We All Need Assistants and Assistance

Posted on by Gordon B. Greenwood

Usually one of the first things I tell a new articling student is that they are starting out as the least valuable person in the office. I also inform them that it is important that they learn from both a legal assistant as well as from their Principal. An experienced legal assistant often performs functions which do not appear in a job description: common sense, especially when founded in knowledge and familiarity with a specific area of practice; the ability to be a sounding board for the lawyer; and the diligence to proofread those long documents which you create.

A good legal team is founded in an ability to work together, recognize one another’s skills and the giving and receiving of respect. There should be no castes but rather silos of responsibility and competence. One should have no ego issues in being required to deal with a legal assistant, because often that is the shortest way to efficiency and cost effectiveness. Where a matter involves another law office, there are few things as valuable as the legal assistants in the various offices getting along with one another.

Clients also must recognize that legal assistants are not permitted to give legal opinions and rarely do they provide information without having discussed it with the lawyer with whom they work, but that does not diminish the value of the information they convey. Clients who insist on always talking to a lawyer are usually the ones who complain about the size of the bill which they ultimately receive. Not to be repetitive, but a lawyer and a legal assistant work together to assist the client in what is meant to be the most efficient and cost effective manner.

The lawyer relies upon a legal assistant for assistance. Not only do clients not want to pay a lawyer to conduct Cyberbahn searches, fill in blanks on forms and format contracts, but my guess would be that many lawyers don’t know how to do many of those things and would have to spend substantial time attending training courses and learning various nuances of word processing programs to do so. Maybe I am fortunate, but my assistants also assist me in many strategic and executional issues surrounding the work I do. By way of example, when I am working on a commercial project my assistants will frequently suggest a way of organizing the documents that are required, the order of their execution and may remind me of a previous transaction where something worked well and is worth trying again. Scheduling, reminders, covering calls when I am unavailable, maintaining rapport with clients, etc. are all essential contributions which my assistants make, making my life easier and more organized.

Just as a few top line hints:

  • I suggest that you copy or blind copy your assistant on all email correspondence since every team works better when everybody knows what is going on;
  • Be aware of the fact that not everybody is at their best every day;
  • Also remember that everyone deserves a compliment now and again;
  • Show respect for your assistant as both a person and as a professional;
  • Protect your assistant from the arrogance of others;
  • Be supportive;
  • Bring your assistant a treat every so often;
  • Be appreciative of their skill and commitment; and
  • Smile, they deserve it.

Some days can be particularly burdensome. Assistance from an assistant can greatly help to alleviate your burden; and don’t forget sometimes your assistant also needs assistance.

Advertising – Can they really say that?! Advertising self-regulation in Canada – Part 2

Posted on by Mary G. Griffith

As I discussed in my last blog, the Canadian Code of Advertising Standards (the “Code”) sets out the criteria for acceptable advertising in Canada. The Code is administered by Advertising Standards Canada (ASC) which is the self-regulatory body for Canadian advertisers.

The Code has a complaint procedure for both consumers and advertisers who allege that an advertisement is violating one or more clauses of the Code. I will deal with each of these procedures in subsequent blogs. Before a commercial is broadcast however, it must be pre-cleared by ASC if it is advertising a product that falls into one of the five regulated categories: alcoholic beverages; children’s advertising; consumer drugs and natural health products; cosmetics; or food and non-alcoholic beverages.

Pre-clearance of advertising for products in these categories has been delegated by Health Canada to independent agencies, with ASC being the primary clearance body in some categories, the only one in others. As a condition of their license, broadcasters may only air commercials that have received a pre-clearance number.

Alcohol

ASC Clearance Services reviews alcoholic beverage broadcast advertising to ensure compliance with the Canadian Radio-television and Telecommunications Commission Code for Broadcast Advertising of Alcoholic Beverages (CRTC Code). They can also provide review services for broadcast, print and out-of-home advertising to ensure compliance with the Ontario AGCO Liquor Advertising Guidelines and for British Columbia under the CRTC Code.

Children

ASC’s Children Clearance Committee, which is comprised of both industry and public representatives, reviews every finished commercial and must approve it before it can be aired. It is important to note that in the case of advertising to children, approval is given only to the FINISHED commercial, rather than simply a script or storyboard. Approvals are valid for one year and are based on a review by the committee to ensure compliance with The Broadcast Code for Advertising to Children (Children’s Code). The Children’s Code is published by ASC, and endorsed by the CRTC.

Consumer Drugs and Natural Health Products

ASC Clearance Services reviews broadcast advertising of consumer-directed nonprescription drugs as well as natural health product advertising and prescription drug direct-to-consumer-advertising (DTCA) and direct-to-consumer-information (DTCI). Their review is done to assess compliance with Health Canada regulations. There have been many Guidance documents and policies written by Health Canada and by ASC with regard to the advertising of Consumer Drugs and Natural Health Products; ASC’s website contains a library with links to many of them. One guideline in particular, the Consumer Advertising Guidelines for Marketed Health Products is currently being updated by ASC, in consultation with Health Canada and stakeholders, to broaden its scope to encompass guidance for consumer-directed advertising of vaccines and medical devices as well as non-prescription drugs and natural health products.

