This document provides an overview of non-compete and non-solicitation agreements in Ontario. It discusses what restrictive covenants are and defines non-compete and non-solicitation clauses. It notes that for these clauses to be valid and enforceable in Ontario, they must be clear, certain, and not too vague. The document also discusses factors that courts consider for determining whether exceptional circumstances exist to uphold a non-compete clause and when it may be advisable to only include a non-solicitation clause rather than both types of restrictive covenants.
This document discusses factors that could impact the validity and enforceability of a legal form or contract. It notes that for a contract to be valid, the terms must be clear and complete, and the process for entering into the contract must be fair. Specifically, it outlines requirements like consideration, terms not being contrary to public policy, and factors impacting consent like duress, undue influence, or misrepresentation. The document provides examples to illustrate these concepts and notes that speaking with a lawyer is recommended to avoid potential challenges to a contract.
This document provides an overview of different business organizations in Ontario, Canada, including sole proprietorships, general partnerships, limited partnerships, and corporations. It discusses the advantages and disadvantages of each structure, how they are created and maintained, issues around liability, taxation, and other considerations. The author, Michael Carabash, is an Ontario lawyer who provides this information for educational purposes and notes that professional legal advice should be sought for establishing or changing a business structure.
The survey of 500 solo/small firm Toronto lawyers found that the vast majority (88%) rely on the billable hour to value their legal services. The average hourly rate was $338, with rates ranging from $78 to $750. While 64% offered some form of free initial consultation, the average initial consultation fee was also $338. Excluding contingency fees, only 5% offered alternatives to hourly billing such as fixed fees or day rates. Overall, the dominance of the billable hour may be challenged as lawyers begin to leverage technology to provide more affordable and convenient legal services.
Interestingly, unlike general partnerships (which can come into existence without the partners being aware or even specifically trying to avoid that relationship), a limited partnership can only come into existence “when a declaration is filed with the Registrar”: s. 2(2). So what about the liability of a limited partner until that happens? Well, until the declaration is filed and accepted by the Registrar, the partnership can only be characterized as a general partnership, which imposes UNLIMITED liability on the prospective limited partner.
Also worth mentioning is that you need to have a partnership before you can have a limited partnership. This means that the basic test for forming a partnership must exist at all times – namely, that one or more parties carry on business in common with a view to profit (see s. 3 of the Ontario Partnerships Act).
This document provides an overview of independent contractor agreements, including when they are used, key terms that should be included, and important considerations. It discusses how an independent contractor is defined separately from an employee. The document also outlines typical sections that would be found in an independent contractor agreement, such as the services to be provided, payment terms, confidentiality obligations, and termination provisions. It aims to educate businesses on drafting independent contractor agreements and important issues that should be addressed.
What to-do-if-you-are-a-law-firm-partner-without-businessBCG Attorney Search
Are you stuck at a firm that doesn’t encourage your business development? Are you not gaining the experience you hoped for? Learn what your options are in this article.
This document discusses senior attorneys who are partners, counsel or senior associates but do not have their own business. It argues that despite recruiters and others viewing these attorneys as undesirable, they can still be employable at law firms of all sizes. The author details their experience as a legal recruiter specializing in these types of attorneys without business. They found success placing many of these attorneys who had given up hope of further employment, by believing in their skills and potential despite lacking their own clients.
Senior attorneys without a book of business can still find employment at law firms of all sizes. While recruiters and firms typically prefer attorneys who bring in their own clients, well-qualified senior attorneys without business can be successfully placed if marketed properly. The document discusses how the author, as a young legal recruiter, specialized in placing senior attorneys without business and was able to place many of them in good positions through enthusiastic marketing, coaching, and leveraging their network and database to match attorneys to opportunities at firms in need of their specific experience.
This document discusses factors that could impact the validity and enforceability of a legal form or contract. It notes that for a contract to be valid, the terms must be clear and complete, and the process for entering into the contract must be fair. Specifically, it outlines requirements like consideration, terms not being contrary to public policy, and factors impacting consent like duress, undue influence, or misrepresentation. The document provides examples to illustrate these concepts and notes that speaking with a lawyer is recommended to avoid potential challenges to a contract.
This document provides an overview of different business organizations in Ontario, Canada, including sole proprietorships, general partnerships, limited partnerships, and corporations. It discusses the advantages and disadvantages of each structure, how they are created and maintained, issues around liability, taxation, and other considerations. The author, Michael Carabash, is an Ontario lawyer who provides this information for educational purposes and notes that professional legal advice should be sought for establishing or changing a business structure.
The survey of 500 solo/small firm Toronto lawyers found that the vast majority (88%) rely on the billable hour to value their legal services. The average hourly rate was $338, with rates ranging from $78 to $750. While 64% offered some form of free initial consultation, the average initial consultation fee was also $338. Excluding contingency fees, only 5% offered alternatives to hourly billing such as fixed fees or day rates. Overall, the dominance of the billable hour may be challenged as lawyers begin to leverage technology to provide more affordable and convenient legal services.
