shareholders’ Agreement, affairs between shareholders, i.e. the right of first refusal, insurance, share price, etc. is not fixed and may cause disputes.
What other documents are important?
The following documents are essential:
  • Notice of Articles
  • Articles
  • Certificate of Incorporation
  • Central Securities Register (contains a list of all the shareholders and what shares they hold)
  • Register of Directors
  • Share certificates
A company should have:
  • A shareholders’ agreement
  • Shareholders’ loan agreements
  • Copies of all shareholders’ and directors’ resolutions
  • Annual reports
What is a capital share structure and why is it important?
The capital structure of a company refers to the various share classes and the rights attached to each class of shares. Without a share structure must be flexible and allow the directors and shareholders to obtain the maximal use thereof in relation to control, dividends and investor security.
Does incorporating protect my business name?
Yes, incorporation does protect your business name, but only against further registration by others of a similar name in the jurisdiction where your corporation is registered. So, if your business is incorporated in British Columbia, no other business may register a similar name.
Why should I trademark my business name?
Your mark, or setup of your business including your name, logos, and colours, are the heart of your business and may become very valuable and desirable over time. Protecting your rights against competing businesses is important. Although your business has rights to its mark through the workings of common-law trademarks in the geographical area where it is made known, it is not protected elsewhere. Only registration of your mark as a Canadian trademark protects it against use by others absolutely.
What does annual corporate record management include?
Preparation of the Annual Report, Resolutions of Directors, and Resolutions of Shareholders, affecting execution, filing Annual Report with the Registrar of Companies, filing Resolutions in the Corporate Records Book, maintaining duplicate records of the company, providing photocopying services, maintaining office hours for the inspection of records by third parties for two business hours daily, and all other related services and correspondence for and on behalf of the company.
Commercial Law
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
What is a Shareholders’ Agreement and why is it important?
A shareholders’ agreement regulates the relationship between shareholders. It is important as without a Shareholders’ Agreement, affairs between shareholders, i.e. the right of first refusal, insurance, share price, etc. is not fixed and may cause disputes.
I want to sell my business. What must I take into consideration?
When you sell your business you want to (a) optimize the price you can demand for the business and (b) the portion of the purchase price you can retain after taxes. To achieve this, you must plan your sale and involve your professional team, (i.e. your lawyer and accountant) at an early stage. You need to consider the following:
  • Is your buyer willing and able?, i.e. does he have the money to pay the purchase price and can he manage the business successfully?
  • Can you supply all the documents to allow the purchaser and his team to complete their due diligence?
  • Have the parties agreed in principal how the transaction will be structured?
  • Will this be a sale of shares or assets?
  • It there a Letter of Intent in place?
  • Has agreement been reached on your employees?
  • When will the transaction close?
  • Have you optimized your tax efficiencies?
This is not a comprehensive list of items. Consult our commercial lawyer to discuss your transaction.
I want to buy a business. What must I look out for?
Buying and operating a business can be very rewarding. It is an exciting phase in any persons life. This excitement is the root cause of most mistakes and issues during the purchase process. The first thing to remember is that you must make a calculated decision whether to buy the business, or to walk away from the transaction. Here are a few tips:
  • Get involved in businesses that you know something about. Alternatively, ensure that you can be trained to manage the business effectively within a reasonable period
  • Research the business’ history
  • Have a professional look at the financials
  • Do a due diligence
  • Speak to the employees, see if they are willing to say on.
  • Confirm what you are buying; what is included, and what is not
  • Is there a lease or property involved?
  • Are the accounts and taxes up to date?
  • Speak to the suppliers and key customers
  • If you are not happy with the results or certain aspects of the business, walk away
After a decision is made, the legal process is simple:
  • Negotiate the terms and sign a Letter of Intent
  • Sign a Purchase Agreement
  • Decide on a closing date and close the transaction
  • Deal with any post-closing issues
How do I protect myself and my business against risks?
It is common cause that doing business is risky; anything can go wrong, some of which have little or nothing to do with the business itself. For this reason, a business owner must take all the steps he/she can to minimize this risk. There are various tried and tested methods to limit these risks; focus on the following areas:
  • Limiting personal liability
  • Splitting business risk and personal involvement
  • Keeping your assets separate from your liabilities and debts
  • Limiting risk to areas where risk should be; risk entities
  • Using formal structures to utilize statutory protection mechanisms
  • Protecting your income through tax structuring and retention strategies
  • Demonstrating fiscal and administrative responsibility
  • Operating within the confines of the agreed model
When a business implements and utilizes the aforementioned, it optimizes its chances of surviving adverse situations.
Commercial Leases. What do I need to know?
Commercial leases regulate the relationship between the landlord and the tenant. If your business is located in a premises (a shop or office), there must be a commercial lease in place. Commercial leasing in British Columbia is further regulated by the Commercial Tenancy Act.
Estate and Probate
Question on Probate and Adminstration?
Contact Sherri Robinson at (604) 463-8890 or at srobinson@centralawyers.ca to discuss your issue
Family Mediation
Question about Family Law Mediation?
Contact Adrienne Dale at (604) 463-8890 or at adale@centralawyers.ca to discuss your issue
Intellectual Property
What kinds of inventions can be protected
An invention must, in general, fulfill the following conditions to be protected by a patent. It must be of practical use; it must show an element of “novelty”, meaning some new characteristic that is not part of the body of existing knowledge in its particular technical field. That body of existing knowledge is called “prior art”. The invention must show an “inventive step” that could not be deduced by a person with average knowledge of the technical field. Its subject matter must be accepted as “patentable” under law. In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods or methods of medical treatment (as opposed to medical products) are not generally patentable.
What is WIPO’s role in the protection of geographical indications?
WIPO administers a number of international agreements that deal partly or entirely with the protection of geographical indications (in particular, the Paris Convention and the Lisbon Agreement). WIPO meetings offer Member States and other interested parties the opportunity to explore new ways of enhancing the international protection of geographical indications
What is the World Intellectual Property Organization?
Established in 1970, the World Intellectual Property Organization (WIPO) is an international organization dedicated to helping ensure that the rights of creators and owners of intellectual property are protected worldwide, and that inventors and authors are therefore recognized and rewarded for their ingenuity. This international protection acts as a spur to human creativity, pushing back the limits of science and technology and enriching the world of literature and the arts. By providing a stable environment for marketing products protected by intellectual property, it also oils the wheels of international trade. WIPO works closely with its Member States and other constituents to ensure the intellectual property system remains a supple and adaptable tool for prosperity and well-being, crafted to help realize the full potential of created works for present and future generations
How does WIPO promote the protection of intellectual property?
As part of the United Nations system of specialized agencies, WIPO serves as a forum for its Member States to establish and harmonize rules and practices for the protection of intellectual property rights. WIPO also services global registration systems for trademarks, industrial designs and appellations of origin, and a global filing system for patents. These systems are under regular review by WIPO’s Member States and other stakeholders to determine how they can be improved to better serve the needs of users and potential users. Many industrialized nations have intellectual property protection systems that are centuries old. Among newer or developing countries, however, many are in the process of building up their patent, trademark and copyright legal frameworks and intellectual property systems. With the increasing globalization of trade and rapid changes in technological innovation, WIPO plays a key role in helping these systems to evolve through treaty negotiation; legal and technical assistance; and training in various forms, including in the area of enforcement. WIPO works with its Member States to make available information on intellectual property and outreach tools for a range of audiences – from the grassroots level through to the business sector and policymakers – to ensure its benefits are well recognized, properly understood and accessible to all.
Conveyancing
Do I need a lawyer or notary to complete my real estate transaction?
Yes, you do. The completion of real-estate transaction is based on undertakings (promises) exchanged between the lawyer/notary representing the buyer and the lawyer/notary representing the seller. The funds are drawn from and received into the lawyer’s/notary’s trust account and disbursed according to the undertaking.
Why choose a Lawyer?
Notaries are limited in the services they may provide. Only lawyers can provide you with legal advice on issues that may come up before, during, and after the completion of your transaction. Also, there is a misconception that notaries are cheaper than lawyers. Lawyers’ conveyancing fees compare favourably with notaries’ fees.
How far ahead of completion should I choose a law firm to represent me?
It is advisable to choose a lawyer at least two weeks before your completion date. This will allow some lead time for us receiving documents and providing you with the accounting breakdown of your transaction in advance for your review.
What happens once I choose a law firm to represent me?
Once you have chosen your representative, let your realtor and your lender (if you’re a buyer) know who you’ve chosen. The realtor will proceed with providing your representative with the contract documentation and your lender will provide your representative with mortgage instructions.
What is the difference between “tenants in common” and “joint tenants”?
Joint tenants own the property in equal shares, have an equal interest in the property, and an equal right to use the whole of the property. If a joint tenant dies, his or her interest passes to the surviving joint tenant(s) and does not normally form part of the deceased’s estate. Joint tenancy is a common choice for spouses who want to ensure that upon the death of one of them, the surviving spouse will have full ownership and use of the property.
Why do I need to provide my down-payment by a bank draft or certified cheque?
In a real estate transaction, your lawyer/notary needs to make sure that the funds they receive are “certified/guaranteed funds”. Personal cheques are not guaranteed funds because they have a “clearing period”. Wire transfers can be problematic due to the deductions for wire fees and a time delay in the transfer. Bank drafts and certified cheques provide the certainty that the funds can be used right away to complete your transaction.
How much do I need to pay for Property Transfer Tax?
Property Transfer Tax (PTT) expense equals to 1% of the first $200,000 and 2% of the balance of the purchase price. For example, if you buy a $600,000 home, you will pay $10,000 in PTT.
What is a co-ownership agreement and do I need one?
A typical co-ownership agreement defines the financial contributions each party made towards the purchase price and the responsibility for any mortgages registered against the title. It also clarifies the percentage contribution that each owner must make towards common expenses – such as property taxes, minor repairs, utilities, cable, and strata maintenance fees. The co-owners may also be interested in defining the “ground rules” about the use of the property and mechanism for buy-sell when co-owners wish to part ways. The benefit of having a co-ownership agreement is that parties address any issues upfront to prevent disagreements and uncertainties down the road.
What is a bare trust agreement and do I need one?
A bare trust agreement is a declaration of a trust arrangement between a “nominee” and a “beneficial” owner. The beneficial owner of the property is the person who makes a capital contribution towards the equity in the property. For reasons of convenience, estate or tax planning, a beneficial owner may appoint someone else to hold the title to the property or join in the legal ownership (a “nominee”). The agreement will define that the nominee must follow the directions of the beneficial owner when dealing with the property and will receive proceeds from the sale of the property.
Can I add/remove someone as a co-purchaser or co-owner of the property?
