Puneet Tiwari, JD

Be aware of what you are agreeing to when settling your lawsuit. In Johnstone v. Loblaw, 2025 ONSC 4755, counsel agreed to a settlement and then tried to add some terms which presumably their client said were important. Even if you haven’t signed the settlement documents, once you accept the terms you have reached a settlement. The documents just memorialize what that agreement was. At that point it’s too late to change what you have agreed to. So make sure you have all the terms you want before you say we accept. If there has been a back and forth, a good idea is to set out those terms one last time explicitly so that everyone knows you are in the same page. Also, according to this decision it’s standard to have clauses specifying that the employer does did not admit liability, the settlement terms are confidential, the plaintiff will not disparage the employer and that they are , voluntarily entering into the settlement, the terms of which they understand. Does that mean I don’t need to specify those terms in my negotiations? #employmentlawyer #settlement #roblaw

37

12 Comments

ARP - Part II Use of the ARP will be permitted by Health Canada where: 1) There is an underlying asset purchase taking place (i.e. control of a licensed site is changing hands pursuant to an asset deal) 2) The relationship between the vendor and purchaser is amicable (the ARP may not be available, for example, where the purchaser is acquiring the site pursuant to a power of sale exercised by a secured creditor of the licence holder) 3) The current licence is in good standing (no non-compliant rating; established history of compliance) 4) Necessary security clearances are in place with the purchaser (this is always a requirement for licensing) 5) All outstanding regulatory fees owing to Health Canada are paid 6) The site is operational (vendor must have not submitted a request to revoke the licence or a notice of cessation of operations, and activities with cannabis must be ongoing at the site). 7) The purchaser is seeking the same licence class(es) as currently held by the vendor and is not making any significant changes to the site which would, in and of themselves, require Health Canada approval (this doesn't mean changes can never be made, but they will have to be deferred until after licence issuance) There is no requirement to maintain any specific personnel/employees, although we often see the purchaser retaining the services of some of the existing personnel, at least through a transitional period. ARP availability can be critical to prospective buyers. The ability to obtain 2.0 sales authority without having to go through a licence amendment process can make a material difference to projections. The ARP is the only way that a purchaser (of assets) can close on an 'active' site. Without the ARP, all cannabis must be removed from the site before closing, the purchaser's licence application cannot be filed until after closing (and after revocation of the vendor's licence), and no cannabis can be brought back to the site until the purchaser's licence is granted - meaning, there will be at least several months of site dormancy after closing. Vendors should seek guidance on the extent of operations that must be maintained (or re-established) to ensure ARP availability. Where working capital is an issue, the purchaser can assist with the provision of funds and/or services required to keep the site in an operational state during the pre-closing phase. In Part III, I'll discuss the mechanics of how ARP licensing works.

23

Fired employees with fixed term contracts have a duty to mitigate their losses - in B.C. The British Columbia Court of Appeal recently confirmed that terminated employees have a duty to mitigate their losses regardless of whether they are on a fixed term contact or one of indefinite term. In Mac’s Convenience Stores Inc. v. Basyal, 2025 BCCA 284, Madam Justice Fenlon considered whether this duty exists and confirmed that it does. She noted that Ontario jurisprudence has reached the opposite conclusion. In Howard v. Benson Group Inc., 2016 ONCA 25, the Ontario Court ruled that Ontario employees are not required to mitigate their losses when terminated from a fixed term contract. But in B.C., the law does require employees to mitigate their losses regardless of whether they have a fixed term or not. Interestingly, the court noted that, for this particular situation there was a significant likelihood that the employee(s) would not be able to mitigate because they were in the country on temporary work permits which only let them work in specific locations. But that engages the test of whether the employee took sufficient steps to mitigate their losses losses, not whether they had a duty to mitigate. The employer will have the burden to atttempt to show that employees failed to meet that duty to mitigate. In this particular case, the court acknowledged that “the barriers to mitigation appear to have been significant . However, that practical reality is not determinative of whether a duty exists.” In Ontario this entire evaluation would be skipped because there is no duty for employees on fixed term contracts to mitigate their losses before being entitled to the value of the balance of their fixed term contract. Whereas in B.C., it’s now confirmed that employers can avoid having to make that contractual payment - if they can meet the high burden of demonstrating the emplyee’s failure to mitigate their losses. #employmentlawyer #dutytomitigate #roblaw Message me in the comments if you would like a copy of the decision.

25

3 Comments

Enforcing a franchise non-competition clause in Canada is rarely straightforward - and it is not a slam dunk for either side. In this short video, I dive into why evidence is your most critical asset when enforcing or challenging a non-compete covenant. I cover: * Franchisors: What “building materials” franchisors should present - the nature of customers, replacement timelines, misuse of confidential playbook - to turn a non-compete clause from a "sketch" into a "structure". * Franchisees: Why tweaking a name or menu is just "repainting the façade", and what proof franchisees need to show their operation really is different. * Alternative dispute resolution: When to lean into mediation or arbitration. And yes, I’ve even heard the rumour in Alberta that “$20,000 and a lawyer can get you out of a non-compete.” (I wouldn't bet on it...) These cases are rarely black and white. The evidence you gather - and when you gather it - will shape the outcome.