Interestingly, unlike general partnerships (which can come into existence without the partners being aware or even specifically trying to avoid that relationship), a limited partnership can only come into existence “when a declaration is filed with the Registrar”: s. 2(2). So what about the liability of a limited partner until that happens? Well, until the declaration is filed and accepted by the Registrar, the partnership can only be characterized as a general partnership, which imposes UNLIMITED liability on the prospective limited partner.
Also worth mentioning is that you need to have a partnership before you can have a limited partnership. This means that the basic test for forming a partnership must exist at all times – namely, that one or more parties carry on business in common with a view to profit (see s. 3 of the Ontario Partnerships Act).
This document provides an overview of independent contractor agreements, including when they are used, key terms that should be included, and important considerations. It discusses how an independent contractor is defined separately from an employee. The document also outlines typical sections that would be found in an independent contractor agreement, such as the services to be provided, payment terms, confidentiality obligations, and termination provisions. It aims to educate businesses on drafting independent contractor agreements and important issues that should be addressed.
What to-do-if-you-are-a-law-firm-partner-without-businessBCG Attorney Search
Are you stuck at a firm that doesn’t encourage your business development? Are you not gaining the experience you hoped for? Learn what your options are in this article.
This document discusses senior attorneys who are partners, counsel or senior associates but do not have their own business. It argues that despite recruiters and others viewing these attorneys as undesirable, they can still be employable at law firms of all sizes. The author details their experience as a legal recruiter specializing in these types of attorneys without business. They found success placing many of these attorneys who had given up hope of further employment, by believing in their skills and potential despite lacking their own clients.
Senior attorneys without a book of business can still find employment at law firms of all sizes. While recruiters and firms typically prefer attorneys who bring in their own clients, well-qualified senior attorneys without business can be successfully placed if marketed properly. The document discusses how the author, as a young legal recruiter, specialized in placing senior attorneys without business and was able to place many of them in good positions through enthusiastic marketing, coaching, and leveraging their network and database to match attorneys to opportunities at firms in need of their specific experience.
Gone are the days of corporate secretary duties performed in isolation. General counsel are under increasing pressure to deliver and demonstrate value to the organization. [Legal entities proliferate]. [New tax laws] and [privacy regulations like the GDPR] force a reassessment of legal structures.
Managing legal entities efficiently is critical for general counsel balancing legal, risk management, and leadership responsibilities. This presentation provides a comprehensive review of [entity management as a legal practice] and [entity management software ]as a tool from the perspective of the general counsel and in house legal team.
What to-do-if-you-are-a-law-firm-partner-without-businessBCG Attorney Search
Are you stuck at a firm that doesn’t encourage your business development? Are you not gaining the experience you hoped for? Learn what your options are in this article.
Bus106 wk5 ch5 forms of business ownershipBhupesh Shah
The document discusses various forms of business ownership including sole proprietorships, partnerships, and corporations. It provides advantages and disadvantages of each form. It also discusses corporate mergers, franchises, and co-operatives. Franchises provide benefits like a recognized name and proven management system, while co-operatives are owned by members and can give them more economic power collectively. The chapter summary reiterates the key advantages of different ownership structures.
What you-need-to-know-about-doing-business-in-asia reprintiohann Le Frapper
This article co-written by Randall Lewis and myself provides practical tips for Western companies doing business or investing in Asia, in particular China.
Guide starting a small business from ConnectLegalVictoria Geo
This document provides an overview of legal considerations for starting a small business in Ontario. It discusses:
1) Connect Legal, a registered charity that provides free legal services and educational resources for small business owners.
2) Various business structures like sole proprietorships, corporations, partnerships and cooperatives.
3) Necessary licenses, permits, and regulations that businesses must follow.
4) Options for financing a business, including loans, investments, and managing cash flow.
1. The document discusses the characteristics of partnerships, including that partnerships are associations of two or more individuals who jointly own and operate a business for profit.
2. Key characteristics of partnerships include mutual agency where each partner's actions bind the others, limited life as partnerships can end when a partner withdraws or is unable to participate, and unlimited liability where each partner is responsible for all debts of the partnership.
3. The document also briefly discusses other business structures with some partnership characteristics like limited partnerships, limited liability partnerships, and S corporations.
Business law is essential for businesses to operate successfully within legal boundaries. It provides rules for areas like forming business entities, contracts, transactions, intellectual property, employment, and more. Understanding business law helps owners make choices to comply with regulations and avoid costly litigation. It also establishes standards for fair market participation and efficient business interactions. Overall, business law creates a structured legal system that supports commerce.