If you want to add or remove a buyer after you’ve already signed a purchase contract, you may be able to do so by executing an addendum or assignment of the contract. You should discuss any changes to the buyers and/or the type of ownership with your lender if you’ve already arranged for financing. Changing ownership once the purchase transaction has completed is a little more involved. In that case, you may not only have to consider the effect that change will have on your mortgage, but also the payment of additional legal and Land Title Office fees and potential property transfer taxes.
Patents
What is a Patent?
A patent is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. A patent provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years.
What kind of protection do patents offer?
Patent protection means an invention cannot be commercially made, used, distributed or sold without the patent owner’s consent. Patent rights are usually enforced in courts that, in most systems, hold the authority to stop patent infringement. Conversely, a court can also declare a patent invalid upon a successful challenge by a third party
What rights do patent owners have?
A patent owner has the right to decide who may – or may not – use the patented invention for the period during which it is protected. Patent owners may give permission to, or license, other parties to use their inventions on mutually agreed terms. Owners may also sell their invention rights to someone else, who then becomes the new owner of the patent. Once a patent expires, protection ends and the invention enters the public domain. This is also known as becoming off patent, meaning the owner no longer holds exclusive rights to the invention, and it becomes available for commercial exploitation by others.
How is a patent granted?
The first step in securing a patent is to file a patent application. The application generally contains the title of the invention, as well as an indication of its technical field. It must include the background and a description of the invention, in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention. Such descriptions are usually accompanied by visual materials – drawings, plans or diagrams – that describe the invention in greater detail. The application also contains various “claims”, that is, information to help determine the extent of protection to be granted by the patent.
Who grants patents?
Patents are granted by national patent offices or by regional offices that carry out examination work for a group of countries – for example, the European Patent Office (EPO) and the African Intellectual Property Organization (OAPI). Under such regional systems, an applicant requests protection for an invention in one or more countries, and each country decides whether to offer patent protection within its borders. The WIPO-administered Patent Cooperation Treaty (PCT) provides for the filing of a single international patent application that has the same effect as national applications filed in the designated countries. An applicant seeking protection may file one application and request protection in as many signatory states as needed.
Trusts & Wills
Question on Probate and Adminstration?
Contact Sherri Robinson at (604) 463-8890 or at srobinson@centralawyers.ca to discuss your issue
Trademarks
What is a Registrability Search?
It is our practice to perform a search of the Canadian Trademark Office’s database in order to ascertain the availability of your mark. In addition, it may be prudent to search unregistered trademarks such as trade names, which may have common-law rights. The cost of the search is often far less than the cost associated with changing the mark later if it is determined that there is a prior user. After determining that the goods and/or services you intend to provide in association with the proposed mark, we will perform the search, analyze the results and report to you.
Preparation and Filing of a Trademark Application
If the search does not reveal any marks that may have an effect on the registration of your mark, the next step is to file a trademark application. This stage involves the preparation of the application based on a consideration of the goods and services to be used in association of the mark. The application is submitted to the Trademarks Office along with the appropriate government filing fee.
Examination
Once a trademark application is filed it must be reviewed by a Trademark Office Examiner who typically issues one or more Office Actions (objections) to which we must respond. In Canada a first Office Action is typically issued 6 to 8 months after the initial filing date.
Approval
If and when the Examiner’s objections are dealt with, the application will be advertised in the Trademarks Journal, a weekly publication issued by the Trademarks Office listing new trademark applications. This allows any member of the public an opportunity to oppose or object to the application. In Canada the opposition period is two months from the date of publication.
Allowance
After advertisement without objections, a Notice of Allowance will be issued. The applicant will be required to submit the registration fee and, if the mark is based on prior, a Declaration of Use.
Renewal
Following satisfaction of the requirements for registration, including payment of the registration fee, the application becomes a “registered trademark” and is so recorded in the Trademark Office database. A trademark can be registered indefinitely, provided there is continued use of the mark, however, the registration must be renewed every fifteen years.
What is a Trademark?
A trademark is a word or design used by a business to distinguish its goods or services from those of competitors. There are two types of trademarks. Word marks are words, letters, numbers or combinations of them. Design marks are words written in a special style such as the Coca-Cola design, pure designs without words such as the Mercedes-Benz star, or a combination of words and designs.
How do I get a Trademark?
The first step is to choose a suitable word or design to identify the goods or services. Trademark rights to the word or design are acquired by applying to register the trademark or by commencing use of the trademark. Unlike corporate names, it is not possible to reserve a trademark. There is always some risk that someone else will claim prior rights to a trademark after an application is filed or after use has started.
Are there any Restrictions on Choosing a Trademark?
The Trademarks Office will not register a trademark which is confusing with a registered trademark or with a trademark in another application having priority. The application with the earliest date, either the filing date or the date of first use, has priority. Use of a trademark confusing with a registered mark may make the user liable for damages if legal action is taken for trademark infringement. In addition, if registration of a trademark is desired, it must not be clearly descriptive of the goods or services it identifies. An example of a clearly descriptive mark is SUPERWASH to identify woolen goods. On the other hand, trademarks may be registered if they are merely suggestive of the goods and services. An example is WATER WOOL for woolen goods. The assistance of an experienced trademark agent is usually needed to decide whether a mark is clearly descriptive or not. A trademark normally cannot be registered if it is nothing more than a surname. An example is JONES to identify wine. However ELDERS may be registered for wine because, while it is a surname, it has another meaning. Clearly descriptive trademarks or surnames may be registered after a period of extensive use. An example is the trademark MCDONALDS. There are other marks which cannot be registered, such as the name of the goods or services in any language, various flags, coats of arms and marks confusing with marks adopted by public authorities. A trademark agent should therefore be consulted before deciding on a mark.
What Makes Strong or Weak Trademarks?
The strength of a trademark is related to a factor called “distinctiveness”. A trademark is not very distinctive, and is therefore a weak one, if it is descriptive of the goods or services, a surname, initials or constitutes words commonly used in conjunction with the goods or services. Adopting unconventional spelling of words usually doesn’t help. Such marks make little impact on the mind of the consumer and therefore do not adequately direct him or her to goods or services of one person rather than competitors. However, such marks can become distinctive, and therefore valuable, by extensive use and advertising. The most distinctive type of trademark is an arbitrary word without meaning such as KODAK. Such trademarks become strongest after extensive usage. Use of such marks by others on any goods or services likely would be trademark infringement. However, many trademark owners do not like arbitrary or meaningless words because they initially create no favourable impression in the mind of the consumer. This may be very important from a marketing point of view, at least until a mark becomes well known. For this reason, the best compromise is usually a trademark which suggests some favourable characteristic of the product or service but does not clearly describe it.
How can a Business Avoid Adopting a Trademark which is Confusing with another Trademark?
The best way to try to avoid conflicts with earlier trademarks is to have a trademark search done. An experienced registered trademark agent can offer preliminary advice before doing the search. It may be advisable to have a few alternative trademarks ready. After the search is done, the agent gives an opinion as to whether or not the trademark appears to be available for registration. It may take considerable experience to decide whether a trademark is confusing with one found in the search, particularly if the marks are similar and their goods or services are also similar. Search results are not completely reliable though. There is some risk that conflicts with other marks will be found later. To start a search, the agent needs to know the trademark itself and the goods and/or services the mark identifies or will identify.
How is a Trademark Registered?
An application is filed by the Trademark Agent with the Canadian Trademarks Office. There are no provincial trademark registrations in Canada. People sometimes speak of registering their name in Victoria. This refers to trade names or business names and not to trademarks. Registration in Victoria confers no right to use the name as a trademark. Federal trademark laws take priority. After the application is filed, the Trademarks Office sends a filing notice which merely acknowledges receipt of the application and gives a filing date and an application number. A few months later, the application is reviewed by an Examiner at the Trademarks Office who conducts another search to see if there other confusing marks. If a confusing trademark is not found, and there are no other objections, such as descriptiveness or that the mark is a surname, then the trademark is approved for advertisement in the Trademarks Journal. If objections are made, then the Examiner sends an Examiner’s Report listing objections to registration. A period of time, usually six months, is given to respond. Often an experienced trademark agent can overcome objections by presenting arguments in favour of registration of the trademark. The Trademarks Journal is published by the Trademarks Office and lists trademarks which the Office proposes registering. Other parties then have the opportunity to oppose the registration of the published marks, usually on the grounds of prior use or registration of a similar trademark. If an opposition is filed, which occurs in only a small percentage of cases, the matter is decided by opposition proceedings. These are generally similar to a trial but are conducted mainly by written submissions and are much less expensive. If no opposition is filed, then the trademark application is allowed. If the trademark was already in use at the time the application was filed, then the only remaining step is paying the registration fee. If the trademark was not in use at the time the application was filed, then it is also necessary to file a declaration stating that use of the trademark has started.
When can a Trademark Application be filed?
An application may be filed either before or after use of a trademark starts. An application takes a minimum of one year to be approved and so trademark owners should file applications for proposed trademarks, or a few alternatives, a year or more before they plan on using the marks. Often such advanced planning is not possible, and the trademark owner then may have to change the mark if problems develop, particularly conflicts with other trademarks.
What does “use” of a Trademark Mean?
A trademark is used on goods when the mark appears on the goods, or packaging or labeling for the goods, and the goods are sold in the normal course of trade. A trademark is not used on goods when it appears in advertisements for the goods or if the sale of the goods is an isolated one or if they are distributed free. A trademark is used on services, for example restaurants, retail stores, construction contractors or musical bands, when the mark appears in advertisements or promotional material for the services and such services are actually available at that time.
How do you Protect a Trademark in Other Countries?
Generally a separate trademark application is required in each country where protection is desired. Canadian trademark owners should seriously consider registration of their trademarks in the United States. Otherwise, later expansion into the United States may be prohibited, or a change of trademark required, if the mark is later found to be unavailable there. If registration in the United States is essential or desirable, then it may be advisable to do a U.S. trademark search before a Canadian search. It is generally more difficult to find an available trademark in the United States. If the trademark appears to be available in the United States and Canada, then a Canadian application should be filed first. The United States application may be filed up to six months after the Canadian application and will get the filing date of the Canadian application. No use of the trademark in the United States is required to obtain registration if this procedure is followed. Applications in other foreign countries should also be filed within six months of filing the Canadian application. They also get the filing date of the Canadian application under the International Convention.
Commercial Agreements
What is a shareholders’ loan agreement?
