Category: Employment Law

IP Considerations When Buying/Selling a Business

By , October 16, 2014 3:23 pm

Whether you are a business owner looking to prepare your business for an eventual sale, or a buyer looking to acquire a business, there are a number of relevant Intellectual property diagramintellectual property law issues to consider before and during the sale/purchase process. Three of the most important are outlined below:

1. Ownership
There can be substantial value in a company’s intellectual property, but only if the succeeding company owns, or has valid licenses for, all intellectual property that is used in the company’s business. Ownership needs to be properly confirmed by: (i) reviewing all agreements (such as assignments, license agreements and prior sale and purchase documents) with third parties pursuant to which the selling company is granted ownership or the right to use such third parties’ intellectual property; and (ii) by confirming that all of the selling company’s employees and contractors (who have or will create some or all of the relevant intellectual property) have executed proper written employment agreements and/or agreements assigning ownership of all intellectual property and technology developed by those persons to the selling company. In the absence of proper agreements, ownership of inventions (whether or not patentable) may initially belong to the inventor and not the company.
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The Not-So-Independent Contractor

By , October 4, 2014 8:52 am

From 2000-2006, there was a television program called “Malcolm in the Middle.” The show was called as much because the lead subject was the middle child of three: Malcolm. The theme song for the show ended with the line “life is unfair.” But is life truly unfair for those caught in the middle?

The purpose of this post is to consider the middle category of employment; those who are neither true employees but are not exactly independent contractors either: the intermediate position of “dependent contractor”.

As this post will hopefully demonstrate life is not always unfair to those who find themselves ‘in the middle.’

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Location, Location, Location! What a Demographic Shift Might mean for Employers

By , September 8, 2014 11:00 am

Location, location, location. It is the number one rule in real estate. Simply put, the mantra of real estate agents everywhere means that identical properties sited in different places will demand different prices depending upon the desirability of the neighbourhood. But what does this have to do with employment?

In promoting a compelling opinion piece in the Toronto Star on September 6, 2014, “In complete communities, pedestrians take precedence,” Chief Planner for the City of Toronto, Jennifer Keesmaat tweeted “employers want to be near echo boomers; to attract emplmt across the city.”

Within the body of the editorial, Ms. Keesmaat noted that Large employers like Coke and Google are moving to the core as they clamour to be near this future workforce. Asked for evidence of the same, Ms. Keesmaat delivered.

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Continuity of Employment Following the Sale of a Business

By , August 26, 2014 10:03 am

What are we doing about the employees? That is the all-too-familiar question asked in the purchase and sale of a business. Are all the employees fired on closing? What happens if they continue working for the purchaser? Who is responsible for paying them severance?

In fact, there are a lot of questions concerning employees in the context of a purchase and sale of a business; presuming that the business has employees.

The purpose of this post is to look at some of the issues and legal implications involved in selling or buying a business, which is also an employer.

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Mandatory Retirement for Partners in Ontario may be Illegal

By , July 7, 2014 8:31 am

Earlier this year, the Supreme Court of Canada unanimously held that the Human Rights Tribunal of British Columbia lacked jurisdiction over a complaint filed by an equity partner of a national law firm: McCormick v. Fasken Martineau Dumoulin LLP, 2014 SCC39 (“McCormick”). Through his complaint, the equity partner (Mitch McCormick), challenged a mandatory retirement provision in that firm’s partnership agreement as being discriminatory. While the Court’s decision was unanimous, it unfortunately does not resolve the issue for partnerships in Ontario.

One of the reasons is Mr. McCormick filed his complaint under a section of the Human Rights Code (British Columbia) that only applies to employees. British Columbia’s Human Rights Code does not have a provision that expressly protects the right to contract without discrimination. Ontario’s Human Rights Code, however, is much broader in scope. In Ontario, every person having legal capacity has a right to contract on equal terms without discrimination because of, among other things, age. This provision has been applied to a wide variety of contracts, including independent contractor agreements. In my opinion, there is no doubt that this provision applies to partnership agreements in Ontario and the decision of the Supreme Court of Canada in McCormick may have been different if Mr. McCormick had this protection.

