Tuesday, May 31, 2011

140 Law - Legal Headlines for May 31, 2011

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Thank you for taking the time to read our tweets! Have a fantastic day.

- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Monday, May 30, 2011

This Week At The Ontario Court of Appeal: 11-05-27

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal. It was a bit of a slow week at the Court, so we've highlighted only once case.

Barrington v. Institute of Chartered Accountants of Ontario. Mr. Barrington, along with two other accountants, Mr. Power and Mr. Russo, working for Deloitte and Touche LLP, were responsible for the 1997 audit of Livent Inc., which was later found to be improperly managed and its financial statements fraudulent. The ICAO brought charges of professional misconduct against Mr. Barrington and the other accountants: specifically, they charged them with failure to comply with generally accepted accounting principles ("GAAP") and generally accepted auditing standards ("GAAS").

The main issue in the charges was the nature of the Put agreement between Livent and a realty corporation regarding development of the property that would eventually become the Pantages Theatre complex. Livent sought to recognize revenue under the agreement when it was not allowed to do so. The Deloitte accountants informed the company that this was contrary to GAAP but Livent did so anyway.

Deloitte threatened to resign until Livent agreed to remove the Put clauses from the overall agreement between Livent and the realty corporation. Livent then re-established the Put clauses in a side agreement with the realty corporation without Deloitte's knowledge; the Deloitte accountants had a meeting and decided that the Put side agreement had been rescinded. The Discipline Committee of the Institute subsquently charged them and found them in violation of professional standards. Mr. Barrington and his colleagues appealed to Divisional Court, who quashed all of the charges against Mr. Barrington and some of the charges laid against Mr. Power and Mr. Russo on the grounds that they violated procedural fairness and natural justice. Mr. Power and Mr. Russo appealed the remaining charges to the Court of Appeal; the ICAO also appealed, seeking reinstatement of the charges against all three accountants.

The Court of Appeal divided the appeals into three issues: whether Mr. Barrington et al had had sufficient notice as regards those charges that the Divisional Court had not quashed, whether the Disciplinary Committee provided adequate reasoning for finding misconduct for other charges against Mr. Power and Mr. Russo, and whether the legislative amendments subsequent to the Divisional Court's decision could retroactively validate the Committee's costs award.

The Court of Appeal first ruled that the Divisional Court had mischaracterized the charges related to the Put agreements. The Divisional Court had stated that the Put-related allegations were effectively a new charge upon the accountants; the accountants themselves agreed and argued before the Court of Appeal that neither the charges nor disclosure nor submissions had put them on notice that the Put would be in issue, and that they therefore did not know the case they had to meet. The ICAO submitted that the Put was relevant to their argument that they had reasonable assurances that the revenues realized would be properly received.

The Court was sympathetic to the ICAO's argument, also adding that the Put was not a new allegation and that the accountants would have to recognize that any investigation into potential disciplinary action would take it into account, that the accountants were not surprised or prejudiced by the the Committee relying on the Put and that the Committee ultimately did not find the accountants guilty of breaching GAAP standards in relation to the Put, but instead of recognizing income that they should not have recognized.

The Court of Appeal then considered the additional charges against Mr. Powers and Mr. Russo which were quashed by the Divisional Court. These charges were in relation to a pair of transactions where Livent transferred receivables owing to another party and which were recorded as sales by Mr. Power and Mr. Russo after some deliberation, but should not have been recorded as sales. The Divisional Court felt that the Committee's charges were unreasonable due to a lack of explanation as to why Mr. Powers and Mr. Russo's actions were an error of judgement, as well as a lack of explanation as to why if there was a breach of the standard, that there was also no explanation as to why it was so great a breach as to constitute professional misconduct.

The Court of Appeal disagreed, pointing out that previously, even in the post-Dunsmuir era of administrative law appeal, the Court had made clear that an administrative tribunal did not have to explain its full decision so long as its "path" taken to reach its decision was clearly laid out, and the Court felt that the "path" in this case was clear.

Finally, the Court of Appeal also overturned the Divisional Court's decision to quash the costs the Committee ordered upon the accountants. The Divisional Court did so as regarded the relevant statutory law at the time, but since that decision the Chartered Accountants Act had been revised, allowing it to take precedence over the Statutory Powers Procedure Act, which had restricted when a tribunal could order costs. The accountants argued that Zadvorny v. Saskatchewan v. General Insurance distinguished between retroactively changing a law and "the extinguishment of a judgement," suggesting that it would take extremely clear language to deprive a respondent of his judgement. The Court of Appeal disagreed, pointing out that the accountants weren't being deprived of the award of a successful action, but instead had been subject to disciplinary proceedings and that therefore the precedent did not apply. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto
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140 Law - Legal Headlines for May 30, 2011

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Thank you for stopping by, have a fantastic Monday!
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Friday, May 27, 2011

140 Law - Legal Headlines for May 27, 2011

Here are today's leading legal headlines from Wise Law on Twitter:
We hope that all of our readers have a lovely weekend. Thank you for taking the time to read our tweets!

- Rachel Spence, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Thursday, May 26, 2011

I Need a Patent/Trademark/Copyright Attorney!

