Winter 2013 Newsletter - Garfin Zeidenberg LLP

Legal Matters
Ac c ord ing to Garfin Z eidenb erg L L P
Winter 2013
WHY SHOULD I TRADE-MARK MY
BUSINESS NAME?
By Stephen Cohen
Clients invest tens of thousands of dollars—or more— in their
businesses every year. They buy machinery and equipment,
lease space, hire employees, and advertise and promote.
They also protect their assets by insuring them. But what
about protecting one of their most important assets:
their business name? This is crucial because promotion of the
business name is so closely tied to the value of the business.
What is a trade-mark? A trade-mark is a distinctive sign or
indicator (e.g. a business name, word, phrase, logo, symbol,
design, image or a combination of these elements) that is
used by businesses to identify the source of their products
and services to consumers, and to distinguish their products
and services from those of other businesses. For instance,
Nike’s swoosh symbol and the words Coca-Cola are examples
of trade-marks currently in use in Canada and internationally.
Why are trade-marks so important? To see the value of your
business depreciate because someone else is using your
business name could be very costly, both financially and
emotionally. You could lose potential customers who, in
searching for your business, unknowingly call on your
competitor. In addition, if you ever decide to sell your business,
or if you are seeking investors, you may have difficulty receiving
the value you are entitled to. However, if you had registered a
trade-mark to protect the goodwill of your business, it may
have been valued at much more. Think of the value of the
name Coca-Cola alone!
Registration and protection of trade-marks: While registration
is not mandatory, in order to benefit from certain trade-mark
protections, it is strongly recommended. By applying for
registration of a trade-mark and ultimately acquiring one, you
will have the exclusive right to the use the trade-mark in Canada.
This will prevent others from using your trade-mark. The
sanctions that can be applied against others for using your
trade-mark can include substantial financial penalties and
claims on any revenues received by your competitor for using
your trade-mark. The threat of a costly lawsuit often forms a
strong deterrent to trade-mark infringement.
Please ask us about trade-mark procedures and how they
could benefit you.
Straightforward Practical Advice
“THIS WASN’T ON THE JOB APPLICATION!”
A Brief Look at Constructive Dismissal
By Louis S. Vittas
Economies change, and can impact the global
workplace by affecting available resources,
demographics, laws and regulations. These changes
can also impact employees in the local workplace.
When an employer and employee enter into a
contract of employment, neither has the right
to change the fundamental terms of that contract
without the other’s consent. This includes the
employee’s salary, job responsibilities and title. However, it is not
uncommon for an employer to make such changes to the terms of an
employee’s contract without consent. When this happens, it may be
construed as constructive dismissal.
Constructive dismissal is the concept in employment law that attempts to
protect employees from having significant changes to their employment
forced upon them by employers. Employees placed in such a situation
have a choice. On one hand, they can accept the change, either expressly
or by taking no action at all. On the other, they can reject the change, treat
the employment contract as terminated and sue the employer for damages.
Courts have found employees to have been constructively dismissed in
situations involving reduced responsibilities, demotions, changes in salary
or benefits, employer conduct aimed at forced resignation or retirement,
and increased hours of work.
Determining whether an employee was constructively dismissed is based
on the specific facts of each case. Judges will objectively examine the
employer’s imposed changes and decide whether they were reasonable
and within the employee’s job responsibilities or employment contract.
Employees must be careful not to allow their personal, subjective perceptions
of the proposed changes influence them into considering their job as at
an end. In order to be determined to have constructively dismissed an
employee, employers must be found to have taken some unilateral and
objective conduct that amounted to a fundamental change in the employee’s
employment, which the employee refused to accept. Any changes imposed
by an employer, no matter how drastic, which are accepted by the employee,
are unlikely to amount to constructive dismissal. Therefore, doing nothing
after the change has been imposed will leave an employee out-of-luck
with respect to seeking damages in a subsequent lawsuit. Similarly, minor
changes, or changes provided with ample notice to the employee, even if
unilaterally imposed by the employer, might not be construed as
constructive dismissal.
