A recent British Columbia case, again states the law on ownership of a pet. This was a claim for a declaration of ownership of a dog. The judge reviewed Warnica v. Gering, in which the Court noted:

          “Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view, that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.”

The judge then decides that he does not have jurisdiction to make a custody or access order with respect to a dog and a careful review of the evidence indicates that in fact the defendant was the sole owner of the dog and that the plaintiff’s interest was merely a sentimental, one and that does not bestow any right of possession upon him and his claim was dismissed.

If you do not have a Power of Attorney for Personal Care and you become incapable of personal care decisions, a guardian of the person may be appointed by the court in the same manner as a guardian of property. A guardian of the person has extensive powers including the power to make decisions regarding your living arrangements, recreational activities, treatment, health care and nutrition.

The Public Guardian and Trustee may be appointed as your temporary guardian of the person where it reasonably believes that you are incapable of managing your person in the same circumstances and by the same procedure in which it may be appointed as temporary guardian of property.

The value of a Power of Attorney for Personal Care is that you can be certain about the choice of person who is to act as your attorney.  It is also faster, easier, and less costly to establish than a court-appointed guardianship.

This was a motion before Justice Walsh of the New Brunswick Court of Queen’s Bench, in a custody dispute. The mother suddenly died and the grandparents were making an application for custody.  The respondent was the adoptive father of the child. The father was found to be evading service.

The issue for the Court was whether there could be substituted service of the custody application.  The Court found that it was in the best interests of justice and the child that service be substituted. The Court went on to find that service of the notice of the application was effected as a result of exchanges between the parties by way of Facebook.

This is yet another decision that reaffirms substituted service can be available by Facebook and perhaps other social network sites.

If you are unable to give or refuse consent to treatment and you do not have a Power of Attorney for Personal Care, immediate members of your family will have a right by law to make treatment decisions for you. The law provides for a hierarchy of decision-makers: the spouse, then the parents, then the children, then brothers and sisters. If none of your relatives are willing and able to give or refuse consent to treatment, the Office of the Public Guardian and Trustee (a government agency) will make these decisions.

Justice Murray previously ordered that the evidence in chief go in by affidavit, in order to speed up the case and make effective use of the court’s time without losing any of the benefits of oral testimony.  When the evidence goes in by affidavit, the affiant must be presented for cross examination. In this case, since the party lives in Denmark, it was requested that the cross examination take place by Skype.

Justice Murray recognized that evidence at trial should be presented orally. However, modern technology, such as Skype, allows instant communication, does not seriously hamper cross examination and allows the judge to observe the demeanour of the witnesses.

There are a number of cases on this issue and they were reviewed by Justice Murray. In the end, Skype was allowed.

A step toward a new technological age in the court!

A person with mental capacity may appoint one or more attorneys for personal care to make decisions about personal and health care and to give consent to treatment, but the attorneys may act only if and when the person is unable to make such decisions on his or her own. The determination of whether a person is capable of making decisions is usually made by one or more medical practitioners.

You can provide for alternates to act if the person you appoint as your attorney for personal care is unable or unwilling to act. The only restriction on the appointment of an attorney is that you may not name a person who provides you with healthcare or residential or social advocacy support services for compensation.

You can instruct your attorney to consult with family or friends before making a decision, but it is best to stipulate that the final decision must be made by the attorney alone. Generally, the attorney must make the decision in the best interests of the person who is incapable, as that decision would be made if the person were capable. To do this, the attorney can follow either explicit instructions, prior discussions and conversations with the incapable person, or in the absence of instructions or prior discussions, by making a judgment based on the known values, interests and concerns of the person.

If you appoint more than one attorney, you should either appoint the attorneys jointly (where all must act together), or jointly and severally (where all may act together, but each may act independently). You can provide for decision-making to be made by more than one attorney by teleconference, for urgent situations or where one or more attorneys may not be available.

You can specify your wishes in a Power of Attorney for Personal Care, including personal care instructions. You may include a general instruction that the attorney is to arrange whatever services or care are necessary to keep you comfortable, keeping in mind financial resources, or to remove you from your home and place you in a long-term care or other health institution if the attorneys are satisfied that that is in your best long-term interests, including emotional, physical, spiritual and economic interests.

