Advertising Claims…Will Your Research Support Them?

Posted on by Mary G. Griffith

In my previous life as a marketing executive, one of my boss’ favorite sayings was “statistics are like a lamppost: more often used for support than illumination”. This is a good thing to remember when you are dealing with the issue of claim support. Think first about whether the information that you are using is research that was conducted in order to support the claims you are now wanting to make…or are you trying to make data from a previous study, conducted for an entirely different purpose, support the new direction in which you wish to take your product? One of the things that I review with clients is the actual wording of the question that was asked of the respondents of a study, to ensure that the data being used as support for their claim is truly “on point”.

Sometimes previous data on file may be appropriate but keep in mind that the reasons for which you want to use the information may have legislative or “rule of thumb” requirements that must be met. Previous data may not always meet these requirements, and furthermore the requirements will vary in how stringent they are depending on the type of claim (a “hard” efficacy claim vs a “soft” consumer preference claim) and the type of product (food, drug, cosmetic, medical device, etc.) about which the claim is being made. If you are making efficacy claims, Health Canada may have rules about not only the number of respondents in the study used to support the claim, but requirements (sometimes quite stringent) about the methodology, geographic diversity and time frames; but even the softer, consumer preference claims need data that supports the same geographic and demographic profile as the target group to whom you are making the claim.

One of Steven Covey’s 7 Habits™ is “Begin with the End in Mind”. He was talking about the habits of highly effective people, but the same is true of research. What are you trying to find out? How will the information be used? And by whom? Remember that research supporting a claim can be challenged – by regulators, consumers or your competition if a trade dispute or other complaint action should arise – so make sure that it is in a form in which the particular support you are dealing with can be isolated if it needs to be shared, and other proprietary information, or information that you would not want to make public, can be easily excluded.

Thinking ahead to the various potential uses for research you are considering conducting, as well as the claims you want to make, and actually having your lawyer review some of the potential claims and questions for that study, can save you time and often significant money later on.

Compensation for Attorneys for Property? Compensation for Attorneys for Personal Care? – Part 2

Posted on by Michael A. Chambers

I previously described what an individual may charge for work performed as an Attorney of another under a Continuing Power of Attorney for Property. I will here describe what an individual may charge for services provided to or for an incapable person under a Power of Attorney for Personal Care. It is not at all as straight forward as the case under a Continuing Power of Attorney for Property.

An individual acting under a Power of Attorney for Personal Care is entitled to compensation, but unlike the situation with Powers of Attorney for Property, the right to do so is not to be found in the Substitute Decisions Act or Regulations made under it, and there is no clear, precise method to be used in calculating it. Rather case law has determined that an Attorney (or Guardian) of Personal Care is entitled (should he or she wish to claim it) to “reasonable” compensation for the personal care services performed. The case law has made it clear that in order for an individual to claim compensation for acting under a Power of Attorney for Personal Care:

1. There must be sufficient evidence about the nature and extent of the services provided.

2. The evidence of the services must be such that based on it a reasonable amount can be fixed for the compensation.

3. The compensation requested must be reasonable.

4. The services rendered must have been either necessary or desirable and again, reasonable.

5. In determining what is “reasonable” both in terms of services provided and compensation claimed, the amount claimed must not only be “reasonable” in terms of the services performed but must also be “reasonable”, i.e., proportionate, having regard to the means of the incapable person.

It is important to note that the individual claiming compensation must be reasonable in that claim. In one reported case, an individual claiming $133,000.00 for services provided to her mother under a Power of Attorney for Personal Care over a just under 3 year period, had that sum reduced to $25,000.00.

So whether seeking compensation under a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care, be careful, seek professional advice, and above all be reasonable.

DIY Legal Advice – Sometimes you get exactly what you pay for

Posted on by Gordon B. Greenwood

There is really no way to keep this from sounding self-serving for the legal profession but, just as in medicine, pharmacy and the like, there are times when certain things are best handled by a professional, even if you don’t happen to like lawyers. While lawyers may not be able to help alleviate your physical pain, they can certainly help you to avoid experiencing pain, or help to reduce the amount of pain it takes to achieve a resolution.

Perhaps the following true anecdotes may help to show that this is not all about self-promotion:

1. A client undertakes a new business venture in an area in which they have no experience; outsources their website to an off-shore company; their packaging and labelling is done in-house by calling in a few favours from someone who has experience in a broadly related (but not the same) area and the client goes to market without having properly classified his goods or filed the necessary government notifications.