Federal diversity jurisdiction is conditioned on two requirements – the amount in controversy must exceed $75,000, and there must be “complete diversity,” meaning that no defendant may have the same “citizenship” as any plaintiff.
In this CT Corporation webinar, learn more about diversity jurisdiction with special guest Thomas E. Rutledge of Stoll Keenon Ogden PLLC. For more information, head to ct.wolterskluwer.com.
This document discusses the different types of ownership in a business. This will guide business start-ups to full understand and choose the right type of business ownership which is dependent on their needs.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Succeed from the start, your guide to bringing your business to the U.S.Emma Cowdery
Learn the steps of opening a business in the U.S. from beginning to end. Brought to you by the Delaware Concierge Team for International Business, this guide outlines the necessary components of setting up your U.S. branch office from incorporating, taxes, visas, hiring employees and more. Read success stories of other international firms and get connected with experts that will help you.
This document summarizes recent discussions of a potential merger between two of China's top law firms, Jun He Law Offices and Zhong Lun Law Firm. If approved, the merger would create one of the largest law firms in China with nearly 1,300 lawyers. The merger is seen as a strategic response to the growing reputation of rival King & Wood Mallesons, which has established itself as China's first international law firm through its own merger. While some see benefits to increased scale and synergies from the merger, others note cultural differences between the two firms and challenges with integrating large Chinese firms. The implications of the merger for the competitive landscape and future consolidation in the Chinese legal market are also discussed.
Things That Would Be Helpful To Know In My New Position As In-House Counsel O...Robert Wortelboer
This presentation will provide valuable insight to those who are relatively new in their role as in-house counsel for a medical professional liability insurer through the identification and resolution of legal issues that are uniquely relevant to property and casualty insurers that write medical professional liability insurance.
The document discusses recent developments in tax reform efforts. It notes that Senate Finance Committee tax reform working groups are nearing their deadline to report recommendations to the full committee. There is growing support among lawmakers for a "patent box" tax regime to encourage domestic intellectual property activity. However, concerns remain about potential costs and overlaps with the research and development tax credit. Lawmakers are also working on short-term extensions of highway funding and tax extenders as broader tax reform efforts continue.
This document summarizes an issue between Teamsters Local 812 and the Laundry, Distribution and Food Service Joint Board, Workers United (the "Joint Board") regarding representation of workers at Manhattan Beer Distributors following a merger between Manhattan Beer and Phoenix Beverage. Local 812 has been attempting for 8 months to negotiate an agreement to share representation with the Joint Board, but negotiations have been unsuccessful due to unprofessional and potentially collusive behavior by the Joint Board. Local 812 believes the merger should trigger an election for representation rights rather than an "accretion" of workers to the Joint Board's bargaining unit as they claim.
This document provides an overview of employment agreements in Ontario. It begins by defining who qualifies as an employee under Ontario law and how employees differ from independent contractors. It notes that employment agreements are used to clarify the employment relationship and address issues like termination and restrictive covenants that may arise. The document then gives 10 tips for drafting employment agreements, stressing the importance of putting terms in writing, making agreements clear, certain and complete, avoiding traps, and considering general contract principles.
This document provides an overview of cohabitation agreements in Ontario. It defines a cohabitation agreement as a written contract between two people in a non-marital relationship that deals with their respective rights and obligations during and after their cohabitation. It notes the legal requirements for a valid cohabitation agreement and how they can be challenged. It also summarizes some of the key terms and sections that are typically included in a cohabitation agreement such as property ownership, support obligations, and termination of the agreement. The document is intended to provide general information and notes that independent legal advice is recommended for entering into a cohabitation agreement.
Read BoyarMiller's Six Ways to Better Manage Litigation and Your Business eGuide now for tips and insight from our team of attorneys with experience across industries, from oil and gas to real estate to private equity.
Gone are the days of corporate secretary duties performed in isolation. General counsel are under increasing pressure to deliver and demonstrate value to the organization. [Legal entities proliferate]. [New tax laws] and [privacy regulations like the GDPR] force a reassessment of legal structures.
Managing legal entities efficiently is critical for general counsel balancing legal, risk management, and leadership responsibilities. This presentation provides a comprehensive review of [entity management as a legal practice] and [entity management software ]as a tool from the perspective of the general counsel and in house legal team.
What to-do-if-you-are-a-law-firm-partner-without-businessBCG Attorney Search
Are you stuck at a firm that doesn’t encourage your business development? Are you not gaining the experience you hoped for? Learn what your options are in this article.
Bus106 wk5 ch5 forms of business ownershipBhupesh Shah
The document discusses various forms of business ownership including sole proprietorships, partnerships, and corporations. It provides advantages and disadvantages of each form. It also discusses corporate mergers, franchises, and co-operatives. Franchises provide benefits like a recognized name and proven management system, while co-operatives are owned by members and can give them more economic power collectively. The chapter summary reiterates the key advantages of different ownership structures.
