Monthly Archives: April 2015

It’s election time in Alberta – a few interesting facts…

vote hereIf you live in Alberta, you likely know that there is a provincial election underway.

Here are 5 interesting facts that you may not know about elections and voting in Alberta:

  1. Voting is a “Charter Right.”  Section 3 of the Charter of Rights and Freedoms provides that every citizen of Canada has the right to vote in an election of members of the House of Commons (i.e. Federal election) or of a legislative assembly (i.e. provincial /territorial election) and to be qualified for membership therein. The Supreme Court of Canada has confirmed that voting rights enshrined in the Charter of Rights and Freedoms are limited to Federal and Provincial elections and do not extend to other elections. See the case of Baier v. Alberta.
  2. Incarcerated Prisoners Can Vote.  The Supreme Court of Canada decided in 1993 that an attempt to restrict prisoners from having the ability to vote was unconstitutional. See the case of Sauve v. Canada (Attorney General).
  3. Advance Polls.  You do not need a reason to vote an an “advance poll.” You can simply show up and vote without an explanation.
  4. Corrupt Practices.  There are various corrupt practices prohibited by the Election Act in Alberta.  For example, it is a corrupt practice to bet on the outcome of an election for the purpose of influencing the election.  It is an offence punishable by a fine of up to $5,000 or up to 2 years imprisonment or both. (see sections 170 and 177 of the Election Act)
  5. You cannot impersonate an election candidate in Alberta. Impersonating an election candidate in an Alberta  provincial election is an offence punishable by a fine of up to $1,000 (see section 157(3) of the Election Act (Alberta).

All of us at Patriot Law Group believe that voting is both an important right and a duty as citizen to participate in our democracy.  Make sure you get out and vote.

 

Why Does It Cost So Much?

Zimbabwe_$100_trillion_2009

Recently, I was talking to my mother (who lives one of the lesser nine provinces outside of Alberta) and she was complaining about the amount of money it cost her to tidy up a few legal loose ends following the passing of my Dad. As the only lawyer in my extended family, my Mom (a retired accountant) put me on the spot to explain the costs she had to pay, with a look that implied that I must also justify the existence of my profession. (I’m assuming she looked like that because we were actually on the phone at the time. You can insert “an awkward silence” for “a look” and probably get the same effect.)

I explained Patriot Law Group’s dim view of the billable hour and the way we price our services but my explanation of our practices didn’t answer the question she had. I brought up the hoary old cliché used by building contractors: “Good, fast, cheap: pick two.” But that didn’t quite resonate for her, either. She wanted to know “why”, not “how” (although she mercifully stopped short of demanding that I formulate a complete economic and sociological justification for the capitalist free market system).

The “why” boils down to the nature of the work we do and the sizeable risks people need to manage in their lifetimes. In the legal profession, we routinely assist people to navigate the most important and stressful events in a person’s life. Beyond the physical and emotional stress of these events, there are typically very significant legal and financial aspects attached. It pays to handle these events properly.

In the legal world, agreements, contracts and documents work great until they don’t. When handled improperly, things can go pear-shaped in dramatic fashion. An incomplete or ambiguous Will could cost the estate thousands of dollars in legal fees to determine who the beneficiaries are and what their entitlements are. A poorly-drafted settlement agreement to a divorce might not provide the clear and final settlement of spousal support that was intended, leaving the door open to expensive disagreements later on. A carelessly-handled real estate conveyance might miss encroachments shown in the real property report that could cost thousands of dollars to rectify.

At Patriot Law Group, we take care to handle the legal parts your matter in the right way to protect you from needless risks and, by doing so, we try to minimize the stress that come with life’s big events. It’s a big responsibility that we take very seriously. And that’s why we charge for what we do.

The Duties of an Attorney

gavelNow, if you were an American you would likely think that this article is about the duties of a lawyer. But this post originates from Alberta, Canada, where the word “attorney” means something quite different.