In summary, when an employee is faced with a proposed change to their
employment that is not minor or trivial, they should not flip their
workstation on its side and storm out of the workplace. Neither should
they sit idle and condone the change without a proper response to the
employer. The employee should seek the advice of legal counsel for a
proper review and thorough explanation of their rights and remedies
based on the particular set of circumstances at that time.
Issue No. 107
g z le g a l .c om
THREE RECENT ‘ALARM BELLS’ IN SPOUSAL SUPPORT
By John Syrtash
As President of the Spousal Support Database, I stumble onto
unrelated challenges to the profession, both in the case law and,
lately, with the Canadian Revenue Agency (CRA).
First, payers of spousal support, counsel and the judiciary should be
aware that a certain number of officials at the CRA have taken the
position that, for spousal support payments to be tax deductible, a
payer must produce a receipt from the recipient. Although this
requirement is not prescribed by any regulation, statute, practise
direction, court order or clause in any separation agreement, it has
prevented some payers from deducting spousal support payments.
A number of payers have now submitted their cancelled support
payment cheques and separation agreements/court orders—which
is all that is legally required for the deduction—and received reassessments
informing them of this unwritten ‘rule’ magically created by the CRA
without any legislative authority whatsoever.
In one case, a court ordered retroactive spousal support to a certain
date, characterizing all voluntary payments to date as spousal support.
The CRA rejected the order on its face without any authority whatsoever,
deeming any payments made to date as non-tax deductible “child”
support, completely ignoring the order and sections 60(b) and 60.1(3)
of the Income Tax Act, those covering deductibility and retroactive
spousal support payments. These sections permit a payer to deduct
spousal support as far back as the previous calendar year, so long as
the appropriate wording is recited in a separation agreement or
court order.
Vindictive or money-saving recipients take note. Depending on the
CRA official concerned, you may never have to declare your spousal
support. My practise direction to all counsel is to insert a clause whereby
all recipients must provide a receipt at year-end for the spousal support
received to the payee for all spousal support received.
Secondly, a very recent Ontario Court of Appeal decision warrants
attention: Fisher v. Fisher 28 ONCA 11 (January 10, 2008) written by
Madam. Justice Lang. Commencing at p. 93, her Honour makes it clear
that one cannot merely use the Spousal Support Advisory Guidelines
(SSAG) as a software tool and issues some important warnings:
“…unlike the Child Support Guidelines (CSGs), the (SSAG) Guidelines are
neither legislated nor binding; they are only advisory. The parties, their
lawyers, and the courts are not required to employ them. Importantly,
the Guidelines do not apply in many cases. They specifically do not
apply at all in certain enumerated circumstances, including where
spouses earn above $350,000 or below $20,000. Furthermore, they
only apply to initial orders for support and not to variation orders.
They are thus prospective in application. They do not apply in cases
where a prior agreement provides for support and, obviously, in cases
where the requisite entitlement has not been established. They will
not help in atypical cases. As well, there will be regional variations, as
well as rural and urban variations, that may be seen to merit divergent
results based on variations in cost of living or otherwise. Importantly,
in all cases, the reasonableness of an award produced by the Guidelines
must be balanced in light of the circumstances of the individual case,
including the particular financial history of the parties during the
marriage and their likely future circumstances. Accordingly, the
Guidelines cannot be used as a software tool or a formula that calculates
Straightforward Practical Advice
a specific amount of support for a set period of time. They must be
considered in context and applied in their entirety, including the specific
consideration of any applicable variables and, where necessary, restructuring.
Importantly, the Guidelines do not impose a radically new approach.”
Finally, notwithstanding Fisher, it is not clear that the SSAG necessarily
applies in all “typical” cases. Imagine a reasonably brief marriage (five
years) where the husband earns $81,000 annually and the wife earns
$28,000, with no children.