What you-need-to-know-about-doing-business-in-asia reprintiohann Le Frapper
This article co-written by Randall Lewis and myself provides practical tips for Western companies doing business or investing in Asia, in particular China.
Guide starting a small business from ConnectLegalVictoria Geo
This document provides an overview of legal considerations for starting a small business in Ontario. It discusses:
1) Connect Legal, a registered charity that provides free legal services and educational resources for small business owners.
2) Various business structures like sole proprietorships, corporations, partnerships and cooperatives.
3) Necessary licenses, permits, and regulations that businesses must follow.
4) Options for financing a business, including loans, investments, and managing cash flow.
1. The document discusses the characteristics of partnerships, including that partnerships are associations of two or more individuals who jointly own and operate a business for profit.
2. Key characteristics of partnerships include mutual agency where each partner's actions bind the others, limited life as partnerships can end when a partner withdraws or is unable to participate, and unlimited liability where each partner is responsible for all debts of the partnership.
3. The document also briefly discusses other business structures with some partnership characteristics like limited partnerships, limited liability partnerships, and S corporations.
Business law is essential for businesses to operate successfully within legal boundaries. It provides rules for areas like forming business entities, contracts, transactions, intellectual property, employment, and more. Understanding business law helps owners make choices to comply with regulations and avoid costly litigation. It also establishes standards for fair market participation and efficient business interactions. Overall, business law creates a structured legal system that supports commerce.
Federal diversity jurisdiction is conditioned on two requirements – the amount in controversy must exceed $75,000, and there must be “complete diversity,” meaning that no defendant may have the same “citizenship” as any plaintiff.
In this CT Corporation webinar, learn more about diversity jurisdiction with special guest Thomas E. Rutledge of Stoll Keenon Ogden PLLC. For more information, head to ct.wolterskluwer.com.
This document discusses the different types of ownership in a business. This will guide business start-ups to full understand and choose the right type of business ownership which is dependent on their needs.
Non-competition and Non-solicitation ProvisionsKevin Learned
In this seminar we analyzed non-competition and non-solicitation provisions in the contexts of M&A transactions, employee/consultant relationships and subcontracting agreements. We addressed issues that arise in the drafting and negotiation of these provisions, as well as issues related to enforcement and litigation, with a particular emphasis on issues impacting federal service contractors who operate in the DC/MD/VA region.
Succeed from the start, your guide to bringing your business to the U.S.Emma Cowdery
Learn the steps of opening a business in the U.S. from beginning to end. Brought to you by the Delaware Concierge Team for International Business, this guide outlines the necessary components of setting up your U.S. branch office from incorporating, taxes, visas, hiring employees and more. Read success stories of other international firms and get connected with experts that will help you.
This document summarizes recent discussions of a potential merger between two of China's top law firms, Jun He Law Offices and Zhong Lun Law Firm. If approved, the merger would create one of the largest law firms in China with nearly 1,300 lawyers. The merger is seen as a strategic response to the growing reputation of rival King & Wood Mallesons, which has established itself as China's first international law firm through its own merger. While some see benefits to increased scale and synergies from the merger, others note cultural differences between the two firms and challenges with integrating large Chinese firms. The implications of the merger for the competitive landscape and future consolidation in the Chinese legal market are also discussed.
Things That Would Be Helpful To Know In My New Position As In-House Counsel O...Robert Wortelboer
This presentation will provide valuable insight to those who are relatively new in their role as in-house counsel for a medical professional liability insurer through the identification and resolution of legal issues that are uniquely relevant to property and casualty insurers that write medical professional liability insurance.
The document discusses recent developments in tax reform efforts. It notes that Senate Finance Committee tax reform working groups are nearing their deadline to report recommendations to the full committee. There is growing support among lawmakers for a "patent box" tax regime to encourage domestic intellectual property activity. However, concerns remain about potential costs and overlaps with the research and development tax credit. Lawmakers are also working on short-term extensions of highway funding and tax extenders as broader tax reform efforts continue.
This document summarizes an issue between Teamsters Local 812 and the Laundry, Distribution and Food Service Joint Board, Workers United (the "Joint Board") regarding representation of workers at Manhattan Beer Distributors following a merger between Manhattan Beer and Phoenix Beverage. Local 812 has been attempting for 8 months to negotiate an agreement to share representation with the Joint Board, but negotiations have been unsuccessful due to unprofessional and potentially collusive behavior by the Joint Board. Local 812 believes the merger should trigger an election for representation rights rather than an "accretion" of workers to the Joint Board's bargaining unit as they claim.