Cosmetics

ASC Clearance Services reviews cosmetic broadcast advertising copy to ensure compliance with the Guidelines for the Nonprescription and Cosmetic Industry Regarding Non-therapeutic Advertising and Labelling Claims. These Guidelines are periodically updated and were most recently amended following consultations with a committee comprised of Health Canada, trade associations on behalf of industry and also the public.

Food and Non-alcoholic Beverage

ASC Clearance Services reviews food and non-alcoholic broadcast advertising copy to ensure compliance with The Food and Drugs Act and Regulations and the Canadian Food Inspection Agency’s Food Labelling for Industry (CFIA Industry Labelling Tool).

It is important to have an experienced advertising and marketing lawyer review your campaigns prior to their submission to ASC, and also during the development stages as well. This will make the pre-clearance process go more smoothly, and will also generally be more time and cost-efficient as any compliance issues can be addressed before the creative development process is too far along. Additionally, while their involvement is required, ASC review does not take the place of legal review, and in some instances discussions with ASC and your lawyer prior to or after submission of copy can be of assistance in ensuring that pre-clearance is achieved.

Powers of Attorney – Gifts and Loans to Friends and Relatives and Charitable Gifts

Posted on by Michael A. Chambers

A little known, and little used, authority given to persons acting under a Power of Attorney is the authority given under sections 37 and 38 of the Substitute Decisions Act, to makes gifts or loans to the friends and relatives of the individual incapable of managing his or her own affairs. A person acting under a Power of Attorney for another may also make charitable gifts on behalf of the incapable individual.

The authority to make these gifts and loans is subject to certain conditions:

  1. They may only be made if there are otherwise sufficient other funds to:

(a) Cover the incapable individual’s support and care;

(b) Cover the support, educational costs and care of the incapable individual’s dependants; and

(c) Cover the incapable individual’s other legal obligations.

2. There is reason to believe, based on intentions the incapable individual expressed before becoming incapable, that he or she would have himself or herself made them if he or she was capable.

3. In the case of a charitable gift, either the power of attorney document itself authorizes the making of the charitable gift, or there is evidence that the incapable individual made similar gifts when he or she was capable.

Importantly, the Act goes on to direct that if a power of attorney contains instructions with respect to the making of gifts or loans to friends or relatives, or the making of charitable gifts, any such instructions shall be followed. So, if you wish your appointed attorney(s) under your Power of Attorney to make gifts or loans to relatives or friends, or charitable gifts, be sure to expressly state that and incorporate it in your Power of Attorney before you sign it. If you want to be sure that your wishes in this regard are followed, make sure that you explicitly state what your wishes are in your Power of Attorney.

An important caveat for a person acting under a power of attorney and contemplating making a gift or loan to an incapable individual’s relative or friend, or a charitable gift on his or her behalf. The Act stipulates that a gift or loan to a friend or relative, or a charitable gift, not be made if the incapable individual expresses a wish to the contrary.

Give this some thought before executing your Power of Attorney.

So You Want to Appeal… (Part 1): General Overview

Posted on by Megan E. Fife

Unfortunately, when involved in a civil court case in Ontario, you run the risk of receiving a judgment that leaves you unhappy and/or disappointed. If that’s the case, you likely have a right to appeal, no matter which court your originating processes was heard in, and provided certain preconditions exist. The appeal process itself, and in which court the appeal is to be heard, depends not only on which court made the original decision, but also on factors such as the type of award you were given and whether or not you need leave (court permission) to appeal. The Court of Appeal for Ontario has a very informative website; but here’s a brief overview:

Originating court: Small Claims Court

Appeal to: Divisional Court
Caveat: your claim must be for $2,500.00 or more

Originating court: Ontario Court of Justice

(First) Appeal to: Superior Court of Justice
Caveat: unless legislation provides otherwise

(Second) Appeal to: Court of Appeal

Originating court: Superior Court of Justice

  1. Originating judgment was over $50,000.00
    Appeal to: Court of Appeal
  2. Originating judgement was under $50,000.00
    (First) Appeal to: Divisional Court
    (Second) Appeal to: Court of Appeal
    Caveat: requires leave of the Court of Appeal
  3. Originating judgement was a temporary order
    (First) Appeal to: Divisional Court
    Caveat: requires leave of the Divisional Court
    (Second) Appeal to: Court of Appeal
    Caveat: requires leave of the Court of Appeal

Originating court: Superior Court of Justice – Family

(First) Appeal to: Divisional Court
(Second) Appeal to: Court of Appeal

Originating court: Divisional Court

Appeal to: Court of Appeal
Caveat: must be on a question that is not a question of fact alone
Caveat: requires leave of the Court of Appeal

That being said, there are a variety of statutes, such as the Bankruptcy and Insolvency Act, which specifically describe the appeal process required for cases falling under them. No matter your case, be sure to consult the applicable Act(s), as well as a litigation lawyer, to ensure the proper procedures and timelines are followed.

Here, we are speaking of court cases only. There are special provisions which apply if you are looking to appeal a decision of an administrative tribunal, or are seeking to have it the subject matter of a judicial review.

In the following posts, I will go into more detail on the processes involved in the various avenues of appeal described above. If you would like more information on appealing to the Supreme Court of Canada, see Gordon Greenwood’s blog, “Keep Calm and Retain a Supreme Court of Canada Agent”, as well as future Supreme Court of Canada Agency blog posts, for more information.