A shareholders’ loan agreement records the arrangement between the shareholder and the company whereby the a shareholder in a company injects money into the company. This loan is repayable to the company, with interest, to the shareholder on the arranged terms. The shareholder could demand collateral that may take the form of a variety of assets, including a debenture or shares in the company.
What are agency, distribution and franchise agreements?
An agency agreement is a legal contract creating a fiduciary relationship whereby the principal agrees that the actions of the agent binds the principal to agreements made by the agent as if the principal had himself personally made these agreements. A distribution agreement is a contract between a supplier and a distributor whereby the parties agree that the distributor may sell (distribute) the products of the supplier on an exclusive (or non exclusive) basis. Example: where a hardware chain may sell a range of electric garden products to the public. A franchise agreement is a legal contract whereby a well established business (franchisor) consents to provide its brand, operational model and required support to a third party (franchisee) for them to set up and run a similar business in exchange for a fee and some share of the income generated (royalty).
What are business to business collaborations?
Business to business collaborations are agreements made by consenting businesses to share resources to accomplish a mutual goal.  Collaborative partnerships rely on participation by at least two parties who agree to share resources, such as finances, knowledge, and people.
What are purchase and supply agreements?
A purchase and supply agreement is an agreement between a supplier and a buyer for supply and purchase of products. The agreement specifies the terms upon which the parties agree to supply and purchase products from each other.
What are service agreements and maintenance contracts?
A service agreement, also known as a service level agreement, is an ​agreement between a ​company and a ​customer, ​regulating the company’s obligation to ​check and ​repair (maintain)​ equipment or deliver another service for an ​agreed ​price during a ​fixed ​period of ​time, at a specified level. Much the same as a service agreement, a maintenance contracts are agreements under which a service provider agrees to perform maintenance services to the benefit of a consumer., usually on equipment the provider sold to the customer, i.e. a stove or fridge.
What are commercial leasing or hire purchase agreements?
A commercial lease is an agreement between a landlord and a business (tenant) outlining the terms and conditions of property rental. A commercial lease is specific to tenants using the property for business or other commercial purposes; versus residential use. A hire purchase agreement is a contract whereby a person hires goods for a period of time by paying installments, and has the right to own the goods at the end of the agreement if all installments are paid. Hire purchase agreements usually last for a short to medium term, between two and five years.  
What are information technology and e-commerce related agreements?
An information technology agreement is a contract between parties of which the subject matter that is regulated, relates to information technology. This must not be confused with the Information Technology Agreement (ITA) which is an agreement concluded in the Ministerial Declaration on Trade in Information Technology Products in 1996, and entered into force 1 July 1997, and which is enforced by the World Trade Organization (WTO). An e-commerce agreement or e-commerce related contract is an agreement formed in the course of e-commerce by the interaction of two or more individuals using electronic means, such as e-mail, the interaction of an individual with an electronic agent, such as a computer program, or the interaction of at least two electronic agents that are programmed to recognize the existence of a contract. This interaction is regulated by the Uniform Electronic Commerce Act (Canada) which provides rules regarding the formation, governance, and basic terms of an e-contract. Traditional contract principles and remedies apply to e-contracts.
What are intellectual property licences and assignments?
An intellectual property licensing agreement is a partnership between an intellectual property rights owner (licensor) and another party who is authorized to use such rights (licensee) in exchange for an agreed payment (fee or royalty). An intellectual property assignment is an agreement whereby the owner of certain intellectual property rights (i.e. a trademark) transfers ownership of those rights to another person (assignee), where after the assignee becomes the owner (registered or otherwise) of the intellectual property rights.
What are marketing and sponsorship agreements?
A marketing agreement is a written contract between two or more parties which relates to the provision of marketing services by the one to the other. The specific marketing services are defined and regulated by the agreement. Most businesses entering into marketing agreements require a third party to market or promote their products or services to the consumer market. A sponsorship agreement regulates the terms whereby a business (sponsor) delivers a sponsorship is a cash and/or in-kind fee paid to the party being sponsored (sponsoree) (typically in sports, arts, entertainment or causes) in return for access to the exploitable commercial potential associated with the sponsoree.  The sponsorship is done with the expectation of a commercial return through increased awareness, brand building and propensity to purchase.
What is a consultancy agreement?
A consultancy agreement is a legal contract between a consultant and a client whereby the client buys the services of the consultant for a specific purpose over a specific period. This consultant is not an employee and delivers the service as an independent contractor.
What are confidentiality, non-disclosure and non-circumvention agreements?
A confidentiality agreement, sometimes referred to as a non-disclosure agreement (NDA), a confidential disclosure agreement, proprietary information agreement, or secrecy agreement, is a legal contract between at two parties that outlines confidential material, knowledge, or information that the parties will share with each other for certain purposes, but wish to restrict disclosure thereof to third parties. The parties agree not to disclose information thereby creating a confidential relationship between the parties to protect any type of confidential and proprietary information or trade secrets and non-public business information. A non-circumvention agreement is a contract whereby the parties, usually during the existence of a non-disclosure agreement relating to negotiations, agree not to enter into similar negotiations with third parties or to do anything that may circumvent the other party, thereby frustrating its right and negating the purpose of the negotiations.
What are releases and waivers of liability?
A waiver of liability is a legal document that a person who participates in an activity signs to acknowledge the risks involved in his or her participation in that activity and, by doing so, absolves the business or person providing that activity from legal liability. A release is a contractual agreement by which one individual assents to relinquish a claim or right under the law to another individual against whom such claim or right is enforceable. The right or claim given up in a release usually involves contracts or torts. A general release deals with all possible claims that are in existence or may arise between the parties, whereas a specific release is generally limited to specific and clearly describes claims.
What is a shareholders’ and partnership agreement?
A shareholders’ agreement is contract between the owners (shareholders) of a firm, defining their mutual obligations, privileges, protections, and rights. A partnership agreement is written agreement between two or more individuals who join as partners to form and carry on a for-profit business. It regulates the (a) nature of the business, (b) capital contributed by each partner, and (c) their rights and responsibilities. A partnership does not have a separate legal existence as is seen with an incorporated business, and the partners are jointly and severally liable for the debts of the firm. Even on withdrawing from the partnership, a partner may remain liable for the partnership’s debts.
Copyright
What are Copyright and Related Rights?
Copyright laws grant authors, artists, and other creators protection for their literary and artistic creations, generally referred to as “works”. A closely associated field is “related rights”, or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration. The beneficiaries of related rights are: (a) performers (such as actors and musicians) in their performances; (b) producers of phonograms (for example, compact discs) in their sound recordings; and (c) broadcasting organizations in their radio and television programs. Works covered by copyright include, but are not limited to: novels, poems, plays, reference works, newspapers, advertisements, computer programs, databases, films, musical compositions, choreography, paintings, drawings, photographs, sculpture, architecture, maps, and technical drawings.
What rights do copyright and related rights provide?
The creators of works protected by copyright, and their heirs and successors (generally referred to as “right holders”), have certain basic rights under copyright law. They hold the exclusive right to use or authorize others to use the work on agreed terms. The right holder(s) of a work can authorize or prohibit: its reproduction in all forms, including print form and sound recording; its public performance and communication to the public; its broadcasting; its translation into other languages; and its adaptation, such as from a novel to a screenplay for a film. Similar rights of, among others, fixation (recording) and reproduction are granted under related rights. Many types of works protected under the laws of copyright and related rights require mass distribution, communication and financial investment for their successful dissemination (for example, publications, sound recordings and films). Hence, creators often transfer these rights to companies better able to develop and market the works, in return for compensation in the form of payments and/or royalties (compensation based on a percentage of revenues generated by the work). The economic rights relating to copyright are of limited duration – as provided for in the relevant WIPO treaties – beginning with the creation and fixation of the work, and lasting for not less than 50 years after the creator’s death. National laws may establish longer terms of protection. This term of protection enables both creators and their heirs and successors to benefit financially for a reasonable period of time. Related rights enjoy shorter terms, normally 50 years after the performance, recording or broadcast has taken place. Copyright and the protection of performers also include moral rights, meaning the right to claim authorship of a work, and the right to oppose changes to the work that could harm the creator’s reputation. Rights provided for under copyright and related rights laws can be enforced by right holders through a variety of methods and fora, including civil action suits, administrative remedies and criminal prosecution. Injunctions, orders requiring destruction of infringing items, inspection orders, among others, are used to enforce these rights.
What are the benefits of protecting copyright and related rights?
Copyright and related rights protection is an essential component in fostering human creativity and innovation. Giving authors, artists, and creators incentives in the form of recognition and fair economic reward increases their activity and output and can also enhance the results. By ensuring the existence and enforceability of rights, individuals and companies can more easily invest in the creation, development and global dissemination of their works. This, in turn, helps to increase access to and enhance the enjoyment of culture, knowledge, and entertainment the world over, and also stimulates economic and social development.
How have copyright and related rights kept up with advances in technology?
The field of copyright and related rights has expanded enormously during the last several decades with the spectacular progress of technological development that has, in turn, yielded new ways of disseminating creations by such forms of communication as satellite broadcasting, compact discs, and DVDs. Widespread dissemination of works via the Internet raises difficult questions concerning copyright and related rights in this global medium. World Intellectual Property Organization (WIPO) is fully involved in the ongoing international debate to shape new standards for copyright protection in cyberspace. In that regard, the organization administers the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), known as the “Internet Treaties”. These treaties clarify international norms aimed at preventing unauthorized access to and use of creative works on the Internet.
How are copyright and related rights regulated?
Copyright and related rights protection is obtained automatically without the need for registration or other formalities. However, many countries provide for a national system of optional registration and deposit of works. These systems facilitate, for example, questions involving disputes over ownership or creation, financial transactions, sales, assignments, and transfer of rights. Many authors and performers do not have the ability or means to pursue the legal and administrative enforcement of their copyright and related rights, especially given the increasingly global use of literary, music, and performance rights. As a result, the establishment and enhancement of collective management organizations (CMOs), or “societies”, is a growing and necessary trend in many countries. These societies can provide their members with efficient administrative support and legal expertise in, for example, collecting, managing, and disbursing royalties gained from the national and international use of a work or performance. Certain rights of producers of sound recordings and broadcasting organizations are sometimes managed collectively as well.