This document provides an overview of employment agreements in Ontario. It begins by defining who qualifies as an employee under Ontario law and how employees differ from independent contractors. It notes that employment agreements are used to clarify the employment relationship and address issues like termination and restrictive covenants that may arise. The document then gives 10 tips for drafting employment agreements, stressing the importance of putting terms in writing, making agreements clear, certain and complete, avoiding traps, and considering general contract principles.
This document provides an overview of cohabitation agreements in Ontario. It defines a cohabitation agreement as a written contract between two people in a non-marital relationship that deals with their respective rights and obligations during and after their cohabitation. It notes the legal requirements for a valid cohabitation agreement and how they can be challenged. It also summarizes some of the key terms and sections that are typically included in a cohabitation agreement such as property ownership, support obligations, and termination of the agreement. The document is intended to provide general information and notes that independent legal advice is recommended for entering into a cohabitation agreement.
Read BoyarMiller's Six Ways to Better Manage Litigation and Your Business eGuide now for tips and insight from our team of attorneys with experience across industries, from oil and gas to real estate to private equity.
Shutting The Door on Legal Malpractice nelysonboyd
"Understanding and avoiding potential conflicts of interest, organizing your practice, and fostering healthy client relationships will help you prevent ethics complaints and malpractice lawsuits." Deborah M. Nelson
Insider Lease Agreements (Series: Fairness Issues in Real Estate-Based Bankru...Financial Poise
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner.
This arrangement can lead to some ethical issues, should the property owner become distressed. For example, is the lease amount above market and therefore being used to inflate the property valuation? Is rent actually being paid? Is there a proper lease in place or just an internal handshake? Attorneys need to understand the set-up in order to know what is in bounds and what is outside the lines.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/insider-lease-agreements-2021/
1) CPAs and other financial professionals are now considered fiduciaries under new regulations, requiring them to put their clients' interests first.
2) Record keeping is crucial to demonstrate that all work was conducted within compliance guidelines, including documenting all client meetings and the process for insurance transactions.
3) A lawsuit awarded $14.2 million to a plaintiff after two reputable firms provided dramatically different calculations for life insurance premiums to maintain the same benefits, illustrating the risks of relying on common industry practices. Proper application of prudent investor principles could have avoided litigation.
This document summarizes key points about restrictive covenants and non-compete agreements. It discusses what types of information employees cannot take with them when leaving a job, including proprietary, confidential information, customers, and other employees. It then outlines the agenda and learning objectives for a presentation on non-compete agreements, which includes understanding their purpose and key components. It provides an overview of the types of restrictive covenants, what constitutes a legitimate business interest to support an agreement, and factors considered for an agreement to be reasonable such as time, area, and line of business restrictions.
Here is our ppt deck from the June 6th TMA presentation in Chicago. Thanks to my fellow panelists: Dave Gozdecki, Reid Schar and Jeff Vogelsang. Attendees received 1.5 hrs CE
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
Legal Office Contracts KEY CONSIDERATIONS FOR CONTRACTSTechSoup
TechSoup legal expert, DeAnna Poon, guided nonprofits through the often complex process of navigating contracts and agreements, providing the tools and knowledge needed to successfully protect your organization's interests.
CBA Presentation: Common Legal Mistakes Small Businesses Make And How To Avoi...John Watkins
May 2009 Presentation for Chamblee Business Association on common legal mistakes that small businesses make and possible ways to avoid them. This presentation is the result of seeing mistakes made over and over again. This presentation is available as a podcast (slides and audio) at www.ctflegal.blip.tv
This document summarizes key points from a continuing education course about managing risks related to real estate commissions. It discusses procuring cause issues that can lead to disputes over who is entitled to a commission. The summary explains that procuring cause is determined on a case-by-case basis, considering the entire course of events and whether a broker's actions established continuous contact leading to the successful transaction. It also outlines the arbitration and mediation processes available through boards of realtors to resolve commission disputes.
Information & Insights For Entrepreneurs and EmployeesBoyarMiller
Starting, growing or selling a business is exhilarating. The city of Houston possesses a powerful support network for business owners, but there is much to consider with any new business or growth strategy.
As entrepreneurs ourselves, BoyarMiller understands the pressures entrepreneurs and executives face, and we are passionate about helping them resolve challenges and pursue new opportunities.
Carolyn Elefant, an attorney who owns a boutique energy law practice and freelance legal marketplace, writes to request that the Maryland State Bar Association rescind its 1992 ethics opinion prohibiting lawyers from marking up the costs of freelance attorneys. The opinion is outdated as the legal profession has embraced freelance arrangements and the gig economy. Allowing markups benefits clients through lower overall rates, solo and small firm lawyers by incentivizing the use of lower-cost freelancers, and freelance attorneys by providing them work opportunities. Most other ethics authorities, including the ABA, permit reasonable markups. Rescinding the opinion would bring Maryland in line with the modern legal industry while supporting cost-effective and flexible legal services.
