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Tax Law – Patrick Westaway

 

View the chart here:

Canadian and Ontario Film and Television Tax Credits (Chart)

 

Patrick is a corporate/commercial and tax lawyer of more than 16 years’ experience. He regularly advises in such technology industries as animated feature film production, online gaming and telecommunications with an emphasis upon cross-border enterprise and investment structuring.

Municipal, Land Use, and Development Law – David Sunday

As part of its consultations on the development of a new Provincial Policy Statement (“PPS”), Ontario’s Ministry of Municipal Affairs and Housing recently made available draft PPS policies (http://www.mah.gov.on.ca/Page9990.aspx) and invited stakeholder comments:

(http://www.mah.gov.on.ca/Page10054.aspx)

The PPS is intended to provide “policy direction on matters of provincial interest related to land use planning and development”. It has legal weight by virtue of a provision within the Planning Act that requires all decisions of land use planning authorities to be consistent with the PPS. To see what’s new in the draft PPS, I created a comparison of the draft policies to the existing PPS 2005 which you can view here:

(http://ontariolanddevelopment.files.wordpress.com/2013/01/pps_comparison.pdf)

If you look at the comparison, you’ll see right away that what’s proposed is not a complete rewrite, but rather a revision to what’s already there in the PPS. That said, there are some fairly significant proposed changes. Some of the more interesting changes relate to the “greening” of development.

GREEN INFRASTRUCTURE

A very obvious “green” addition in the draft PPS policies is the introduction of the new term Green infrastructure:

Green infrastructure: means natural and human-made elements that provide ecological and hydrological benefits. Green infrastructure can include components such as natural heritage features and systems, parklands, storm water management systems, urban forests, permeable surfaces, and green roofs.

Green infrastructure appears to require a new and different understanding of what we currently think of as infrastructure, another defined term in the PPS. Unlike infrastructure, green infrastructure is not limited to just “facilities and corridors”, but may include any “element” that provides “ecological and hydrological benefits”.

The only draft PPS policy dealing with green infrastructure is section 1.6.2. This section requires planning authorities to encourage the use of green infrastructure to augment infrastructure and for other associated ecological and hydrological benefits before consideration is given to developing new infrastructure and public service facilities.

It’s notable that the definition of green infrastructure contains no reference to infrastructure itself, which suggests that green infrastructure is not intended to be just a subset of infrastructure. Rather green infrastructure seems intended to be something that stands beside infrastructure, figuratively speaking, and somehow lessens the load that conventional infrastructure would otherwise have to bear.

The draft policies provide some examples of green infrastructure but the definition is clearly non-exhaustive. If implemented, it will be interesting to see what comes to be generally recognized as green infrastructure and what types of policies municipalities develop to encourage the use of it.

RESILIENT COMMUNITIES

“Resilient” is a word that does not appear at all in the existing PPS, but appears six times in the draft PPS. The word is not specifically defined in the draft PPS, so I assume the conventional meaning is intended, i.e., being able to withstand or recover from some adverse condition.

  • “Resilient” is used in the draft PPS primarily to modify the words “communities” and “development”, as in:
  • “sustainable and resilient communities”
  • “resilient development and land use patterns”
  • “efficient and resilient communities”
  • “liveable and resilient communities”

Of course the question this raises is: What is it that communities and development are to be resilient against?

Part IV: Vision for Ontario’s Land Use Planning System of the draft PPS appears to answer the question with this statement:

Strong, liveable and healthy communities promote and enhance human health and social well-being, are economically and environmentally sound, and are resilient to climate change.

If adopted in their current form, the draft PPS policies would make climate change resiliency an indicator of good land use planning and a characteristic good development. As with green infrastructure, it will be interesting to see what would become generally recognized as “resilient communities” and “resilient development” and also what yardsticks will be developed to measure resilience.

ACTIVE TRANSPORTATION

Another new defined term in the draft PPS is active transportation:

Active transportation: means human-powered travel, including but not limited to, walking, cycling, inline skating and travel with the use of mobility aids, including motorised wheelchairs and other power-assisted devices moving at a comparable speed.

The general policy direction in the draft PPS is to promote and increase the use of active transportation, but there is no specific direction to set targets or otherwise set benchmarks for how this is to be done.

The addition of the term would not appear to present a marked policy shift, so much as an effort to clarify of what was intended by a mishmash of terminology in the existing PPS, such as “alternative transportation modes”, “pedestrian mobility and other forms of travel”, “other alternative transportation”, and “pedestrian and non motorized movement”.

COMMENTING AGENCIES

If you are interested in further reading on the draft PPS policies, many commenting agencies have posted their comments online including submissions from:

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

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Corporate Commercial – Real Estate – David Sunday

When a landlord’s commercial premises are up for lease and the leasing broker locates an interested tenant, it is quite common for the prospective landlord and tenant to sign an agreement to lease as a first step towards putting in place a final lease agreement.