18

1 Comment

B.C. Court of Appeal confirms that payments made by an owner to a contractor after notice of a subcontractor lien do not reduce the “amount owing” for lien purposes, potentially requiring payment into court of both the holdback and the lien amount. Learn more in our latest bulletin: https://bit.ly/4apNHaU #ConstructionLaw #BlakesMeansBusiness

11

After years of practicing law, it still surprises me that the number one reason shareholder agreements fail is that most companies simply don't have one. Just like marriage, most couples skip the prenup. But here's the critical difference... While your marriage may end in divorce, your business relationship will eventually be tested. That's not pessimism. It's certainty. Corporations can live for eternity. Your business relationship, however, is certain to come to an end. At some point, someone will want to sell, need capital, stop performing, or die. When that moment comes, you'll either have a document that covers you, or you won't, and wish you did. The second most common problem is that most shareholder agreements are subpar. Clients often come to us, asking for "just a standard agreement," as if such a thing exists (although I will admit that we are working on it). Does your business partner need to offer you their shares before selling to someone else? What happens if they die? Are you suddenly in business with their estate (and heaven forbid, their families)? Can you force out an underperforming partner? Can you force a buyout? Should you include a shotgun clause? If you talk to most successful business people, they'll tell you their shareholder divorces are where the real pain points come from. Like an imploding marriage, they are expensive. Time-consuming. Gut-wrenching. Your shareholder agreement is insurance you will use someday. Trying to negotiate after the fact rarely ends well. Don't wait until you need it to find out you don't have one. #ShareholderAgreements #BusinessLaw #Lawyerpreneur #OutsidersLaw #Calgary

30

3 Comments

A bit of a PSA: I know there are some folks who practice through giving fee splits to consultants (billed as 'administrative fees'), but I wanted to educate on why it is essential to build separation - as a FIRM PRACTICE. When a consultant represents a client (when anyone represents a client, frankly), the resulting negative decision may have to be reconsidered, appealed, or judicially reviewed. As part of that process procedural fairness consideration - or in front of some tribunals (and Courts), specifically "incompetence of counsel" is on the table. Even with the best consultant/former lawyer in mind, professional obligations may require the bringing or at least canvassing of this argument. If the lawyer is advising the client through the consultant or, worse yet, paying the consultant, to try and resolve the negative decision, herein is where the potential conflict of interest is created. However, the consultant/former lawyer may want to have their own legal counsel, in the event there is an allegation of incompetence or some sort of regulatory body complaint against them. We are happy to advise either clients, making incompetence allegations, or consultants/lawyers/paralegal's facing them - but we cannot do both on the same file.

17

Important notice for Toronto Court Filings Effective October 3, 2025, at 5:00 p.m., Justice Service Online (JSO) will be decommissioned for Toronto filings. The new Ontario Courts Public Portal (OCPP) will go live on October 14, 2025. All electronic court filings for Toronto must be submitted through the new portal starting on that date. The OCPP will replace JSO for online filing, fee payment, case search, and more. During the transition period, urgent and time-sensitive filings may be submitted by email directly to the courthouse. Counter services will remain open for in-person filings in Toronto, with expanded hours of operation from 8:30 a.m. to 5:00 p.m. If your submission is rejected between October 3 at 5:00 p.m. and October 13, please note that you cannot re-submit through JSO. You must either submit by email (if time sensitive), attend in person at the courthouse, or wait until the OCPP launches on October 14 to re-file electronically. The Ontario Superior Court of Justice and Ontario Court of Justice will each issue a practice direction with further information, prior to the launch date.

22

3 Comments

Some lawyers are still living in 2019. Or maybe they’ve discovered time travel and just aren’t telling us. 🕰️ Every time I review a new SSA or SHA, I hope it’ll be different. That just this once, the definition of “Act” won’t take me back to law school nightmares. But no. There it is again: “Companies Act, 1956 or Companies Act, 2013, to the extent in force…” For the record, yes, there was an interim period between 2014 and 2019 when provisions of both Acts coexisted. But that ship sailed six years ago. It’s 2025. The 1956 Act is no longer “in force.” Not even partially. Drafting expertise is great. But knowing the law? Slightly important too. Update your templates. Let the ghost of 1956 finally rest. 🪦

316

16 Comments

Defamation cases often attract the thing plaintiffs seek most to avoid: Media attention. It’s one of the things plaintiffs need to be prepared for. When you take a defamation claim to court, the spotlight doesn’t dim - it can intensify. => The allegations are shared again. => The defamatory imputations are analysed, repeated, sometimes sensationalised. It can compound the harm - the wider the reporting, the greater the reputational damage, and that can go directly to the question of damages. It can mean more public scrutiny of your case, your conduct, and your reputation. Plaintiffs need to be ready for that: what it feels like to be under that kind of scrutiny. A defamation case means looking beyond only the legal aspects. It also means preparing our client at a very early stage for what might be ahead.

