Advertising and Marketing: The Problem with “Global” Advertising

Posted on by Mary G. Griffith

Canadian advertisers are often given the direction from their US parent companies to use the same advertisements in Canada as have already been produced for the US. There is a constant tension between the cost efficiencies of using the same ads on both sides of the border and the very real issues posed by conflicting requirements. Contrary to what some may think, it isn’t that easy to import US advertising to Canada (even if you exclude Quebec). Several issues arise, from the substantiation of claims (what if the formula is not the same in Canada as the one in the US on which the claim is based?) to the respondent base for the research (even if the formula is the same where were the tests conducted?) to the allowable claims (are you permitted to make the same claim in Canada as is permitted in the US?) to the requirements for the use of flags and currency, and other intellectual property issues.

Bottom line – if you think that you will be required to use advertising that is original to another country, it is much easier to get Canadian legal advice up front and be involved in shooting alternate frames or voiceover when the original ad is being developed, or even conducting additional research, than to try to adapt and fit “a square peg to a round hole” at a later time.

 

USAs and Corporate Law: Letting Friends Stay Friends

Posted on by Gordon B. Greenwood

In the corporate world, a “USA” is not necessarily our trading partner to the south but more commonly a Unanimous Shareholders Agreement that can help friends stay friends. It makes clear what happens when family members join the business, clarifies what happens when one of the shareholders dies and much, much more. Even best friends that create a business concept over a couple of beers, bring the concept closer to reality at a BBQ, dip into their savings to start the company and jointly share obligations at the bank to create the operating line, often find that time changes everything.

A USA identifies the shareholders, their respective interests, who will be directors, which directors’ powers are controlled by shareholders, what offices people hold, how shareholders can take money out of the company, what happens if someone wants to sell their shares, what happens if people die, and so on. While we are great advocates of trust and a handshake, there is no substitute for the written word, especially when a child or spouse of a deceased shareholder shows up with proxies in hand and wants to take control of your company.

One of the most important elements of a USA is that it clearly sets out various rights and obligations so that these elements don’t get in the way of the friendship at a later date. You really don’t want your family inheriting a fight with your business partner and you also don’t want to have your business on the block in a divorce settlement. Taking care of your personal business makes good business sense. Treat it that way.

Advance Medical Directives and Medically Assisted Death

Posted on by Frank G. Tanner

As many readers may know, it is common to include in one’s Ontario prepared Power of Attorney for Personal Care (“PA PC”) an Advance Medical Directive, sometimes called a Living Will, indicating what medical treatment one wants or does not want at end-of-life and when one is not competent to make such decisions oneself.

The Medical Directive (“Directive”) can vary in detail from a list of numerous medical procedures that the individual wants or does not want at end-of-life, to a brief statement that no heroic measures should be taken and simply manage the individual’s pain. Even this last brief generic Directive can have variations such as: If unable to swallow or keep food and liquid down, should nutrition and hydration be administered intravenously?

Clearly it is important that the client instruct his/her lawyer of any special and specific wishes he/she may have with regards to end-of-life medical care to assist the lawyer in the preparation of an appropriate Directive in the PA PC. Moreover these instructions are important for the named grantee in the PA PC who could be called upon to make end-of-life decisions in the absence of a Directive in writing. These decisions can be particularly onerous, indeed potentially family wrecking, when there is no agreement among family members.

A new consideration in making a PA PC is whether the client wishes to have medical assistance in arriving at death. Although no legislation or regulations have become law in Canada, excepting Québec, we know they are imminent in view of the Supreme Court of Canada’s judgment that the prohibition against medically assisted death is unconstitutional (read a copy of the judgment here) and the Court’s direction that legislation be passed.

It is likely that the legislation and regulations will establish who can carry out a wish for medically assisted death and under what circumstances. Nonetheless prior to the named grantee requesting a doctor or medical board to respond to the individual’s wish, the named grantee should have some direction in the PA PC as to the circumstances in which such a request should be presented.

Should the request be made when the loved one’s life no longer has quality? Who is to determine the measure of quality – is it the named grantee or the attending physician(s)? This ‘fuzzy’ wording is of little assistance particularly when the client is incompetent and unable to make or communicate his or her wish at the time a decision is to be made.

What if circumstances are such that there is no reasonable expectation of recovery, death is imminent and treatment will only prolong a life that is precarious and burdensome with excessive expense to the client’s family and community? Would a grantee feel that he/she was carrying out the loved one’s wishes by seeking a medically assisted death? In the absence of a Directive, I would think not.

In light of the Supreme Court of Canada’s recent decision, making one’s wishes for end-of-life medical care clear and specific has become even more important and should be discussed in detail when giving instructions to your estate planning lawyer.