You may also give instructions relating to treatment under specified circumstances, such as a situation where you are suffering from injury, disease, illness or long-term intolerable pain.

Some choose to prioritize relief of suffering and provision of comfort over the prolongation of a diminished quality of life by using wording such as:

“If I have been diagnosed with an irreversible terminal illness and I am in pain, my pain is to be managed by sufficient medication or other palliative care treatment as may be required to alleviate my suffering, even if such treatment may have other detrimental health consequences or may have the effect of shortening my life. The priority for my medical treatment shall be relief of suffering and provision of comfort, rather than the prolongation of a diminished quality of life.”

If you do not appoint a Continuing Power of Attorney for Property and you become incapable of managing your property the court may, on any person’s application, appoint a guardian of property to make necessary decisions regarding your property on your behalf.

When appointing a guardian of property the court will consider your wishes, if they can be ascertained, and the closeness of your relationship to the proposed guardian.

In addition, the intended guardian will be required to disclose his or her financial circumstances, abilities and experience, and to present a formal management plan, first for approval by the Public Guardian and Trustee, and then by the court. The guardian will also be subject to regular accounting to the Public Guardian and Trustee and to the court, at least every 3 years, but sometimes as often as annually if required by a beneficiary, the Public Guardian and Trustee or the court.

If no one makes an application to appoint a guardian of property and the Public Guardian and Trustee conducts an investigation and, as a result, has reasonable grounds to believe that you are incapable of managing your property and that prompt appointment of a guardian of property is necessary to prevent serious adverse effects, the Public Guardian and Trustee may apply to the court to become your temporary guardian of property.

The process for appointing a court appointed guardian of property is more expensive and more cumbersome than appointing a Continuing Power of Attorney for Property, and it necessarily involves a government agency and oversight.

A guardian of property has the power to do anything with your property that you can do, except make a Will. The value of a Continuing Power of Attorney for Property is that you can be certain about the choice of person who is to act as your attorney.

When you buy assets, you can buy all of them or pick and choose which assets you wish to acquire.  If there is a piece of equipment you do not need or a lease you do not want to take on, you will not acquire them.  If you buy shares on the other hand, you take on everything – all the assets and all the liabilities.  These could be known or unknown.

As there is greater certainty about liabilities when buying assets, there is less due diligence to do.  You generally want to ensure that there are no liens or encumbrances against the assets you are buying and if a third party must consent to the assignment of the asset; you want to be sure that the consent is obtained. Often the documentation needed for an asset purchase transaction is less complex than a share purchase transaction.

If there are employees involved, you must be aware that you are likely to become the successor employer regardless of the type of transaction.  The Ontario Employment Standards Act protects the seniority of employees and with the purchase of a business you generally buy all of the severance obligations owing to employees.

In Ontario, buyers of assets need to be aware of the Bulk Sales Act.  All or substantially all of the tangible assets of a business cannot be sold without providing for how creditors will be paid.

The structure chosen is often driven by tax advice so it is important to get such advice early.

As a result of the implications outlined above, many buyers prefer to buy assets rather than shares.  And may sellers prefer to sell shares.  There’s a lot more to negotiate than the price.

The Federal Court of Canada rendered a decision on March 28, 2012 permitting the registration in Canada of sound bites as trademarks under the Trademarks Act.   The case was brought by Metro-Goldwyn-Mayer Studios after its application to register the lion’s roar that accompanies its logo at the start of films was rejected by the Canadian Intellectual Property Office.  The CIPO long insisted that sound could not be registered as a trademark, only visual representations (such as words and logos).  The Federal Court disagreed and has therefore opened the door to applications for registation of sound marks.

CIPO has published a notice on its website setting out the requirements for sound mark applications, including:

1. the application must include a drawing that graphically represents the sound;
2. the application must contain a description of the sound; and
3. the application must contain an electronic recording of the sound.  The recording must be in a WAVE or mp3 format, less than 5mb in size.