Three Case Studies (Series: Commercial Litigation Funding 101) Financial Poise
This webinar discusses three litigation funding case studies:
1) Disclosure of litigation funding arrangements in class action lawsuits. Recent court rulings have ordered disclosure of funding but prohibited disclosure of funder communications.
2) Non-attorney ownership of law firms. While historically prohibited, some jurisdictions now allow alternative business structures, including PWC partnering with a law firm.
3) Other developments, including a litigation funder purchasing a judgment, New York legislation on consumer funding, and securitization of litigation funding claims. The panel of litigation funding experts analyzes these cases and discusses legal and strategic implications.
This document summarizes key aspects of employment arbitration agreements and class action waivers. It explains that arbitration agreements require employees to resolve disputes through arbitration rather than litigation. The key benefits to employers are lower costs, less public visibility, and more scheduling flexibility compared to litigation. However, arbitration limits discovery and appeal rights. The document also discusses class action waivers and their enforceability in limiting employees' ability to bring collective legal claims. It provides guidance on ensuring arbitration agreements are legally enforceable.
The document discusses business practices and ethics in real estate, including antitrust laws, unfair business practices, and antidiscrimination laws. It covers topics such as ethics codes, prohibited practices like price fixing and boycotting under antitrust laws, unfair practices tests, fair housing laws, Americans with Disabilities Act requirements, and agency relationships in real estate. Key aspects of agency relationships discussed include the fiduciary responsibilities of agents to their principals, and ways agency relationships can be created and terminated.
2. Non-Compete | Non-Solicitation Agreements in Ontario Page 2 of 24
Table of Contents
What are Restrictive Covenants? .................................................................................................................... 3
What are Non-Compete and Non-Solicitation Clauses? ................................................................................ 3
Are they valid and enforceable? ..................................................................................................................... 3
Reasonableness: Duration, Geographic Scope, Activities, and Public Interest .............................................. 6
Too Vague / Uncertain to be Enforceable .................................................................................................... 10
Exceptional Circumstances........................................................................................................................... 14
Should I require both? .................................................................................................................................. 15
When should Employees agree to Restrictive Covenants? .......................................................................... 15
What if an Employee never signed an Agreement with Restrictive Covenants? ......................................... 17
Restrictive Covenant Tips ............................................................................................................................ 19
Basic Structure of the Non-Compete | Non Solicitation Agreement ............................................................ 21
About Us ....................................................................................................................................................... 24
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
3. Non-Compete | Non-Solicitation Agreements in Ontario Page 3 of 24
What are Restrictive Covenants?
―Restrictive Covenants‖ are terms and conditions in an Agreement (such as an Employment, Independent
Contractor, Shareholder, or Partnership Agreement) that limit one party’s ability to do certain things. Typical
examples include restrictions on the use and disclosure of confidential information as well as non-compete
and non-solicitation clauses. The idea behind restrictive covenants is that a party which is privy to another
party’s sensitive information or clients should be prevented from simply leaving the relationship and
competing with the other party with all those benefits.
What are Non-Compete and Non-Solicitation Clauses?
A ―Non-Compete‖ clause in an agreement puts limits on one party’s ability to compete in the same business
as the other party. In other words, during the term of the agreement and for a period of time thereafter and
within a set geographic area, one party cannot establish their own business or work for others such that they
sell the same products or services as did their current or former client, employer, partner, etc. A ―Non-
Solicitation‖ clause in an agreement means that one party will not solicit (attempt or actually sell) customers
or employees of the current or previous employer, client, or partner. This is a less drastic restrictive covenant
than a Non-Compete clause. While this DL Guide focuses on Non-Compete and Non-Solicitation clauses in
the employment context, they can also be found in business agreements (e.g. partnership agreement,
shareholder agreement, independent contractor agreement, share or asset purchase agreement, etc.).
Are they valid and enforceable?
Since restrictive covenants are contractual, the principles of contract law apply to their validity,
interpretation, and enforceability. In Ontario, this means that the provision in an Agreement must be clear
and certain enough (i.e. not too vague or missing information) to be enforceable. There’s an age-old rule of
interpretation called contra-proferentum which states that, in the case of an ambiguity, the provision should
be interpreted against the party who wrote it. Ouch! Don’t use wishy-washy language, such as ―may‖; use
definitive language such as ―must‖ or ―shall‖. Finally, don’t provide alternatives in the restrictive clause
itself – for example ―the non compete clause may last 1, 2, or 3 years‖; this will make it unenforceable for
vagueness.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
4. The full DL Guide is available for FREE
with the purchase of a Legal Form.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
Need an Ontario Lawyer? Make a Post. Get FREE Quotes! www.DynamicLawyers.com
5. Non-Compete | Non-Solicitation Agreements in Ontario Page 14 of 24
Exceptional Circumstances
So what constitutes an exceptional case for a non-compete clause to be upheld by a court, you ask? Well,
although the Ontario courts haven’t said much about it, there was a case in Manitoba which did try to answer
that question. In Winnipeg Livestock Sales Ltd. v. Plewman, [2001] 1 W.W.R. 153, the Manitoba Court of
Appeal reviewed the various Canadian authorities on the issue of ―exceptional cases‖ and held that the
following factors were relevant:
In summary, the authorities reveal that the following circumstances will generally be relevant in
determining whether a case is an ―exceptional‖ one so that a general non-competition clause will
be found to be reasonable:
