Law

10Mar 2015

Bully behind barsCourt cases, like most things in life, are not always clear-cut. It is sometimes easy to make assumptions about people and pass judgment without hearing the whole story. Snap judgments can be dangerous, especially if they place you on the wrong side of the law.

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10Mar 2015

Innocent until proven guilty is an important sentiment for us to hold, especially in court cases. Snap judgments can hurt innocent people, and this is particularly true with the law. Take a look at this court case, which exemplifies the importance of the concept of innocent until proven guilty.

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27Feb 2015

someone getting arrestedAs we saw in part one of our blog, police officers can make mistakes and having a great legal team can ensure that the law is on your side. This case demonstrates how snap judgments, insufficient evidence and unfair treatment can blur the line of justice and how we at Costa Law Firm work to make sure the truth is heard.

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27Feb 2015

police traffic stop

As highly trained and hardworking as police officers are, they aren’t exempt from human error. So what happens when these human errors threaten the freedom or infringe on the rights of citizens? This case demonstrates how snap judgments, insufficient evidence and unfair treatment can blur the line of justice and how we at Costa Law Firm work to make sure the truth is heard.

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12Oct 2012

When stopped by the police, an individual is under no obligation to provide any information and can simply choose to walk away.  Section 9 of Canada’s statutory declaration of fundamental rights known as the Canadian Charter of Rights and Freedoms enshrines the right not to be arbitrarily detained or imprisoned, and protects the individual from unjustified state interference.  The courts have recognized that this liberty includes not only the freedom from physical restraint but from psychological restraint as well.

DETENTION

Where the choice to speak or walk away from police is removed, either through physical or psychological restraint, an individual is considered detained.  Once detained, the right to silence and the right to speak to a lawyer are triggered.  Police may insist on asking a detainee questions, however there is no obligation to answer the police.

RIGHT AGAINST SELF-INCRIMINATION

It is important to understand the fundamental right against self-incrimination, since anything you say to police may later be used as evidence in your prosecution.  To fully understand your rights and obligations, it is also crucial to exercise your right to counsel immediately upon detention or arrest by making it clear to police that (i) you have nothing to say, and (ii) you want to speak to a lawyer immediately.

*Disclaimer:  The information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper advice.

12Oct 2012

There is no gain in delaying the preparation of both your will and powers of attorney done.  Rather, you have potentially everything to lose by not getting these documents done as soon as possible.

In general terms, estate planning gives you the security of knowing that your wishes will be respected.  Through your recorded decisions there will be people you name to be responsible to address your wishes.  As such, you should assign the matters of your personal care and finances while you are capable to person(s) you choose on the terms you want.  These concerns can be answered through documents called Powers of Attorney, distinguishing between (i) personal care and (ii) property management decisions.

A power of attorney is a document that establishes evidence of a person’s (the grantor) authority during one’s lifetime to give another person the right to act on behalf of the grantor.

A power of attorney is an essential tool in estate planning.  It gives the grantor control over decisions related to property or personal care once incapable, and avoids uncertainty as to the intentions of the grantor which can lead to an unnecessary family or other disputes.

There are two categories of a power of attorney.  The first relates to property management and it is referred to as a Continuing Power of Attorney.  It can be limited in time or tied to a particular asset.  For example, one may grant a power of attorney with respect to real estate transactions where the grantor is out of the country on closing day.  On the other end of the spectrum, a power of attorney can be all encompassing, enabling the agent to deal with all of a grantor’s assets.

The second category concerns decisions relating to health care, nutrition, shelter, clothing, hygiene and safety and is referred to as a Power of Attorney for Personal Care.  Similar to a Continuing Power of Attorney, this instrument can be limited in scope or cover all substitute decisions relating to an individual’s personal care.

In both types of power of attorneys, the grantor may appoint one or more attorneys and may dictate when the power of attorney is to take effect.  This date may be specified in the document itself, determined by a physician or capacity assessor, or take effect immediately.  In Ontario, an individual must be 18 years or older to grant a Continuing Power of Attorney, whereas a Power of Attorney for Personal Care may be granted by individuals 16 years or older.  Once executed, a power of attorney may only be revoked if the grantor has capacity.  The standard for capacity differs depending on whether the power of attorney relates to property or personal care.

*Disclaimer:  The information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper advice.

12Oct 2012

While driving a motor vehicle brings about greater freedom and mobility, one cannot forget the responsibilities that come with such a privilege.  It is important to know the transportation laws that affect us (whether it concerns a car, truck, or motorcycle, etc.), or while commuting to work, school or the long drive to the cottage.  Every driver should know the law as it pertains to the following topics before heading out on the road.