On such typical facts, the Case Conference Judge in Kitchener, Ontario
and both counsels agreed, on January 18, 2008, upon a 35 percent
NDI budgetary approach for 3.5 years, based on the case of Lundrigan
v. Andrews [2004] O.J. No. 4437 (Ont.S.C.J..) (see M.v.M. Kitchener
Court File No. 07-40668, SupCrt Kitchener). Using the Supportmate
Planner of DivorceMate, this approach translated to $772 monthly for
3.5 years. However, the mid-range proposed on the same facts
provided by the SSAG was only $423, much lower than judicial
“common sense” with a duration of between two and five years, an
approach much criticized by the Case Conference Judge.
My advice? Don’t be lazy. This experience reinforces my views that the
SSAG should not be relied on alone. Do a budgetary Net Disposable
Income analysis, research the case law and then cross-check with the
SSAG as a point of comparison, which in many cases will reinforce
your research.
ADMISSION TO PARTNER SHIP
Dheeraj Bhatia
The Partners of Garfin Zeidenberg LLP are pleased to announce
the admission into partnership of Dheeraj Bhatia.
Dheeraj will continue his real estate practice including commercial
and residential transactions, mortgages and mortgage remedies and
intellectual property law.
Michael E. Garfin
Founder & Managing Partner
Peter A. Grunwald
Partner
Louis S. Vittas
Partner
Martin K. Zeidenberg
Partner
Stephen M. Cohen
Partner
Dheeraj Bhatia
Partner
COUNSEL:
John T. Syrtash
ASSOCIATES:
Paul L. Rosenberg
David J. Downs
A. Paul Gribilas
Paricheher Mistry
Andrea Fenson
Tinnish K. Andersen
Michael A. Yermus
Jonathan Keslassy
Lawson Hennick
David Frenkel
Melissa Stamkos
Issue No. 107
g z le g a l .c om
NEW ASSOCIATES
Paricheher (Cheri) Mistry attended Osgoode Hall Law School and was called to the Bar in 2009. She has considerable
experience in residential real estate, gained almost exclusively at Paricheher Mistry Barrister & Solicitor, a law firm that
she started in 2009 and operated for three years. At Garfin Zeidenberg LLP, she practices primarily Real Estate law and Wills.
David Frenkel was born in Vilnius, Lithuania and moved to Canada with his family when he was five. He obtained a major
in Biology with a minor in Chemistry from the University of Windsor, while conducting research in the fields of cell biology,
developmental genetics, cancer studies and ecotoxicology. David subsequently completed his law degree, also from the
University of Windsor, while summering and articling at a boutique law firm specializing in Family Law. With over five years
of litigation experience, David has successfully represented clients in matters of custody, access, support and property
issues. David speaks Russian and is a member of the Peel Law Association. He also is a presenter of the Ontario Mandatory
Information Program (MIP) with other family law professionals at the Superior Court of Justice at 393 University Ave.
Melissa Stamkos was born in Toronto and grew up in the City of Markham. Prior to her legal studies, she graduated with an
honours degree in Business Administration from York University. She then attended the University Of Detroit Mercy School
Of Law in Detroit, Michigan, where she graduated in 2010 with a Juris Doctor degree.
While at the University of Detroit Mercy, Melissa served as the Executive Editor of the Law Review, and was notably
selected for publication on two occasions. Melissa has always had a particular passion for Sports and the Arts. She grew
up playing and coaching competitive soccer for the Unionville Milliken Soccer Club and she was also a member of the
York University Varsity Women’s Soccer Team. After graduating from law school, Melissa spent considerable time
travelling and working in Los Angeles, as a member of the management team for a Canadian pop recording artist.
Melissa became a member of the New York State Bar in 2011 and was called to the Ontario Bar in 2012. She is currently
an active member of both the Young Lawyers and Sports & Entertainment Sections of the American Bar Association, and
she looks forward to expanding her involvement in similar initiatives as a new member of the Ontario Bar. As a lawyer
licensed to practice in both Canada and the United States, Melissa aspires to broaden her experience in cross-border
transactions and international law.