Geographical Indications

What is a Geographical Indication?
A geographical indication is a sign used on goods that have a specific geographical origin and possess qualities or a reputation due to that place of origin. Most commonly, a geographical indication consists of the name of the place of origin of the goods. Agricultural products typically have qualities that derive from their place of production and are influenced by specific local geographical factors, such as climate and soil. Whether a sign functions as a geographical indication is a matter of national law and consumer perception. Geographical indications may be used for a wide variety of agricultural products, such as, for example, “Tuscany” for olive oil produced in a specific area of Italy, or “Roquefort” for cheese produced in that region of France. The use of geographical indications is not limited to agricultural products. They may also highlight specific qualities of a product that are due to human factors found in the product’s place of origin, such as specific manufacturing skills and traditions. The place of origin may be a village or town, a region or a country. An example of the latter is “Switzerland” or “Swiss”, perceived as a geographical indication in many countries for products made in Switzerland and, in particular, for watches.
What is an appellation of origin?
An appellation of origin is a special kind of geographical indication used on products that have a specific quality exclusively or essentially due to the geographical environment in which the products are produced. The term geographical indication encompasses appellations of origin. Examples of appellations of origin that are protected in states party to the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration are “Bordeaux” for wine produced in the Bordeaux region of France, “Prosciutto di Parma” – or Parma ham – for ham produced in the Parma province of Italy or “Habana” for tobacco grown in the Havana region of Cuba
Why do geographical indications need protection?
Geographical indications are understood by consumers to denote the origin and quality of products. Many of them have acquired valuable reputations which, if not adequately protected, may be misrepresented by commercial operators. False use of geographical indications by unauthorized parties, for example “Darjeeling” for tea that was not grown in the tea gardens of Darjeeling, is detrimental to consumers and legitimate producers. The former are deceived into believing they are buying a genuine product with specific qualities and characteristics, and the latter are deprived of valuable business and suffer damage to the established reputation of their products.
What is the difference between a geographical indication and a trademark?
A trademark is a sign used by a company to distinguish its goods and services from those produced by others. It gives its owner the right to prevent others from using the trademark. A geographical indication guarantees to consumers that a product was produced in a certain place and has certain characteristics that are due to that place of production. It may be used by all producers who make products that share certain qualities in the place designated by a geographical indication.
What is a “generic” geographical indication?
If the name of a place is used to designate a particular type of product, rather than to indicate its place of origin, the term no longer functions as a geographical indication. For example, “Dijon mustard”, a kind of mustard that originated many years ago in the French town of Dijon, has, over time, come to denote mustard of that kind made in many places. Hence, “Dijon mustard” is now a generic indication and refers to a type of product, rather than a place.
How are geographical indications protected?
Geographical indications are protected in accordance with national laws and under a wide range of concepts, such as laws against unfair competition, consumer protection laws, laws for the protection of certification marks or special laws for the protection of geographical indications or appellations of origin. In essence, unauthorized parties may not use geographical indications if such use is likely to mislead the public as to the true origin of the product. Applicable sanctions range from court injunctions preventing unauthorized use to the payment of damages and fines or, in serious cases, imprisonment.
Industrial Design
What is an Industrial Design ?
An industrial design refers to the ornamental or aesthetic aspects of an article. A design may consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or color. Industrial designs are applied to a wide variety of industrial products and handicrafts: from technical and medical instruments to watches, jewelry and other luxury items; from house wares and electrical appliances to vehicles and architectural structures; from textile designs to leisure goods. To be protected under most national laws, an industrial design must be new or original and non-functional. This means that an industrial design is primarily of an aesthetic nature, and any technical features of the article to which it is applied are not protected by the design registration. However, those features could be protected by a patent.
Why protect industrial designs?
Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability. When an industrial design is protected, the owner – the person or entity that has registered the design – is assured an exclusive right and protection against unauthorized copying or imitation of the design by third parties. This helps to ensure a fair return on investment. An effective system of protection also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity and promoting more aesthetically pleasing products. Protecting industrial designs helps to promote economic development by encouraging creativity in the industrial and manufacturing sectors, as well as in traditional arts and crafts. Designs contribute to the expansion of commercial activity and the export of national products. Industrial designs can be relatively simple and inexpensive to develop and protect. They are reasonably accessible to small and medium-sized enterprises as well as to individual artists and craftsmakers, in both developed and developing countries.
How extensive is industrial design protection?
Generally, industrial design protection is limited to the country in which protection is granted. The Hague Agreement Concerning the International Registration of Industrial Designs, a WIPO administered treaty, offers a procedure for international registration of designs. Applicants can file a single international application either with WIPO or the national or regional office of a country party to the treaty. The design will then be protected in as many member countries of the treaty as the applicant designates.
Strata
Strata - Approval by Vote
Which matters require a majority vote?
– adopting an operating budget (s. 103).
Which matters require a 3/4 vote?
Strata Disputes
  • amending bylaws (s. 126);
  • authorizing extraordinary expenditures (ss. 96 and 97);
  • authorizing a special levy (s. 108);
  • authorizing a significant change in the use or appearance of common property, and granting or revoking limited common property designations (ss. 71, 74, and 75);
  • acquisition and disposal of property (ss. 78 to 82);
  • authorizing litigation (ss. 171 and 172);
  • creating or cancelling sections (s. 193);
  • amalgamating strata corporations (s. 269) (not applicable to a section)
Which matters require a unanimous vote?
  • allocating expenditures other than prescribed by s.99 (unit entitlement) (s. 100)
  • amending the strata plan (ss. 257, 259, 262, 263, 265, and 266)
  • cancelling the strata plan (ss. 272, 276, and 284)
Strata - Voting at General Meetings
What is a general meeting?
An annual meeting is the forum where owners formally gather with the object of voting on resolutions before the meeting. General meetings can be annual general meetings (AGM) or special general meeting (SGM).
Who may vote at a general meeting?
All owners who are eligible voters may vote at a general meeting
When is an owner an non-eligible voter?
Persons not included in s. 54 of the Act, and all owners who are prohibted from voting because the strata corporation is entitled to register a lien against the Owner’s Strata Lot (and the strata has a bylaw pursuant to s. 53(2)).
For the purposes of voting at a general meeting; When is the Strata Corporation entitled to register a lien against the Strata Lot?