In Alberta (like the rest of Canada) an “attorney” is a particular type of person: someone appointed in a document to make property and financial decisions on behalf of another. The document is called a “Power of Attorney”. The name suggests the nature of the document: one person (the “donor”) is granting another person (the “attorney”) the power to make decisions on his or her behalf concerning money and other types of property.

If you find yourself appointed as an attorney by one of these documents, it is important that you understand that you are subject to a variety of legal duties the moment you begin exercising your authority.

Here are a few simple rules to help you to understand the significant duties of an Attorney in Alberta:

  1. As an attorney, you are a type of trustee. Trustees are able to deal with property for the benefit of another person. Because the trustee is dealing with “other people’s money”, very strict rules apply to the conduct of the trustee, and significant penalties can apply to a person who breaches the trust.
  2. As an attorney, you must make decisions that are only for the benefit of the donor. You may only benefit someone else if the donor gives you express permission to do so. You may not benefit yourself or a person with whom you do not deal at arm’s length (such as your spouse) unless the donor gives you clear authority to do so.
  3. As an attorney, you must keep a written record of what you do on behalf of the donor, and you must keep those records for a period of at least two years after you cease to act as attorney. The purpose behind keeping records is to be able to demonstrate what you have done and how it was for the benefit of the donor.
  4. You must be prepared to account for what you have done as attorney at any time. The donor or another “interested person” (which could include other family members of the donor) can seek an accounting and a court can order an accounting. If you have kept the records mentioned in point 3, above, an accounting will be relatively simple to do.
  5. If you are exercising a Power of Attorney that comes into effect only if the donor has become mentally incapacitated, then you have a duty to monitor the capacity of the donor and you may need to stop acting as attorney if the donor recovers his or her mental capacity.
  6. While you can decline to act as attorney, if you are the attorney for an incapacitated person, you must generally decline up front and before you commence your duties. Otherwise, you have a duty to use your powers to protect the donor’ interests, and you cannot renounce your appointment without the permission of the court (usually after passing accounts).

Of course, every situation is unique. This general information will help you understand the duties of an attorney but it not a substitute for legal advice. Feel free to contact us for a consultation.

Employment Law – Termination Packages

Given changes in the Alberta economy, there has been much in the news lately about layoffs and downsizing.

When companies  terminate the employment of their employees, the employees are often offered a “severance package.”  The severance offer usually comes in the form of a letter.  The offer is typically is open for acceptance for a relatively short period of time (between a couple of days to a week or so).  Acceptance of the offer means the employee will have no further claim against the employer other than for the benefits outlined in the offer.

It is a good idea to talk to a lawyer before accepting a severance package, even if it appears that the offer is consistent with “what everyone else is getting.”  This is because an employee’s specific entitlements on termination can vary quite a bit depending on a number of factors.

In Alberta, an employer can terminate an employee’s employment at any time, for almost any reason. This is subject to a few restrictions like discrimination on the basis of a prohibited ground such as religion.   Provided that the termination is not for “Just cause” (a topic for another blog post) , the employer’s obligation on such termination, however, is to provide reasonable notice of termination (“working notice”), or pay in lieu of this.  In practice, working notice is rarely used and the offers are almost always focused on pay in lieu of notice.

The issue then becomes what is reasonable notice?  If there is a written employment contract that confirms this, then this may govern provided that the contract is very clear on this point and the termination provisions meet the minimum notice requirements outlined in the Employment Standards Code.

If there is no written employment contract, or the contract does not address the issue of notice on termination, then a different kind of analysis is required.  While the statutory minimum notice period under the Employment Standards Code will be required, an employee may be entitled to more notice than that pursuant to the “common law.” This is the judge-made law which has evolved over time.

A “common law” analysis looks to a variety of factors in determining an appropriate notice period.  These include the age of the employee, the nature of the employment (management vs. labourer, for example), the length of the employee’s service, and the availability of alternative employment.    These factors are often called “Bardal Factors” after the case of Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.)

So that an employee can be satisfied that he or she is accepting an offer that is appropriate in light of their circumstances, a consult with a lawyer is a good idea.  Feel free to contact Patriot Law Group for just such a consult.