Demerit Points

In Ontario, driving licenses are granted on a graduated class system.  There are currently three classes of licenses:  G1, G2 and G (being the fully licensed driver).  A demerit point is a penalty that this attached to your driver’s license and, depending on the type of class, some drivers are permitted more demerit points than others.  For example, if you are a G1 or G2 driver, then at 9 demerit points your driver’s license will be suspended.  For a fully licensed G driver, suspension occurs at 15 demerit points.  Below is a chart of various driving offences and the demerit points associated with each:

 

DEMERIT POINTS

DRIVING OFFENCE

2

Prohibited turns

2

Failing to obey signs

2

Failing to share the road

2

Improper left turn

2

Unnecessary slow driving

2

Driver failing to wear a seat belt

2

Driver failing to ensure a passenger under 16 year is wearing seat belt

2

Backing on a highway

2

Improper opening of a vehicle door

2

Improper right turn

2

Failing to signal

2

Driver failing to ensure a passenger less than 23 kg is properly secured

2

Driver failing to ensure infant/child is properly secured in an appropriate child restraint system or booster seat

3

Exceeding the speed limit by 16 to 29 km/h

3

Failing to yield the right-of-way

3

Failing to report a collision to a police officer

3

Failing to obey the directions of a police officer

3

Crowding the driver’s seat

3

Driving on a closed road

3

Failing to slow and carefully pass a stopped emergency vehicle

3

Improper passing

3

Driving through, around or under a railway crossing barrier

3

Driving the wrong way on a divided road

3

Failing to obey a stop sign, traffic control stop/slow sign, traffic light or railway crossing signal

3

Going the wrong way on a one-way road

3

Improper use of a high occupancy vehicle lane

3

Failing to move, where possible, into another lane when passing a stopped emergency vehicle

4

Exceeding the speed limit by 30 to 49 km/h

4

Following too closely

5

Driver of a public vehicle or school bus failing to stop at railway crossings

6

Careless Driving

6

Exceeding the speed limit by 50 km/h or more

6

Racing

6

Failing to stop for a school bus

7

Failing to remain at the scene of a collision

7

Failing to stop when signalled/requested by a police officer

 

Impaired Driving

Driving while impaired by drugs or alcohol is a crime under the Criminal Code of Canada. In Ontario, G1, G2 and drivers 21 years of age and under are not permitted to have any alcohol whatsoever if they are in the care and control of a motor vehicle.  For fully licensed G drivers above the age of 21, Blood Alcohol Concentration (“BAC”) of 0.05% to 0.08%, referred to as the “warn range,” can result in a roadside suspension of 3, 7, or 30 days depending on whether the instance is a repeat occurrence.

BAC above 0.08% can result in a criminal conviction, including a fine and/or imprisonment and license suspension.  As of August 3, 2010, drivers convicted for the first time of an impaired driving offence may be eligible to reduce their license suspension from 1 year to 90 days if they meet certain requirements, most notably, the installation of an Ignition Interlock Device.

*Disclaimer:  The information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper advice.

12Oct 2012

f you (a) own property or any other valuables, (b) have children, and/or (c) run a business, then a will is necessary for your estate plan.  A will is a written instrument that directs what happens to your assets upon death.  A person who gives directions on the will is known as a testator (in the case of a male) or testatrix (in the case of a female), whereas those who receive gifts/property under the will are known as beneficiaries.

There are two main types of wills: an attested will and a holograph will.  A holograph will has less onerous formal requirements than an attested will, and generally refers to a will that is written entirely by the hand of the testator without the need for a witness.  On the other hand, an attested will is signed by the testator in the presence of two witnesses (please note that certain individuals, like beneficiaries, are excluded from acting as a witness).

A will is key for your control and certainty over the important decisions that will be made when you pass away.  Such decisions may include:

(i) Who will care for my children?

(ii) To whom shall my property be distributed to?

(iii) Have I provided sufficient financial support for my loved ones?

(iv) What will happen to my business?

A properly drafted will removes doubt when your estate is administered.  In addition, a will gives you the benefit of controlling the distribution of certain assets in a way to minimize tax liability.  Without a will, your estate’s handling will be determined by a legislated formula which may not reflect your intentions.  In Ontario, courts have generally applied the formalities and execution of the will very strictly.

If there are any defects with the will, a provision or even the entire document may be declared invalid.  Therefore, it is important to consult with a lawyer to ensure that you have a will that has been properly executed and meets all of the statutory requirements.

* Disclaimer:  the information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper legal advice.