David Frenkel was born in Vilnius, Lithuania and moved to Canada with his family when he was five. He obtained a major
degree in Biology and minor in Chemistry at the University of Windsor while conducting research in the fields of cell biology,
developmental genetics cancer studies and ecotoxicology. David subsequently completed his law degree also from the
Tinnish
K.ofAndersen
was born
in Addis
Africa.
is fluent in
inFamily
French
andWith
German.
University
Windsor while
summering
andAbaba,
articlingEthiopia,
at a boutique
lawTinnish
firm specializing
Law.
over five years
Prior
to joining
Garfin Zeidenberg
Tinnish was
a professional
photographer
sole practitioner.
Tinnish
her
of litigation
experience,
David hasLLP,
successfully
represented
clients
in matters ofand
custody,
access, support
andbrings
complex
entrepreneurial
for people
Garfin
LLP asCanada
she advises
and
represents
clients
property matters.spirit,
Davidpassion
speaks Russian
andand
is a creativity
member oftothe
Law Zeidenberg
Society of Upper
and the
Peel
Law Association.
in
criminal,
family,
landlord/tenant
andplaying
generaltennis
litigation
matters. time with family and friends.
In his
spare time,
David
enjoys running,
and spending
Outside of the courtroom, Tinnish enjoys walking her Wheaten Terrier and working out at the gym.
Straightforward Practical Advice
Issue No. 107
Yonge-Norton Centre • 5255 Yonge Street, Suite 800 • Toronto • Ontario • M2N 6P4 • T 416-512-8000 • F 416-512-9992 • www.gzlegal.com
DID YOU KNOW.....
We provide excellent service in the following areas:
Criminal
Tinnish K. Andersen - 416-642-5416
Wills and Estate Planning
Martin K. Zeidenberg - 416-642-5402
Partner
Jonathan M. Keslassy - 416-642-5414
Corporate/Business Law/
Intellectual Property
Michael E. Garfin - 416-642-5401
Founder & Managing Partner
At Garfin Zeidenberg LLP our primary goal is to provide
exceptional legal services through dedicated commitment
to meeting each client's individual needs. We believe
the keys to a rewarding lawyer/client relationship are
communication and availability. A client's needs must be
met expeditiously and thoroughly.
Since 1976, Garfin Zeidenberg LLP has helped many
clients realize their dreams and seen them grow from
modest businesses into multi-million dollar enterprises.
Garfin Zeidenberg LLP has helped many clients to defend
and stand up for their rights and resist unjust attacks.
Martin K. Zeidenberg - 416-642-5402
Partner
Stephen M. Cohen - 416-642-5404
Partner
Real Estate
Dheeraj Bhatia - 416-642-5417
Partner
Paul L. Rosenberg - 416-642-5405
Paricheher Mistry - 416-642-5413
Family Law
Peter A. Grunwald - 416-642-5403
Partner
John T. Syrtash - 416-642-5410
Counsel
The information contained in this newsletter is not
intended to be the offering of giving of legal advice on any
matter. Please consult your legal and financial advisors
before acting upon any information presented.
Should you wish your name removed from our mailing list,
please call (416) 512-8000. Back issues of this newsletter
are available on our website, www.gzlegal.com.
David Frenkel - 416-642-5407
Tinnish K. Andersen - 416-642-5416
Civil Litigation
Peter A. Grunwald - 416-642-5403
Partner
Louis S. Vittas - 416-642-5408
Partner
David J. Downs - 416-642-5406
A. Paul Gribilas - 416-642-5409
Melissa Stamkos - 416-512-8000 ext 480
We would like to wish everyone a
happy and healthy New Year
for 2013.
Personal Injury
Michael A. Yermus 416-642-5419
Employment Law
Louis S. Vittas 416-642-5408
Partner
Straightforward Practical Advice
Issue No. 107