When the following is in place:

  • The Strata Corporation has a bylaw in place pursuant to s. 53(2) of the SPA, which section stipulates that the strata may make a bylaw that prohibits an owner from voting at a general meeting;
  • The Owner is in arrears with s. 116 fees;
  • a s. 112(2) notice has been given; and
  • 14 days (plus 5) have elapsed from the date of the notice.
What are s. 116 fees?
  • strata fees;
  • a special levy;
  • a reimbursement of the cost of work referred to in section 85;
  • the strata lot’s share of a judgment against the strata corporation [s. 116(1)]
  • or interest thereon.
My strata fees are up to date, but I owe fines; may I vote at a general meeting?
Yes. Fines are not lienable in terms of s. 116 of the SPA.
May owners who are not eligible voters vote when an unanimous vote is required?
Yes. [s. 53(2)]
My strata lot is lienable but I made a payment arrangement; may I vote at the general meeting?
Yes. [s. 116(3)(b)]
My strata lot is lienable but I made a payment arrangement, but I defaulted on the arrangement; may I vote at the general meeting?
No. The default will not be acceptable to the strata corporation [s. 116(3)(b)]
Strata - AGM's
Who decides what is placed on the AGM agenda and what not?
Section 46(1) is clear. The strata council determines the agenda of the AGM. This includes the resolutions to be voted on.
May an Owner propose a resolution to be voted on at the SGM?
Yes, the Owner may make this proposal to the Strata Council in writing. Usually, if the matter is of sufficient importance, the Strata Council will prepare the resolution and include it in the AGM notice. However, as the Strata Council determines the agenda of an AGM, Council may decide not to include the resolution.
The strata council does not want to include my resolution in the AGM agenda. What now?
Section 46(2) states that persons holding at least 20% pf the strata corporation’s votes (20% of all owners) may by written demand propose a resolution, which resolution must be on the agenda of the next AGM.
If the strata council still refuses to add the resolution to the AGM agenda, what can I do?
Firstly, section 43(6) does not apply. So, the owners cannot give notice and hold their own meeting to vote on the resolution. To do this, the owners must give notice in terms of section 43(1). Secondly, the strata council will be in breach of the Strata Property Act. You can use any of the available dispute resolution methods, i.e. sue the strata corporation in terms of section 163, make application to remedy an unfair act in terms of section 164, ask the court to instruct the strata corporation to perform its duties and stop contravening the Act and the Bylaws, give notice of arbitration in terms of section 177, or commence action through the Civil Litigation Tribunal.
Can an Owner propose a resolution at the AGM?
No, strata council determines the agenda and then includes the resolutions in the AGM notice. Resolutions not included in the notice have not come to the attention of the owners and owners not attending the meeting may be disadvantage as they do not have the opportunity to consider and vote on the resolution. It is not an argument that they should have been at the AGM; they may well have attended if they had notice of the specific resolution. New business dealt with under bylaw 28(l) of the Standard Bylaws is new business placed on the AGM agenda by the council.
Can an Owner bring up a matter to discuss at the AGM?
If the matter is not on the agenda, this should not be allowed. If the meeting decides that it is important enough to discuss, the AGM chairman should finish the meeting and allow discussion thereafter. This is conducive to dealing with the AGM matter timeously and allow the Owners to discuss the matter in the presence of the newly elected council, who will then be in a position to deal with the matter.
Strata - Dealing with Smoking
Can a strata corporation adopt a non-smoking bylaw?
Yes. It is legal for a strata corporation to adopt a non-smoking bylaw that bans smoking on common property, limited common property, and in strata lots. While there are many variations of bylaws that Strata Corporations can choose, for the purposes of this section, “Smoking Prohibition Bylaw” will refer to a bylaw that bans smoking in strata lots, on the interior common property (but not necessarily exterior common property), and on patios and balconies. Non-smoking bylaws may be adopted by the owner/developer prior to the sale of any strata lots or by the owners by a ¾ vote resolution. Bylaws registered by the owner/developer prior to selling strata lots have the added advantage that all owners had notice before purchasing. Restrictions and prohibitions should be reasonably connected to the purpose of protecting the health and/or comfort of non-smokers. Further, bylaws must comply with all legislation to be enforceable, including the Strata Property Act, the Residential Tenancy Act, and the Human Rights Code. Once passed by the owners, bylaw amendments must be filed in the Land Title Office in order to be enforceable
Does a non-smoking bylaw apply to residents who reside in the complex at the time the bylaw is passed?

Yes. Strata corporations are able to amend their bylaws from time to time, and those amendments generally apply to all residents in the complex (unless a ‘grandfather’ clause is included). While section 123 of the Strata Property Act recognizes pre-existing rights in relation to pet and age bylaws, it does not deal with pre-existing rights for a behaviour such as smoking. We are not aware of any case law to support the premise that an owner who purchases a strata lot is not subject to a bylaw that governs behaviour after the purchase. Otherwise, bylaws governing behaviour would only apply to those individuals that take up residence after the bylaw is passed, which would create a situation where not all residents would be treated the same