1. The length of service with the employer.
2. The amount of personal service to clients.
3. Whether the employee dealt with clients exclusively, or on a sustained or recurring basis.
4. Whether the knowledge about the client which the employee gained was of a confidential
nature, or involved an intimate knowledge of the client’s particular needs, preferences or
idiosyncrasies.
5. Whether the nature of the employee’s work meant that the employee had influence over clients
in the sense that the clients relied upon the employee’s advice, or trusted the employee.
6. If competition by the employee has already occurred, whether there is evidence that clients
have switched their custom to him, especially without direct solicitation.
7. The nature of the business with respect to whether personal knowledge of the clients’
confidential matters is required.
8. The nature of the business with respect to the strength of customer loyalty, how clients are
―won‖ and kept, and whether the clientele is a recurring one.
9. The community involved and whether there were clientele yet to be exploited by anyone.
So if you’re thinking about having another party sign an agreement with a non-compete clause, you should
think long and hard about these factors to help mitigate against future challenges to the enforceability of such
a clause.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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6. Non-Compete | Non-Solicitation Agreements in Ontario Page 15 of 24
Should I require both?
While you can always demand that an employee, independent contractor, shareholder, partner, etc. sign an
agreement containing both Non-Compete and Non-Solicitation clauses, there are a few reasons why you may
decide against doing so. First, having both may dissuade a prospective employee or independent contractor
from signing on from the get go. They may feel that, if anything goes wrong and they leave, they will be
unemployable. Related to this is the morale factor: a new employee or independent contractor may feel bad
because, right away, they’re threatened with sanctions if things don’t work out and they try to do something
akin to what they’ll be doing for the employer. Ouch! Finally, having non-compete and non-solicit clauses
may actually INCREASE the amount of notice (or payment in lieu thereof) an employee is entitled to at
common law if the matter gets litigated: courts may increase the normal amount of notice or payment in lieu
thereof because it would take the employee longer to find suitable work with the existence of non-competes
and non-solicit clauses.
When should Employees agree to Restrictive Covenants?
Well, there are basically three options here: (1) right at the beginning, (2) during the course of employment or
(3) right at the end. I’ll discuss the pros and cons of each in turn.
Prior to Employment
This is generally a good time to have an employee sign a non-compete / non-solicitation agreement. The
Consideration (i.e. pay, benefits, etc.) which the employer provides in exchange for the employee to agree to
these clauses will be reflected in the written agreement. It’s not a good idea is for the Employer to have an
oral agreement or offer of employment and then have the employee start working on that basis. When the
employer later tries to introduce a written employment agreement with non-compete and non-solicitation
clauses without offering any new ―Consideration‖, the employee may claim damages based on constructive
dismissal. So make sure that the employee doesn’t start working until a written agreement has been signed.
One problem with entering into these agreements at the beginning of the relationship is that may become
unreasonable with the passage of time. Whether a restrictive covenant is valid and enforceable will depend,
in part, on whether it was reasonable at the time it was entered into (not at the time it was broken). So if an
employee agrees to a restrictive covenant 50 years ago, the courts may look at this negatively.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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7. Non-Compete | Non-Solicitation Agreements in Ontario Page 16 of 24
During the Course of Employment
As discussed above, if the employer tries to unilaterally change fundamental aspects of the employment
relationship without giving the employee additional consideration (e.g. pay, benefits, etc.), then the employee
can argue that they were constructively dismissed and seek damages for reasonable notice (at common law)
and under minimum standards legislation (e.g. Ontario Employment Standards Act, 2000). So how can an
employer avoid this from happening? Well, it all comes down to asking the employee to agree to the
restrictive covenants in return for X (i.e. something of value). This could be a pay increase, one-time
payment, etc. The employee is being asked to give something up – namely, their right to compete. So the
employer must give something in exchange.