Substantiating Performance Claims

Posted on by Gordon B. Greenwood

The Competition Bureau recently published Volume 2 of The Deceptive Marketing Practices Digest in which they dealt with, among other things, a restatement that companies must be able to substantiate the performance claims for the products they sell so that the public will not be misled. They need to be in possession of that proof prior to making the claim. As is the case with all advertising claims, the overall impression of the advertisement or label will be taken into account.

In Volume 2, the Bureau recites that what is sufficient substantiation, or an adequate and proper test, is flexible and isn’t necessarily required to meet strict industrial standards. The determination of what is “proper” is interpreted as being “fit, apt, suitable or as required by the circumstances.” The Bureau’s position on what is “adequate and proper” has changed over the years, partly due to judicial rulings, and time will tell if industry and the Bureau can have parallel interpretations of what is fit, apt, suitable or as required by the circumstances. How flexible is flexible?

The overall impression, or the general impression, of a claim will be viewed by the context in which it is presented, and will always be the governing principle for claim substantiation, interpretation, misleading representations or any other impact on the consumer.

Courts have determined that the requirement for adequate and proper testing to substantiate a claim may be an infringement on freedom of expression, but that infringement is not so substantial as to make it invalid. It is determined to be in the public good, as protection for consumers. That being said, we believe that the requirement for reasonableness flows in both directions.

The Bureau and the claimant must determine whether the support is sufficient to justify the claim being made. Both must consider the overall impression created in the consumer’s mind, the actual words used and what is a reasonable interpretation. Unless there is honesty from one side, and flexibility from the other, we may see more litigation on this area.

The Bureau has summarized certain principles from the case law which they indicate are the hallmarks of an adequate and proper test. These are:

  • It depends on the general impression that the advertisement makes on consumers;
  • It is conducted before the claim is made;
  • It is done under controlled circumstances, controlling for external variables;
  • Subjectivity is eliminated as much as possible;
  • It is not necessarily measured against a test of certainty, but it should establish that the results are not mere chance or a one-time effect, by establishing that the product causes the desired effect in a material manner; and
  • The results of the testing support the claim made.

Tips for a First-Time Home Buyer – Part 2

Posted on by Megan E. Fife

Tip #2 – Be prepared for the additional costs that come with your first home purchase.

When considering what money you’ll need when buying a home, the sale price of the home itself, including your down payment and fees to your real estate agent if you use one, are the obvious costs that come to mind. But there’s more, and in order to avoid any nasty surprises in the weeks leading up to your closing date, make sure you’re prepared and fully informed about those extra costs.

Land transfer tax is a common surprise; luckily, the Province of Ontario provides a refund of up to $2,000.00 for first time home buyers. To qualify for this refund (which is applied for by your real estate lawyer immediately when registering your ownership of the home), both you and your spouse (if applicable) cannot have previously owned a home, or had an interest in a home, anywhere in the world. This can be a huge monetary advantage, and the resulting savings could allow you to put down a larger down payment, buy that new couch you’ve had your eye on, or it might simply lighten the financial load. Depending on the sale price of your home, this savings could mean you are exempt from paying land transfer tax altogether; a real advantage for first time home buyers.

Property taxes can also be a (minor) additional cost that most first time homebuyers are unaware of. The vendor will only be responsible for property taxes up to the closing date, although they may have pre-paid beyond that. If that’s the case, and it often is, the buyer will be responsible for paying back the difference to the vendor. If you’re buying a condominium, you may face the same situation with condo fees. Ensuring these credits are properly calculated and paid for will be handled by your real estate lawyer, but you’ll still have to provide the required funds.

Finally, in addition to legal fees, there will be costs associated with searching the property’s title (to make sure that there is nothing registered that would adversely affect your title to the property) and registering your new ownership and mortgage (if applicable) on the property. There is the cost of title insurance, a one-time payment that protects the property owner and any lenders against losses related to the property’s title or ownership (the Financial Services Commission of Ontario (FSCO) has an informative brochure describing this in more detail); as well as any other minor disbursements (photocopy, printing and/or courier charges) your real estate lawyer may incur.

Every real estate purchase is different and the costs associated are specific to the property itself, the purchaser(s) and the vendor(s). Your real estate lawyer will walk you through the additional costs associated with your specific purchase when the time comes, but being aware that these additional costs exist from the beginning will help you to better budget for the completion of your purchase transaction.

So, tip #2 – make sure you’ve set aside additional funds, beyond your down payment and anticipated real estate fees, so that you’re fully prepared. Avoid nasty financial surprises so that you can properly revel in the excitement of purchasing your first home.