Would the adoption of a non-smoking bylaw apply to existing tenants who have already signed a rental agreement with the owner?
This is more complex, as there may be a conflict between the Residential Tenancy Act and the Strata Property Act. Section 14 of the Residential Tenancy Act requires all changes to a rental agreement (except those expressly excluded), be consented to by both parties. Yet the Strata Property Act does not support tenants being exempted from bylaws. It can be argued that an owner transfers only those rights to a tenant that he or she has – so if an owner cannot smoke in a strata lot, neither can the tenant. It is recommended that legal advice be sought before enforcing a Smoking Prohibition Bylaw against a tenant who resided in the complex prior to the Smoking Prohibition Bylaw being passed and registered. However, it should be noted that if the smoke from a rental unit is causing a nuisance to other residents in the complex, or another resident has a particular sensitivity to the smoke that is considered a disability under the Human Rights Code, the strata corporation could take steps to address these complaints (see Addressing Complaints of Second-Hand Smoke section).
Do provincial or municipal governments have smoke-free laws that apply to strata corporations?
Yes. Effective March 31, 2008, pursuant to the newly amended Tobacco Control Act, BC now has province-wide legislation that protects people from second-hand smoke in multi-unit dwellings, including strata corporations, by banning smoking: • In common areas of apartment buildings, condominiums and dormitories, including elevators, hallways, parking garages, party or entertainment rooms, laundry facilities, lobbies; and • Within 3 meters (buffer zones) of public entrance ways to buildings, open windows and air intakes. Smoking in these areas would be a breach of section 3(1)(d) of the Schedule of Standard Bylaws from the Strata Property Act, which provides that an owner, tenant, occupant or visitor must not use a strata lot, the common property or common assets in a way that is illegal. Municipalities have the authority to pass non-smoking bylaws that exceed the new provincial smoke-free Regulations, including bylaws that regulate smoking within multi-unit dwellings. Municipalities such as the City of Vancouver, Surrey, Richmond and the Capital Regional District have passed bylaws with stricter buffer zone requirements than the province.
Do strata corporations have to make reasonable accommodation for owners with a disability caused or exacerbated by second-hand smoke?
A demonstrated allergy or environmental sensitivity to second-hand smoke could garner the protection of the Human Rights Code and require a strata corporation to take steps to accommodate the disability. This may include enforcing the bylaws that the strata corporation already has, or creating new bylaws that deal with the situation. It has been established that a strata corporation’s provision of management services comes under the purview of Section 8 of the Human Rights Code. While the Human Rights Code does not define either mental or physical disability, a wide range of physical and mental conditions has been granted disability status under the Human Rights Code. Traditionally, Courts, Tribunals and Arbitrators have given a broad and liberal interpretation of “disability.” To establish that a strata corporation has discriminated against an owner with respect to an accommodation, service or facility on the basis of a disability, a complainant would need to establish both that he/she had a disability and that the strata corporation knew about the disability. In one case, Konieczna v. The Owners, Strata Plan NW2489, 2003, BCHRT 38, the complainant alleged discrimination because of a bylaw that prevented the installation of flooring other than wall-to-wall carpeting. The complainant alleged this was discrimination on the basis of a physical disability as she was asthmatic and carpeting aggravated her condition. The Tribunal concluded that the complainant’s condition was indeed a physical disability, that the strata was aware of the disability, and that she was entitled to protection under the Human Rights Code. Once a complainant establishes disability discrimination, the onus is shifted to the strata corporation to prove, on a balance of probabilities, that it had a reasonable justification for the discrimination. In this case, the strata did not raise the defense of justification, and the Tribunal ordered that the strata allow the complainant to install hardwood flooring and pay compensatory costs of $3500 for injury to her dignity, feelings and self-respect. A Smoking Prohibition Bylaw can be supported by the Human Rights Code where the layout of the complex would require a strata corporation to ban smoking in order to accommodate a resident with a physical disability, such as asthma, allergies or some other disability exacerbated by smoke. For example, while it might be impossible to stop smoke travelling from one strata lot into another in a heritage house, it would be more difficult to justify a Smoking Prohibition Bylaw in a bare land strata corporation where a strata lot is comprised of a plot of land
Is addiction to nicotine a disability? If so, do Strata Corporations have to make accommodations for smokers when adopting a non-smoking bylaw?
The Charter of Rights and Freedoms does not recognize addiction to nicotine as a disability, and there is legislative support to enact and enforce Smoking Prohibition Bylaws. However, there is also case law to challenge them, and this case law should be considered when drafting such a bylaw. This section is not exhaustive, and only deals with section 8 of the Human Rights Code (discrimination in accommodation, service and facility). It is recommended that the legal opinion be reviewed in its entirety for a complete analysis of the challenges. Courts, Tribunals and Arbitrators have adopted a broad approach to what constitutes a physical disability under the Human Rights Code. It was broadened even further with respect to nicotine-addicted individuals following a Labour Relations Board case in BC between Cominco smelter operator and its union in 2000. At issue in Cominco was a smoking policy that banned the use and possession of tobacco on company property, and didn’t allow sufficient time for staff to leave the property on breaks to smoke. The Union argued that nicotine addiction constituted a disability under the Human Rights Code. They contended the policy discriminated against smokers because if they could not control their addiction, they would lose their jobs. The Union argued that addicted smokers must be accommodated in ways that would permit them to continue to work, and permit them to smoke in an outside area, while taking steps to ensure that the smoke didn’t contaminate the environment of others. The Arbitrator acknowledged that the Courts have not found nicotine addiction to be a disability as a ground for protection under the Charter, but he held it was within the meaning of physical disability under the Human Rights Code. The Arbitrator determined that there was no inherent right to smoke, but referred the matter back to the parties for further discussion on accommodating the heavily addicted smokers up to the point of undue hardship. Cominco’s smoking ban remains in effect today. It should be noted that the Arbitrator recognized that the increase in public smoking policies was meant to protect others from the harmful effects of second-hand smoke. Further, the trend toward establishing smoking policies is consistent with the position that while smoking is a legal activity, it should not be carried out in places where the smoke might harm others. Regarding Smoking Prohibition Bylaws in strata complexes, smoking should only be banned in areas where non-smokers are put at risk, and this means that each strata council needs to examine what provisions will offer appropriate protection based on the layout of the complex and the residents. A Smoking Prohibition Bylaw can include provisions that allow for accommodation of residents who are addicted to nicotine. Depending on the situation, accommodation can take a variety of forms, such as providing a covered area outdoors where smoking would be allowed
If a strata corporation adopts a non-smoking bylaw, how can it be enforced?
1) Internal Remedies: Assuming that the adoption of the Smoking Prohibition Bylaw has satisfied the procedural requirements under the Strata Property Act and is properly registered in the Land Title Office, there are several enforcement options available, including imposing a fine or restitution costs. Prior to obtaining a remedy for non-compliance of the non-smoking bylaw however, the strata corporation must first follow mandatory bylaw enforcement procedures in accordance with section 135 of the Strata Property Act. The procedures include providing the owner with notice of the complaint received, the particulars of the complaint in writing and a reasonable opportunity to answer each complaint, including the offer of a hearing before the strata council. Judges always have the discretion to forgive fines charged by a strata corporation for breach of a bylaw, and generally seem inclined to do so if the procedures set out under section 135 have not been properly followed. If the bylaw infraction involves a tenant, councils need to be aware of additional procedural requirements under section 135. Further, if a tenant continues to breach a Smoking Prohibition Bylaw, the strata council or the owner can, as a last resort, give the tenant notice terminating the tenancy agreement under section 47 of the Residential Tenancy Act. 2) Court-ordered remedy In addition to internal remedies, a strata corporation can also seek a Court ordered remedy. The strata corporation can petition the Supreme Court of British Columbia for an order that an owner, tenant, occupant or visitor must comply with the bylaws of the strata corporation. Based on case law, it could be argued that an owner who is ordered by a Judge to comply with a Smoking Prohibition Bylaw and fails to do so, could be subject to an order to vacate his or her strata lot
If a strata corporation does NOT have a non-smoking bylaw, how can complaints of second-hand smoke be addressed?
There are many different legal avenues for strata corporations and individual owners to address unwanted second-hand smoke in a strata complex, including the following: 1) Common Law of Nuisance Strata corporations and all residents of strata corporations in BC are protected by the common law action of ‘nuisance’. If an individual is bothered by smoke in a strata complex, both the strata corporation and the individual in the complex can apply to Court for injunctive relief that the individual who is causing the problem cease doing so. As explained below, where the nuisance complaint involves people living in a strata complex, the Courts have recognized additional factors to consider in cases of nuisance. In this type of communal living arrangement, the residents are required to exhibit more cooperation and respect for others to ensure that each resident is able to enjoy their property to the fullest extent. Even if a strata corporation does not have a Smoking Prohibition Bylaw, smoking that is a nuisance can be addressed as a breach of the bylaws. 2) Breach of the Schedule of Standard Bylaws Pursuant to the Schedule of Standard Bylaws in the Strata Property Act, virtually all strata corporations in BC prohibit in their bylaws behavior that creates a nuisance or hazard to another person, or that unreasonably interferes with the rights of other persons to use and enjoy the common property, common assets or another strata lot. This can include smoking, regardless of whether there is a Smoking Prohibition Bylaw in place. Strata corporations need to be willing to enforce these bylaws by dealing appropriately with complaints of second-hand smoke, including following the bylaw enforcement procedure and applying for relief in Court if necessary. Failure to enforce the nuisance section of the bylaws may result in an owner bothered by smoke taking the position that the strata corporation has a statutory duty to enforce its bylaws and that the failure to enforce the bylaw is significantly unfair to him or her. As a result, the non-smoker could seek an order of the Supreme Court of British Columbia that the strata corporation enforce its bylaws. Section 26 of the Strata Property Act supports the concept that a strata council has a positive duty to enforce the strata corporation’s bylaws. It is recommended that legal advice be obtained before enforcing a nuisance bylaw. 3) Tobacco Control Act – See BC Laws section 4) Human Rights Code – See BC Laws section
Strata - Tenants
What are the tenant’s rights under the Act?

All tenants have the following rights under the Act:

  • to obtain a copy of the strata’s bylaws and rules and a Notice of Tenant’s Responsibilities (Form K) from the landlord;
  • to inspect and obtain copies of the bylaws and rules from the strata corporation at no charge;
  • to request that the strata council grant them short term exclusive use of common property;
  • to the same access to any dispute resolution methods as an owner;
What are the tenant’s rights under the bylaws?

All tenants have the following rights under the standard bylaws:

  • to attend annual and special general meetings, unless a majority vote is passed to exclude them from the meeting; and
  • to participate in discussions at annual and special general meetings if permitted by the chair.
Long term tenants

Long term tenants are residential tenants with leases of three years or longer. With some exceptions, long term tenants have the same rights and obligations as landlords under the act, regulations, bylaws and rules for the duration of the lease. Before exercising any rights of the landlord, long term tenants must provide the strata corporation with written notice of the term of the lease and their name. This is most effectively achieved by supplying a copy of the lease to the strata council/ Long term tenants may not take any action that will affect the owner’s interest in the strata lot, common property or land that is a common asset. Long term tenants must pay strata fees, pay special levies that are due within the term of the lease; and maintain and repair parts of the strata lot and limited common property that the bylaws make the owner responsible for. Long term tenants have the right to access and obtain strata corporation records, attend and vote at general meetings, receive strata corporation notices; and to be eligible for election to the strata council.

May landlords assign their rights and obligations to tenants?