16

2 Comments

Imagine being interviewed in a way designed to make you feel cornered, powerless — even guilty. An Ontario Court of Appeal decision recently called out a problematic interview technique used in a criminal investigation — the Reid Technique — for creating an "atmosphere of oppression" that led to a miscarriage of justice. While the court stopped short of banning the technique, it’s a great reminder of the consequences when interviews are conducted in ways that are coercive or disrespectful. We don’t use the Reid Technique in workplace and regulatory investigations….. and for good reason. Our role isn’t to extract confessions — it's to gather facts, fairly and respectfully (and there’s great Canadian jurisprudence outlining what's considered fair). Best practice involves collecting evidence with neutrality and impartiality, treating participants with empathy, ensuring they feel safe, heard, and able to participate fully in the process. It also means recognizing how power dynamics and prior experiences can affect how someone engages with an investigation. Here’s a few of the many takeaways for workplace and regulatory investigators: ·     Good process leads to good evidence ·     Interview techniques matter – it’s not just what you ask, but how ·     Trauma-informed practices aren’t optional (psychological safety matters). ·     Participants should know why they're being interviewed, what to expect, and how their information will be used At Barker Hutchinson these principles guide each of our investigations. This decision is a good reminder of why it matters. #workplaceinvestigations #humanresources #proceduralfairness https://lnkd.in/gG-jBNMX

33

4 Comments

Should I accept this settlement offer? I've been asked that question at least once a week for the past 20+ years. Berore you rush into a decsion, ask: 🔹 Does it meet your objectives – is it about money or making a point? Risk or reputation? 🔹 What’s the realistic cost-benefit? Compare the costs of litigation (including the risk of loss and paying costs) vs. what’s on offer. 🔹 How much time will you save? Litigation delays can drain resources. 🔹 What’s the risk profile? Settlement offers certainty – courtrooms don’t. 🔹 Are stakeholders aligned? Think board, shareholders, customers, investors. Treat the offer like selling shares or an asset. Analyse it. Manage it. Then decide. #legalstrategy #disputeresolution #projectmanagement #litigationrisk #settlementstrategy #tauruslegalmanagement

9

1 Comment

On September 8, 2025, the CRA reminded businesses that online mail is now the default for most correspondence in My Business Account - new accounts since May 12, 2025 and existing eligible businesses since June 16, 2025. Practical steps for owners & advisors: 1. Turn on email alerts and keep them current; you can consider adding up to three email addresses per program account (e.g., controller, external CPA, counsel). 2. Ensure your authorized representative actively checks mail via Represent a Client (RAC). 3. Know the exceptions: businesses without My Business Account access (and no authorized rep), certain non‑resident situations, and charities may still receive paper correspondence by default.

16

1 Comment

In a recent case, the Ontario Superior Court of Justice deducted 3 months from the employee’s notice period due to the employee’s failure to produce a Notice of Assessment covering the mitigation period.   Andy Pushalik and Simmy Sahdra analyze Boyle v. https://ow.ly/SbFg30sMsZM share key takeaways for employers.   Read more: https://ow.ly/Tuom30sMrGT #EmploymentLaw #LabourLaw #OntarioSuperiorCourtofJustice #NoticeofAssessment

10

Our partner Moya Graham met with Lexpert to unpack how proposed changes to Ontario’s civil rules process could reshape civil litigation and accelerate business law and corporate dispute resolution. Read the full conversation in the Lexpert Special Edition - Litigation 2025 ➡️ https://lnkd.in/e6hyGrrA

12

Threatening insolvency is an easy way to enforce an award. It's quick, effective and has some serious downsides: (1) Loss of control: if the other side is made insolvent, a liquidator will take over control. They will investigate the company's affairs to determine the money available to pay creditors. (2) It takes money to collect money: Liquidators' work takes time, and they like to be paid. Typically, they are paid out of the company's funds, further reducing the amount available to pay you. (3) Other creditors: Any other creditors will also make sure the liquidator considers their claims. You may be the one who triggered the insolvency, but at the end of the day, you may be a minor creditor. Often intra-group debts are the dominant debt in any insolvency. (4) One of many: When the liquidator turns assets into cash, they will pay the secured and priority creditors first. Award debtors are unsecured creditors and will be treated equally with other similar creditors. You get an equal share that is pro-rata to the value of the debt (e.g. 10 cents on the dollar). (5) Good money after bad? Liquidators may find that the company has a claim against a third party, but the company lacks the funds to pursue it. They may ask creditors to cover the costs. If you win, this increases the funds available to all creditors (e.g. everyone's take goes from 10 cents to 20 cents on the dollar). If you lose, the pot gets smaller. One of the most critical decisions if you're going to enforce an arbitration award is deciding where the tipping point is to begin insolvency proceedings. ____ If you want more of these insights sign up for my newsletter: https://lnkd.in/g_mQDNGB ____

37

2 Comments