While an agreement to lease is no substitute for a final lease, it is important for prospective landlords and tenants to understand that signing an agreement to lease often has the same legal effect as signing a final lease itself.

Ontario’s Courts have said that, to be valid and enforceable, an agreement to lease must show the parties, give a description of the premises, set out the commencement and duration of the term, the rent, and all the material terms of the contract that are not just incidental to the relationship of landlord and tenant.  If these requirements are met, then an agreement to lease may be legally enforced, even though the parties did not ultimately agree on the final form of lease.

If the requirements for a binding agreement to lease are not met, then an agreement to lease will usually only be considered an “agreement to agree” or an “agreement to negotiate”.  In law, such “agreements to agree” are not generally treated as legally enforceable contracts.  However, even an agreement to agree may have enforceable provisions with respect to certain matters, such as forfeiture of deposit monies, and the entering into of an agreement to lease may trigger broker commission obligations.

Often agreements to lease contain a clause that says that the tenant will accept the landlord’s standard form of lease when presented subject only to minor modifications to make it consistent with the terms of the agreement to lease.  It is one thing to have such a clause included when the landlord’s standard form of lease is available to the tenant and reviewed before the tenant signs the agreement to lease, but potentially unfair to the prospective tenant if the landlord’s standard form of lease is not provided to the tenant until after the agreement to lease is signed.  Notwithstanding the potential unfairness, the Court’s will enforce such agreements to lease if the legal requirements set out above are met.

To avoid problems, parties to an agreement to lease should always ensure that:

  • the agreement to lease is clearly drafted and fully understood by both parties;
  • the agreement to lease clearly states whether it is intended to be a binding agreement to lease or non-binding in nature;
  • the agreement to lease clearly sets out the rights of the parties insofar as preparation and acceptance of the final lease agreement is concerned;
  • the agreement to lease clearly sets out what happens in the event the parties fail to agree upon a final form of lease (e.g., Are parties entitled to walk away? Are deposit monies forfeited?); and
  • any conditions included in the agreement to lease with respect to lawyer approval are clearly drafted, reflect realistic timelines, and confer sufficient rights as to allow for meaningful lawyer review and comment.

Before signing any agreement to lease, landlords and tenants should ensure that their interests are fully protected and should ask themselves if they could abide by the terms of the agreement if it were legally enforced even in the absence of a separate finalized lease agreement.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

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Labour and Employment – Seth Jutzi

The Holiday Season may now have come and gone for another year, but did you make sure to track your overtime? Many employees likely did.

While holidays traditionally are a time for celebration and gathering with family and friends, increasingly they are becoming a time to catch up on work. The advent of mobile technology has transformed the world, and along with it the way we engage in work. Now, travelling to Aunt Tricia’s house in Hamilton or riding the chair lift at the ski hill are opportunities to check your smartphone or remotely log into your workplace desktop to catch up on email messages and the latest draft of an important document.

While mobile technology has allowed employers to increase workplace productivity, it has also kicked open the door to lawsuits brought by employees for unpaid overtime. Whether performed in the traditional workplace setting or on a smartphone outside regular office hours, employers have to keep in mind that these are workplace duties being performed for which employees can demand compensation.

In Ontario, overtime pay is governed by the Employment Standards Act, which states that employees shall receive overtime pay of at least one and one-half times the regular rate of pay for each hour worked in excess of 44 hours per week. The Act governs the vast majority of Ontario’s workforce, with a few exceptions for certain classes of workers like those in managerial roles or in certain professions like accounting and medicine.

Answering a few emails every evening and reviewing a set of documents on a Saturday morning can quickly push the average employee well beyond the 44-hour mark. All employers should be aware of this growing legal liability.

Several unpaid overtime cases are making their way through our legal systems. These cases include two high-profile class action lawsuits against the Canadian Imperial Bank of Commerce and the Bank of Nova Scotia. In the CIBC case, 3,000 employees are seeking $600 million in overtime pay, while in the case of Scotiabank, approximately 5,000 employees are claiming $350 million.

Employers who fail to address this issue run the risk of facing either civil litigation (i.e. a traditional lawsuit launched by the employee) or a complaint filed with the Ministry of Labour. If an employment standards officer finds that an employer owes wages to an employee, the officer may award the employee up to $10,000 in compensation.

Additionally, a corporation that is found to have contravened the Employment Standards Act can face a fine of up to $100,000 for a first offence. Fines for second and third offences can be as high as $250,000 and $500,000, respectively. In the case of an individual employer (i.e. a sole proprietorship), a contravention of the Act can lead to imprisonment for up to twelve months.

Employers should be mindful and ensure that there are clear and consistent policies regarding overtime and the use of mobile technology. Wherever such overtime is a likely component of an employee’s position, employers are well advised to address the issue directly in employment agreements.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

 

Author: Seth Jutzi is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario.  Seth may be reached at (519) 741-8010 or <sjutzi@sorbaralaw.com>.

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