Yes, provided that they give written notice of the assignment to the strata corporation stating what rights and obligations are assigned to the tenant; the name of the tenant; and the time period that the assignment is effective.

What are the exceptions to the landlord’s right to assign its rights and obligations to a tenant?

The owner’s (landlord) responsibility to pay the cost of remedying contraventions or fines on behalf of the tenant cannot be assigned to the tenant.

Strata - Illegal Substances
Can marihuana be grown in a strata unit?

If the Owner has a valid license, yes!

However… Under the new marihuana regulations in force as of June 19, 2013, Health Canada will phase out all marihuana production in residential areas, including residential strata lots. The intent is to phase out private producers and to make medical marihuana available to users through reputable, licensed and controlled producers. Production will take place in secure and highly regulated commercial facilities by licensed professionals. Under the current scheme, there are no specific Health Canada policies dealing directly with medical marihuana being grown in a strata lot. Therefore, it is possible that an owner who lives in a strata lot may have been issued a valid production licence.

What can be done with illegal marihuana growers?

Growing marihuana illegally is against the law. Call the RCMP and have them deal with it.

Strata - Hardship Applications
What is a rental restriction?
Strata corporations may by bylaw regulate how many strata lots, if any at all, may be leased. This is called a rental restriction and the bylaw is called a rental restriction bylaw.
What is a hardship application?
When an owner wants to lease his unit, but a rental restriction prohibits it, the owner can only lease that unit when the rental restriction will cause hardship to the owner. Section 144(1) of the Act states that an owner may apply for an exemption from a rental restriction bylaw on the basis that it causes hardship. This exemption is usually granted for a limited period, usually 1 year.
How will a hardship application will be decided?
The strata corporation may not unreasonably refuse to grant an exemption [s.144(6)]. Some factors that Court has found relevant for consideration by Strata Corporation include (Als v The Owners, Strata Corporation NW 1067, 2002 BCSC 134): – inability to re-sell the unit/decrease in sale value from purchase price; – inability to obtain insurance because a unit is not occupied; – potential prohibitive cost of property management; – substantial decrease in sale value where a new ban on rentals is put in place; – value of the unit making up all or substantially all of an owner’s assets.
How do I apply for hardship?
The owner must apply in writing to the strata corporation stating (i) the reason the exemption should be made, and (ii) whether the owner requires a hearing.
What must my hardship application contain?
Your application must be in writing and can be a letter, addressed to the strata council, setting out the circumstances of the hardship. Although not required by the act you should supply statements, figures, calculations, etc. as proof of hardship. (Note that Council can only make an informed decision if they have all the facts. The strata council cannot make a decision if you only say that you are experiencing hardship).
How long must I wait?
If the owner does not request a hearing, the strata council has 2 weeks after the date that the application is received to give a written reply. If the owner does request a hearing, then the strata council must hold a hearing where the owner or his representative can speak to the application within 4 weeks after the date of the application. A decision must then be provided to the owner within 1 week after the hearing is held.
What if my hardship application is denied?
The act does not require a strata council to review their decision. An owner may apply to the supreme court to have the decision overturned if the consent was unreasonably withheld. Remember that this is an expensive and technical process; obtain legal advice before you attempt this.
Strata - Disputes
In what court with the strata sue?