I was direct messaging with one of my tweeps on Twitter a few days ago and the issue of intellectual property came up.1 I explained that our law firm didn’t prosecute patents, but we did process trademarks and copyrights and, of course, litigated violations of patents, trademarks and copyrights.

“I need a patent/trademark lawyer,” she said.

Upon further questioning, I was able to determine that she needed to file a trademark with the United States Patent and Trademarks Office (“USPTO”). I was struck, however, by the fact that this bright, educated woman, who has several successful businesses, did not understand the differences between a patent, a trademark, and a copyright. But I soon realized that the fault was mine for assuming that people outside the legal community had an appreciation for the differences between the three concepts.

A Patent, in the context of this blog, is “[a] grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.” http://www.thefreedictionary.com/patent

A Trademark is “[a] name, symbol, or other device identifying a product, officially registered and legally restricted to the use of the owner or manufacturer.” http://www.thefreedictionary.com/trademark

A Copyright is “[t]he legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.” http://www.thefreedictionary.com/copyright
What does this mean to you?

A Patent is basically the right to exclude others from using your invention. It is available to one who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." In the United States, patent protection extends for either 14 years (process patents) or 20 years (utility patents). http://www.uspto.gov

So, if you invent a new widget, or a new process thathttp://www.blogger.com/img/blank.gif is useful, you may be able to obtain a patent which allows you to (1) exclude others from using the patented item; and (2) allows you to license the patented item to others for a fee. Violations of patent protection may be sued upon in Federal District Court, regardless of the amount in controversy or citizenship of the parties.
Obtaining a patent (patent prosecution), is a very highly specialized area of the law. To be admitted to the Patent Bar and practice before the USPTO in Patent Law, one need not be an attorney, but must have at least a bachelor's degree in one of the specified fields of science or engineering required by the USPTO.

A Trademark, on the other hand, is a name or symbol that is registered with the government so that only you can use it. Well known examples are Coca Cola™, Microsoft™ and Droid™. No one but the owner or licensee of a Trademark may use the Trademark in commerce. As with a Patent, the holder of a Trademark can sue to enforce it in Federal District Court. Both Patents and Trademarks are registered with the U.S. Patent and Trademark Office.

Finally, a Copyright protects the intellectual property of the creator of a literary, musical, dramatic, or artistic work. Items for which a Copyright is commonly issued are books, musical recordings, videos and (movie and TV) scripts. It is important to note that although a person creating a work has an automatic “copyright,” the full protection of the law (including recovery of attorneys fees for defending the copyright) are only available after the work is registered with the U.S. Copyright Office (which includes filing a copy with the Library of Congress).

In a nutshell, these are the differences between Patents, Trademarks and Copyrights, all three of which protect intellectual property. Of course, in the real world, there are many more issues that must be dealt with in the area of intellectual property. That is why it is important that you obtain competent legal advice from attorneys with experience in this area if you wish to protect YOUR intellectual property.

-Lee Keller King

1A “tweep” is a person with a mutual following on www.twitter.com. See, http://www.urbandictionary.com/define.php?term=tweep

140 Law - Legal Headlines for May 26, 2011

Here are today's leading legal headlines from Wise Law on Twitter:
Have a wonderful day!
- Rachel Spence, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

Rae Days

Is there anyone in Canada who doesn't believe that Bob Rae will ultimately wind up as the "permanent" leader of the Liberal Party, once this interim, kabuki thing is over?

(Not that there's anything wrong with that...)

- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

Wednesday, May 25, 2011

Ontario Employment Law: Reprisal For Asserting Rights Pursuant To An Employment Contract Amounts To Wrongful Dismissal

In Brown v. 1714717 Ontario Inc., decided April 26, 2011, the Ontario Labour Relations Board found that an employer had wrongfully terminated the applicant employee when it dismissed her without cause, and in reprisal for requesting and taking time off for a vacation.

Because the employee in the case had completed less than twelve months of employment at the time she asked for time-off, she was not entitled to take a vacation or receive vacation pay under Part XI of the Ontario Employment Standards Act. Therefore, she could not insist on these entitlements as a matter of law.

Nonetheless, the employer acceded to her vacation request for time off. It also paid the applicant her accrued vacation pay. In so doing, the employer had conferred on to the applicant a greater right or benefit than the "minimum standard" provided for under the Act.

Subsection 5(2) of the Act reads as follows:
(2) If one or more provisions in an employment contract or in another act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions of the contract or Act apply and the employment standard does not apply.
Having given the applicant employee a "greater right" in permitting her take the requested time off, the employer could not then reprise against her for exercising the right merely because it was one that flowed from the employment agreement, as opposed to from the Act. This was equally a violation of section 74 of the Ontario Employment Standards Act, which, in part, reads as follows:
(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee

(iv) exercises or attempts to exercise a right under this Act
Because the responding party employer did not participate in the hearing, leaving the applicant's testimony uncontradicted and fully intact, the employer could not discharge its burden to demonstrate that it had not contravened the Act by dismissing the employee for requesting and taking a vacation from work (see subsection 74(2) of the Act).

Thus, the board found that the applicant had been wrongfully dismissed. In addition to termination pay, which she had already received from the respondent employer, the board awarded her $500.00 in damages for the employer's violation of the reprisal provisions of the Act.
- Robert Tanha, Toronto

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