RESULT: Goods are seized at the border, packaging and labelling is refused, goods are re-exported and the client ends up losing its sunk costs, has to incur legal expenses to assist with the government intervention and ends up now incurring the costs which it would have paid initially to properly set up its business so that it is in compliance with the law.

2. A client seeks to invest in a business which has been successful in other initiatives. The management of the firm into which the investment is being made believes that, since they have done it before with legal assistance, they can now do it themselves and save time and money. Management creates documents which do not properly reflect the business venture, which are non-compliant with government requirements and which end up being rejected by the investor. At the investor’s prompting, legal counsel is once again retained by management and the matter starts to move forward, but management still insists on relying upon their own “expertise” in drafting legal documentation without involving their legal counsel.

RESULT: The investment is delayed; additional legal costs are incurred in redrafting documents in a proper legal fashion and the investor loses confidence in management and the investment.

3. A client is about to leave on a lengthy vacation and would like a Will. The client acquires a pro forma Will, fills it in and goes on vacation but asks the law firm to hold the Will for them upon their return. A lawyer agrees to hold the Will for them upon condition that, upon their return, the lawyer will tell them what the Will actually says before the client tells the lawyer what they meant it to say.

RESULT: Upon return from vacation the client sits down with the lawyer and the lawyer explains the terms of the pro forma Will and also what is missing. After indicating that the pro forma Will did not reflect their wishes at all, the Client requests a new Will reflecting their wishes. The client’s true gifting intention had been at risk during the month long vacation and the time it took to draft the Will. Good thing nothing untoward happened!

This is not to say that clients cannot, and should not, do many things themselves. There is no substitute for a common sense approach and a common sense solution to many things. Most clients are certainly able to do Small Claims Court actions, to negotiate the commercial terms of a business contract, to decide what they want done with their estate or to come to an agreement with his or her spouse on the practicalities of separation and access rights to children, if everyone acts reasonably. Some clients seek some legal advice before they undertake their own Small Claims Court actions and, for the other items recited above, a lawyer’s work is made quicker and cheaper if the only task left is to transform these practical agreements into legal documents.

However, as we all know, common sense and practicality do not always win out and the lawyer may have to undertake the role of being an advocate as well as a draftsman. In this case as well, one hopes that the lawyer exercises the same elements of common sense and practicality as he or she was looking for from the client.

When engaging the services of a lawyer, make sure that you have a discussion about the roles to be played as between lawyer and client so that proper recognition is given to the wishes of the client and to the professional expertise of a lawyer.

Even for lawyers they say: “A lawyer who represents himself has a fool for a client.”

Compensation for Attorneys for Property? Compensation for Attorneys for Personal Care? – Part 1

Posted on by Michael A. Chambers

Persons who are acting under a Power of Attorney for another, whether it be a Continuing Power of Attorney for Property and/or a Power of Attorney for Personal Care, often are uncertain what, if any, compensation they are entitled to for the work they do acting under the Power of Attorney. As it turns out, both an Attorney for Property, and an Attorney for Personal Care are entitled to (but of course in their discretion are not required to) charge for their services. However, the compensation is quite different, and its calculation is quite different. I will deal here with compensation that any individual acting on behalf of another under a Continuing Power of Attorney for Property is entitled to charge. The next time you hear from me I will deal with compensation that may be charged when you are performing services for an incapable person under a Power of Attorney for Personal Care.

Describing the compensation that may be charged under a Continuing Power of Attorney for Property is the easy one. Under the authority of Regulations enacted by the Province of Ontario an Attorney (or Guardian) for property is entitled to charge for his or her services:

  1. 3% on capital and income received (which includes all of the assets of the person you are managing the affairs of including the real estate and vehicles owned by him or her, and his or her bank and other investment balances when you first take over management of his or her affairs),
  2. 3% on capital and income disbursements, and
  3. 3/5ths of 1% of the annual average value of the assets of the person whose affairs you are managing.

Three other points.

One, if there are two or more attorneys acting under the same Power of Attorney, they must share the compensation described above – no double charging of fees.

Two, be aware that a court may be called on to review your accounts and allow or reduce the amount of compensation. Therefore, it is very important that you keep good records of all transactions involving the property or accounts of the person whose affairs you are managing. More on this at a later date.

And three, in the case of any doubt or question, seek professional advice before acting.