In the Supreme Court

  • Matters relating to the interpretation of the Act;
  • Matters relating to the duties and obligations of various parties in a strata development;
  • Collection of arrears strata fees and interest thereon, special levies and interest thereon (s. 116); and reasonable legal fees (s. 118)
  • Filing an Arbitrator’s decision where the award is over $25,000.
  • Order for eviction. injunction or other relief against an owner or tenant.
In the Small Claims Court
  • Where the amount claimed is less than $25,000;
  • Filing an Arbitrator’s decision where the award is over $25,000 for:
    • debt or damages;
    • recovery of personal property;
    • specific performance of an agreement relating to personal property or services;
    • relief from opposing claims to personal property.
On behalf of who may the strata corporation sue?
The strata corporation may sue:
  • As representative of all the strata lot owners;
  • On behalf of one or more owners about matters affecting their strata lots;
  • The strata corporation may sue an Owner
Who may sue the strata corporation?
The Strata Corporation may be sued:
  • As a representative of the owners with respect wot matters relating to common property, common assets, bylaws or rules, and an act or omission of the strata corporation;
  • By the owner of a strata lot;
  • By any third party with a valid claim.
What can an owner or tenant do to remedy or prevent an unfair action by the strata corporation?
Section 164 of the Act is used to remedy significantly unfair acts. The owner or tenant may apply to the Supreme court for an order preventing or remedying a significantly unfair act in relation to:
  • Action or threatened action of the strata corporation;
  • Decision of the strata corporation or strata council;
  • Exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at a general meeting.
The court may direct or prohibit an act of the strata corporation or council, vary a transaction or resolution, or regulate the conduct of the strata corporation’s future affairs; and may make any other order it considers necessary,
What can an owner or tenant do when the strata council acts outside of is authority?
The Owner or Tenant can apply to the Supreme court for an order that the strata corporation
  • per its duty under the Act, Regulations Bylaws and Rules; or
  • stop contravening the Act, Regulations Bylaws and Rules
(section 165 of the Act)
How do I serve notice on the strata corporation?
The strata corporation can only be served by:
  • Personally serving a strata council member; or
  • Sending the notice by registered mail to the strata corporation at its most recent mailing address on file at the land title office (LTO)
What authorization does the strata corporation need to sue?
The strata corporation must be authorized by a resolution approved by a ¾ vote of the owners at a general meeting before it can proceed with any legal action or arbitration. An owner who is being sued, cannot vote on this resolution. The strata corporation does not require authorization if it is initiating or continuing legal proceedings to collect areas strata fees. The strata corporation must be authorized by a resolution approved by a ¾ vote of the owners at a general meeting before it can proceed with legal action in the Small Claims Court, except if there is a bylaw in place that dispenses with this requirement. This action is typically required to collect fines and contributions to insurance deductibles.
Who pays the cost of a law suit?
When an owner is sued for areas strata fees or legal fees (s. 116) the owner will be liable for the reasonable legal costs (s. 118). When a strata corporation is required to pay legal costs, the strata lot owners (except the one who is being sued) must contribute to the costs in proportion to their unit entitlement.
Strata - Proxy's
What does a Proxy authorize the Proxy holder to do?
A proxy authorized the proxy holder to vote on the resolutions contained in the notice of the meeting for which he holds the proxy. This is usually to vote yes, no, or to abstain. As the Owner could not know of the content of any discussions and resolutions not contained in the notice, it cannot instruct the proxy holder ahead of time and the proxy holder is not authorized to vote on those resolutions (except of course if he obtains instruction on how to vote)
May a proxy holder take part in the discussions at the meeting?
In general a proxy holder may take part in the discussions if he is authorized to vote on the resolution under discussion. However, it would not be proper for the proxy holder to take part in the discussion if he has no knowledge of the matter under discussion or if he is not authorized to do so.
May a proxy holder nominate the owner who gave him the proxy for election to strata council?
Yes, but only if the proxy holder specifically authorized the nomination in the proxy document and indicated that he/she excepts the nomination and, if elected, he/she will accept the appointment.
Strata - Developers
Why must I hold back 7% when I buy a strata unit from an owner developer?
Section 88(2) of the Strata Property Act, read with Regulation 5.2, requires the purchaser of a strata lot from a owner developer must retain 7% of the gross purchase price, for a period of 55 days after the strata lot has been conveyed. This is to allow contractors who have not been paid to file a lien. If no-one does, the holdback is paid to the owner developer.
Business Purchase & Sale
Business Purchase & Sale
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
Do I buy shares or the business assets?
This question must always be considered, and a decision should be made after consultation with your lawyer and accountant. There is an adage that states that purchasers’ prefer to buy assets and vendors’ prefer to sell shares. To see how this applies to your transaction, speak to our commercial lawyers.
When should I get independent legal advice?
Independent Legal Advice must be obtained as early as possible, even before any formal legal steps are started.
Business Purchase & Sale - Letter of Intent
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
Why should there be a Letter of Intent?
At a certain stage the purchaser and vendor want to start formalizing the terms of the agreement. Usually, all of the terms of the agreement are not known up front, but the parties want something on paper. This usually happens by the parties agreeing to the material terms of the transaction and the purchaser delivering a letter of intent to the vendor.
When should I get independent legal advice?
Independent Legal Advice must be obtained as early as possible, even before any formal legal steps are started.
What does a Letter of Intent regulate?
The Letter of Intent deals with the following:
  • Purchase Price and how it is going to be paid
  • What is being purchased
  • What will happen form the offer, to the signing of the Letter of Intent, to the Date of Closing, and thereafter
  • Arrangements in relation to the take-over of the business, i.e. employees, equipment, inventory, etc.
  • The closing date
What other names are used for this kind of arrangement?
  • Agreement in Principal
  • Preliminary Deal
Is a letter of intent binding?
No, a Letter of Intent is not binding. It simply states the intent of the parties and supplies a guideline for the lawyer to prepare the Purchase Agreement.
If one party backs out of the deal, what can the other do?
Realistically, nothing. The Letter of Intent, although it it creates a moral obligation, creates no legal obligation.
What happens if there is no Letter of Intent?
A transaction can of course proceed without a Letter of Intent. The terms of the agreement between the parties are usually reflected directly in the Purchase Agreement. This practice does however lead to changes being made to the Purchase Agreement than would normally have been negotiated and agreed at the Letter of Intent stage.
Why does having a Letter of Intent save the parties’ money?
The parties can prepare a Letter of Intent themselves or get the assistance or guidance of a lawyer. Time and money is spent in negotiations and making changes to the transaction on an ongoing basis. There is a cost saving when this is done before lawyers get involved as  making changes to the Purchase Agreement as part of negotiations can become costly.
Business Purchase & Sale - Purchase Agreements
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
What does the Purchase Agreement do?
The Purchase Agreement documents the final terms of the agreement between the seller (vendor) and the buyer (purchaser). After signature by both parties, it is binding and the terms thereof can only be changed by written agreement of the parties.
When should I get independent legal advice?
Independent Legal Advice must be obtained as early as possible, even before any formal legal steps are started.
What does a Purchase Agreement regulate?
The Purchase Agreement usually deals with the following:
  • Specific definitions and terms associated with the transaction
  • The parties
  • The purchase price and payment terms
  • Whether it is a share or asset purchase agreement
  • Deposits, hold-backs and right of set-off
  • Escrow arrangements
  • Vendor and purchaser representations and warranties
  • Vendor and Purchaser covenants
  • Vendor’s and purchaser’s conditions of closing
  • Closing date, time and place
  • Closing documents required from both parties
  • Non-dompetition and restrictive covenant arrangements
  • Any further terms applicable to the transaction
Is a Purchase Agreement binding?
Yes, it is.
If one party backs out of the deal, what can the other do?
When there is a Purchase Agreement in place, it is binding on the parties. When one party backs out, there are usually terms that allow the other party to enforce their rights. The agreement usually contains the remedies of the aggrieved party (contractual remedies) or they can rely on the common law or the law of equity. Whatever the case may be, the agreement is in writing and the terms thereof are fixed.
What happens if there is no Purchase Agreement?
If there is no Purchase Agreement, there is no written record of the agreement between the parties. This does not mean the oral agreement is not binding or enforceable, but the exact terms thereof will be very difficult to prove. A Purchase Agreement is essential when purchasing or selling a business.
Business Purchase & Sale - Closing
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
What happens on the Closing Date?
By the day of closing, the purchaser’s solicitor will have informed the vendor’s solicitor that the funds are available, the parties will have exchanged the closing documents, and all the parties will be ready to close. On the Closing Date, the lawyers will agree that the transaction has closed, the funds will be requested (if a lender is involved) and paid over, and any other undertakings will be honoured. When everything is done, the vendor and purchaser will be informed that the transaction is finalized and the purchaser will take control of the business.
Why is the landlord involved?
If the business is in a premises, the property is either owned by the vendor or it is leased. If it is leased, there will be a landlord and the lease will have to be either assigned or renewed. Either way, the landlord will have to be informed of the transaction and will be involved. Not informing the landlord can have dire consequences, even cancellation and eviction of the purchaser.
When is a lender involved?
A lender is involved when the purchase price, or a portion thereof, is being financed. The lender will have its own requirements and documents and will be represented by a lawyer. During the closing process, the lender confirms that the funds are available. On the closing date, the lender supplies the funds to the purchaser’s solicitor, who pays it over to the vendor’s solicitor.
When should I get independent legal advice?
Independent Legal Advice must be obtained as early as possible, even before any formal legal steps are started.
Why are closing documents important?
Closing documents give effect to the instructions of the parties in the purchase agreement. Not all the terms of the agreement are final at the time when the purchase agreement is signed; closing documents ensure that the agreed terms are in place and adhered to at the time of closing.
What happens if the transaction does not close?
If a transaction does not close, the money in trust is returned to the purchaser. The parties’ rights are based on the purchase agreement, and if they want to pursue their remedies, they will rely on the purchase agreement.
Will I be bound by the Closing Documents?
Closing documents are signed in anticipation of the closing and supplied to the other party on the undertaking not to use the documents, or to supply it to the client, if the transaction does not close. If the transaction does not close, the documents are returned. The parties are not bound by the closing documents and the parties will have to rely on the purchase agreement.
Administrative Law
Questions about Administrative Law?
Contact Marcela Shockey at (604) 463-8890 or at mshockey@centralawyers.ca to discuss your issue.
Franchising
What is Independent Legal Advice and why is it important?
Independent Legal Advice (“ILA”) refers to legal advice given by a lawyer who is not involved in the transaction with the client. ILA is usually required by lenders and other sophisticated parties who want to ensure that their clients are fully informed of the content and consequences of a transaction. ILA should be obtained by any person who is self represented and who is involved in a transaction where all, or some, of the parties are represented by the same lawyer.
When should I get independent legal advice?
Independent Legal Advice must be obtained as early as possible, even before any formal legal steps are started.
I want to buy a franchise. What should I look out for?
The first thing to do is to obtain as much information about the franchisor and the franchise opportunity as possible. Franchisors must disclose in most provinces and provide disclosure documents for information purposes in the remaining provinces. Obtain this disclosure document from the franchisor. When you are in possession of all the information, which should include a franchise agreement, see your lawyer and have your accountant verify the franchisor’s figures and calculations. Make a decision only when you have been advised by your professional team, and do not pay the franchisor any money until you are 100% satisfied that the opportunity is a good fit for what you want to do. The golden rule when buying a franchise is: If you are not 100% at ease with the franchisor and the franchise opportunity; walk away.  
I want to franchise my business. Where do I start?
The first step to take when you want to franchise your business is to discuss it with your lawyer and accountant. As part of this discussion, the following should be covered:
  • Whether your business is franchisable?
  • Is the business of the franchisor viable and feasible?
  • Intellectual property right
  • Structuring of the franchisor’s business
  • Risk management
  • Expansion of the business and roll-out models
  • Recruitment and Selection process and manual
  • Compliance with franchise acts
  • Pre-opening processes, including training, and manual
  • Day to day operations and Daily Operations Manual
  • Legal and other documents required
  • Franchise disclosure requirements and documents
This is not a comprehensive list but a guideline. Speak to our franchise lawyer to obtain more details.
Construction Law
What is a builders’ lien?
A builder’s lien is a charge registered against the title of the owner’s property, which charge acts as security for the contractor’s payment for work done on, or materials delivered to, the property.
What is the underlying principle of a builders’ lien?
Work done to a property is considered an improvement which benefits the owner. The person who did the work relating to the improvement is entitled to get paid by the person who contacted with him, and if not, the owner should stand in therefor. This ensures that the owner enforcing strict payment of contractors and subcontractors.
When can I register a builders’ lien?
At any time after the work has been done, and mostly when due payments are not made on time.
Who can register a builders’ lien?
A contractor, subcontractor, or their authorized agent, i.e. a lawyer, can register a builder’s lien.
How long do I have to register a builders’ lien?
Pursuant to section 20(1) of the Act, a lien must be filed within 45 days:
  • after a certificate of completion has been issued;
and if no certificate of completion was issued,
  • the head contract has been completed, abandoned or terminated; or
  • the improvement has been completed or abandoned.
How long do I have to enforce the lien?
Pursuant to section 33(1) a notice of claim to enforce the claim must be filed within one year of the date when the lien was filed.
Should I hold back 10% of the project payments?
Section 4 of the Builders Lien Act requires the owner to retain a holdback equal to 10% of the total payments made under the contract. As this is a statutory requirement, this is not negotiable.
How long must the owner retain the 10% holdback?
Section 8 of the Builders Lien Act requires the owner to retain the holdback for a period of 55 days, after a certificate of completion is issued; which certificate is issued once the work is complete.
Should I have a contract with my builders?
Always!
How must the holdback be retained?
If the contract in respect of the improvement is more than $100,000, section 5 of the Builders Lien Act requires the owner to establish a holdback account with a savings institution, pay the holdback into, and administer, the account together with the contractor from whom the holdback is being retained.
What can the holdback be used for?
The holdback is specifically there to, by agreement between all the parties, pay liens, or if the amounts are in dispute, the owner must hold the amount in trust for this purpose.
What can the holdback not be used for?
Section 6 of the Builders Lien Act prohibits using the holdback to pay for the completion of the contract, pay for damages, or any other purpose, until the possibility of a lien arising under the person who is in default is exhausted. If no lien is filed within the allowed 45 days, the holdback may be applied.
Why must I hold back 7% when I buy a strata unit from an owner developer?
Section 88(2) of the Strata Property Act, read with Regulation 5.2, requires the purchaser of a strata lot from a owner developer must retain 7% of the gross purchase price, for a period of 55 days after the strata lot has been conveyed. This is to allow contractors who have not been paid to file a lien. If no-one does, the holdback is paid to the owner developer.