After termination of the Employee
So when the employee is terminated or resigns, it’s a good idea to: (1) get an employment settlement and
release agreement (so that the employee does not go after the employee for something to do with the
employment or termination thereof) and (2) get the employee to agree to a non-compete or non-solicitation
clause, if it can be done. These are two key things an employer will want; to get them, the employer will
need to provide – you guessed it – ―consideration‖ (i.e. something of value to the employee in exchange for
giving up its rights). Now, the good news is that, if an employer can get these documents signed and
delivered, then it will look good on the employer if the matter is ever contested in court. Why? Because it
was agreed to by two parties who were leaving each other. Unlike a restrictive covenant which is agreed to at
the beginning of the relationship (which may have been long time ago), signing at the end of the relationship
will mean it’s more recent to when the alleged breach of contract would occur. The payment may be part of
an overall termination / severance package. It’s just a good practice to have these things entered into at the
end to put some clarity on the issue so you’re not leaving it up to courts to decide whether they should be
enforceable.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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8. The full DL Guide is available for FREE
with the purchase of a Legal Form.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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9. Non-Compete | Non-Solicitation Agreements in Ontario Page 17 of 24
What if an Employee never signed an Agreement with Restrictive Covenants?
So the situation is as follows: as an employer or human resources person, you’ve gone ahead and hired
someone. Now, for whatever reason, you didn’t use an Employment Agreement which contains restrictive
covenants, such as non-compete and non-solicitation clauses. But you didn’t think about it. Now the
employee has left and is basically competing with you in the same business and soliciting your clients and
employees to join them. Nothing was ever written or signed to the effect that they couldn’t do so. So where
does that leave you? It’s a very complex area of law, but there was an important case that talked about this
very situation – albeit in a very unique circumstances.
In Gertz v. Meda Ltd. (2002), 16 C.C.E.L. (3d) 79, the Ontario Superior Court of Justice was faced with the
following situation. An employee engineer worked for a placement agency for 8 years. The employee was
dismissed and then went to work briefly for another placement agency to help put together a proposal he had
previously given to the original placement agency. This is where things got contentious: the original
placement agency sued for damages resulting from breach of fiduciary duty and confidentiality.
So the issues before the Court were twofold: (1) was the employee a fiduciary of the employer which
required him NOT to compete against the employer and (2) did the employee breach confidentiality
provisions. Keep in mind that there was no written agreement dealing with these matters, so the Court would
have to rely on common law (i.e. judge-made law).
With respect to whether the employee breached his fiduciary duty to the employer by leaving and then
immediately competing, the Court concluded that this particular employee owed NO SUCH DUTY.
Therefore, the employee was free to do so. The Court reasoned that, while certain employees (such as top
management, directors, officers, etc.) may have a fiduciary duty not to do so (in accordance with their duty of
loyalty, good faith, and avoiding conflicts of interest, etc.), this particular employee was simply a glorified
salesman:
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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10. Non-Compete | Non-Solicitation Agreements in Ontario Page 18 of 24
38 I conclude on the evidence that Mr. Gertz was, essentially, a salesman who managed the
Chrysler account and others, with a view to selling labour at a markup. He had little or no
authority to make decisions that affected the company. He had no power to direct and guide the
affairs of the company. As issues arose that required the exercise of authority, his function was to
make recommendations only, while the power to make decisions remained with Mel Lawn and, to
a lesser extent, Mr. Rosenthal. To use the label that emerges from the caselaw, I find that Mr.
Gertz was a ―mere employee‖, to whom a fiduciary duty does not attach.
OK, so the court found that MERE employees are entitled to get up and compete with their previous
employer. Those in top management, however, may not be so lucky – even if no contract is signed. Their
duties of good faith, loyalty, and avoiding conflicts of interest may restrict their ability to compete.
So that takes care of the first issue. But what about using confidential information? When the employee left,
he didn’t take anything with him other than his accumulated knowledge retained in his mind. The Court
found that there was no breach of confidence. So how did it get there? Well, first the Court said that a
breach of confidence requires 3 elements:
1. Confidential information
2. Which was communicated in confidence and
3. Which was misused by the party who received it.
Among other things, the Court found that the information was not confidential (it was shared, common to the
industry) and it was not unfair for the employee to use that information anyways since he had been
wrongfully terminated.
So what’s the moral of the story? Well, just because employees haven’t signed restrictive convenant
agreements (e.g. non compete, confidentiality, non-solicit) doesn’t mean that they can be PREVENTED from
competing or soliciting. At common law, they CAN be PREVENTED from doing so if they owed a fiduciary
duty or a duty of confidence to the employer. There are common law tests that need to be met before a judge
will conclude that the employee did anything wrong. So why wait until a judge rules on an unclear matter
when you can just have a contractual obligation entered into at the beginning of the relationship and perhaps
at the end? If they are clear, reasonable, and fair and entered into properly, then you (as an employer) stand a
much better chance of enforcing them if you need to.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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11. The full DL Guide is available for FREE
with the purchase of a Legal Form.
Michael Carabash, B.A., LL.B., J.D., M.B.A. michael@carabashlaw.com
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