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Employment Law Considerations When Selling Your Business

By , June 17, 2014 12:16 pm

For many, the prospect of retirement is a welcome thought. Perhaps you will finally have more time to spend with your spouse, children, or grandchildren. For others, retirement is an opportunity to catch up on golf, travelling, or just plain doing nothing.

For many business owners, including professionals such as doctors, lawyers, and accountants, the means by which to finance such a retirement have often come by way of a sale of oneís business or practice. A book of business can have incredible value to a willing purchaser and certainly our firm has helped several professionals successfully sell their business.

While my colleagues in Kelly Santini LLP’s business law group would be more than happy to be of service to you with respects to the legalities of such a sale, the purpose of this post is to consider the employment law considerations of selling a business; because, in addition to being a successful business owner and professional, most such individuals are also employers.

Something that most business owners fail to appreciate is that, while, for all the years that oneís loyal staff has been an asset, for potential purchasers, long-service employees can be an costly liability.

This post will look at:

  1. What business owners / employers need to know about the right to end employment;
  2. What business owners / employers need to know about written employment contracts; and
  3. What business owners / employers need to know about human rights legislation in the employment context.

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The Requirement to Pay Severance in Ontario Just Got a Lot More Complicated

By , June 16, 2014 8:56 am

In a decision that will be sure to have ripple effects beyond Ontario’s borders, an Ontario Superior Court judge has ruled that for the purposes of calculating an employer’s payroll, in order to determine whether an employee is entitled to statutory severance pursuant to section 64 of the Ontario Employment Standards Act, 2000, one looks at the employer’s entire payroll, not just that of its employees in Ontario.

The case is important because under a previous line of cases, the most recent of which being Altman v. Steve’s Music, 2011 ONSC 1480 (CanLII), the court had held that it was only the employer’s payroll in Ontario that was to be considered.

For employers with operations both inside and outside of Ontario, what the case means is that even if your operations in Ontario are modest, if the company’s total payroll exceeds the statutory limits of $2.5 million dollars, employees working in Ontario may now be entitled to statutory severance pay. This decision has the potential to increase an employer’s contingent liability with respect to severance obligations by a factor of more than three!

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All Employers Required to Train Staff Under New Health & Safety Act

By , May 13, 2014 9:02 am

The new legislation states that ALL employees must receive the minimum required training, including white collar and clerical staff.

Being July 1st, 2014, every employer in the province of Ontario will need to comply with the Ministry of Labour’s new Occupational Health and Safety Training Regulation.  This new legislation may catch many employers off-guard. Past training requirements under the Occupational Health and Safety Act have resulted in employers focusing on employees involved in physical work and the resulting risk of injury. The new legislation states that ALL employees must receive the minimum required training, including white collar and clerical staff whom employers might not have associated with having a risk of injury in the workplace.  In addition, all staff supervisors must also complete a separate health and safety training curriculum.  Corporations failing to comply with the new requirements can face a maximum fine of $500,000 if successfully prosecuted.

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Not All Employees are Entitled to Severance

By , March 18, 2014 9:56 am

A common misconception among both employers and employees is that anyone who is fired from his or her job in Ontario is entitled to severance; that simply is not the case. However, saying that a dismissed employee is not entitled to “severance” does not mean that the employee is not entitled to anything. What employees are entitled to varies.

As is explained in more detailed on my Labour Pains blog,  (see: What is Wrongful Dismissal) when people think of “severance” what they are actually thinking of is “notice.” “Notice” and “severance” are legal terms with defined meanings. Continue reading 'Not All Employees are Entitled to Severance'»

Income Replacement Options for Ill Employees

By , January 14, 2014 9:15 am

There are few good reasons to find oneself suddenly unemployed. However, of all the reasons to find oneself suddenly unemployed, the worst must be because one is sick.

This article will look at how to replace (at least in part) the income stream lost when an employee must focus his or her efforts on, and devote his or her time to, getting better rather than working.

There are a number of ways an employee who is unable to work for medical reasons can maintain an income stream. This three most common options are:

  1. Long-term disability benefits;
  2. Employment agreements; and
  3. EI Sickness Benefits.

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