12Oct 2012

If you are buying a home with another person, you will both have to decide how to take title (ownership) of that property.  There are two main options that are available:  (i) Tenancy In Common or (ii) Joint Tenancy.  The choice you make will have an impact on your subsequent legal rights.

Joint tenancy is a concurrent interest in which all joint tenants have a unified right of possession to the whole of the property, and each with a right of survivorship.  A right of survivorship ends the interests of deceased tenants and also enlarges the interests of the remaining joint tenants.  A joint tenancy must have what is known as the four unities: possession, interest, title and time.  Unity of possession refers to the undivided nature of the property which is enjoyed by all the tenants.  Unity of interest means that the interest must be of the exact same size and duration.  Unity of title requires that tenants acquire their titles from the same document.  Unity of time refers to the requirement that the tenants acquire their titles at the same time.

Unless a very specific contrary intention appears, where all joint tenants die at the same time in circumstances rendering it uncertain as to the order of death, each person is deemed to have held property as tenants in common.

Tenancy in common is a concurrent interest in which all tenants in common have an undivided fractional share of the whole.  The tenants do not have a right of survivorship, and can grant or devise the interest in any manner they choose.  Tenancy in common only requires a unity of possession.

Any act that destroys any of the four unities required for a joint tenancy would result in a severance and create a tenancy in common.  As a result, the right of survivorship is eliminated and each would hold undivided shares that are devisable.  Severance may be achieved by all joint tenants signing a deed to sever;  this must be registered. Severance may be achieved unilaterally and without notice, if one tenant grants away his title, for example.  In cases with many joint tenants, only those relations affected by the severance would become tenants in common to each other, those not affected would remain joint tenants.

Co-owners may be compelled to make or suffer partition.  Pursuant to s.3(1) of the Partition Act, any party with an interest in land in Ontario may take proceedings to partition such land or for the sale thereof if that sale is considered to be more advantageous to the parties interested.  The courts will make a determination that is least prejudicial to all parties involved.

*Disclaimer:  The information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper advice.

10Aug 2012

Congratulations on deciding to start your own business!  You will need to choose your method of carrying on a business.  Here we address three potential business vehicles to consider depending on your needs:  (i) Sole Proprietorship, (ii) Partnership, and (iii) Incorporation.

SOLE PROPRIETORSHIP

The Sole Proprietorship is perhaps the easiest method of carrying on a business.  It comes into existence whenever an individual sets up a commercial operation.  The sole proprietor owns the assets of the business and is the ultimate decision maker.  There is no formal registration requirement for a sole proprietorship.  However, you may have to register a business name.  Although relatively easy to set up, this method does not have the benefit of separate legal status and limited liability, as may be found in a corporation.

PARTNERSHIP

When two or more persons carry on business together with a view to profit, the relationship is called a Partnership, and its co-owners are called Partners.  Similar to a Sole Proprietorship, a partnership is relatively easy to create and does not have separate legal status apart from its partners.  In addition, partners are agents of each other and can enter into agreements on behalf of the partnership, thus binding all co-owners.  Although not required, it is recommended that partners enter into a partnership agreement in order to clearly set out the parameters of their relationship.  Otherwise, the partnership relationship is governed by the default rules of the Partnership Act.  When drafting a partnership agreement, it is crucial to address issues in the partnership relationship such as: admission of new partners, dissolution, how decisions will be made, retirement of a partner, etc.

CORPORATION

Unlike Sole Proprietorship and Partnership, a Corporation is a legal entity separate in law from its owners.  It can therefore own property, carry on business, possess rights, and incur liabilities.  One of the main advantages to carrying on a business through this legal form is the limited liability and perpetual existence of the corporate form.  To create a corporation, one or more individuals who are 18 years of age or older, not mentally incapable, and not bankrupt sign and file Articles of Incorporation (which is like a birth certificate for a corporation).  Articles of Incorporation typically include information such as:  company name, address of a registered office, the number of directors;  the number and characteristics of shares authorized to be issued, and any restrictions that are imposed on the transfer of shares.

There are three major sets of players in a corporation:  the directors, the officers, and the shareholders.  Directors oversee the corporation and make major decisions.  Officers carry out the day to day operations and implement the policy decisions put in place by the directors.  While shareholders “own” the corporation through their ownership of its shares, they do not own the property belonging to the corporation, or assume its rights and liabilities due to the corporation’s separate legal existence.  Shareholders are entitled to vote, elect directors, receive the remaining property of the corporation upon dissolution, and typically share in the profits through dividends declared by the directors.

*Disclaimer:  The information provided in this article is NOT legal advice but fundamental information to be further inquired upon professionally.  You should always consult with a qualified lawyer to obtain proper advice.