Shibley Righton LLP has a long standing reputation for its results-oriented advice to business clients. That tradition continues today, with a focused team of professionals long on knowledge, legal and business experience, and particularly strong on reacting quickly and creatively to solve client issues. We strive to deliver legal services on a basis that emphasizes our team approach to bring together the skills required for each particular transaction in a manner that minimizes costs.
Our business law team carries on a full-service practice, including:
While our business law team is well known for its work with small and medium-sized enterprises, as well as its expertise relating to private and junior public companies, it also acts for larger and multinational companies and governmental agencies. In addition, our business law team regularly acts as local counsel for non-Canadian law firms whose clients are carrying out transactions in Canada or need Canadian legal advice.
A new government-backed capital fund is a good opportunity for underserved small and medium-sized businesses to get access to expertise as well as cash, says Toronto corporate and commercial lawyer Marlin Horst.
A number of financial institutions, including the country’s biggest banks, have teamed up to create the Canadian Business Growth Fund, which aims to make available up to $500 million over the next year to help smaller companies grow. If it takes off, the fund will double in size over the following nine years.
The fund’s sponsors have also promised to provide advice and mentorship to businesses so that they can reach their potential.
Horst, a partner in the Toronto office of Shibley Righton LLP, says a large swath of early stage Canadian businesses are caught in the gap between angel investment funding — unavailable to all but a select few — and the public markets, which tend to be a viable option only for larger, more established companies.
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Canadian subsidiaries can rest easier after the Ontario Superior Court ruled that Chevron Canada can’t be held financially liable for a judgment against its American parent company, says Toronto business lawyer Joel Berkovitz.
“This was a case about whether the assets of a subsidiary can be seized to satisfy a judgment against the parent company and the court here conclusively said, ‘No,’” says Berkovitz, a lawyer with Shibley Righton LLP.
In Yaiguaje v. Chevron Corporation, 2017 ONSC 135 (CanLII), the court ruled that Chevron Canada is a separate entity from the Chevron Corp. and, therefore, not responsible for any judgments against the parent company.
The Chevron case began in 1993, after roughly 30,000 Ecuadorian villagers alleged that Texaco, now owned by Chevron, dumped billions of litres of toxic oil-drilling byproducts into the environment. They alleged the toxins caused increased health problems, including more frequent cancer deaths and a higher rate of miscarriages.
In a 2011 decision, Ecuadorian courts ordered Chevron to pay the villagers US$9.5 billion. But Judge Lewis Kaplan of the United States District Court for the Southern District of New York found, following a seven-week trial, that there were extensive acts of fraud, bribery, forgery, intimidation and collusion in the Ecuadorian proceedings. Chevron has refused to pay the Ecuadorian judgment.
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It is not unusual for law firms to negotiate split-fee agreements that account for lawyers moving on after they have worked on contingency fee matters, Toronto business lawyer Bill Northcote tells Law Times.
“Some firms have got very elaborate compensation systems that reflect the division of an award,” says Northcote, chair of Shibley Righton LLP’s business law practice group.
“Usually, they’re worked out internally without much public scrutiny.”
However, as Law Times reports, one Toronto litigation and corporate law boutique is suing a former non-equity partner in the firm for $9 million after a dispute over a contingency fee client. The law firm alleges the lawyer breached his contract and fiduciary duty to the firm, claiming he “improperly solicited” some of its clients when he resigned in 2015, including a property development company.
The lawyer denies the claims and is demanding $1.1 million from the firm, alleging it owes him for work he did on the file, says Law Times.
Last year, the law firm also sued the property development company, seeking payment for its success at a 2014 trial. The lawyer won intervener status, asking the court to order any funds received by the firm to be paid into court for his benefit, says the article.
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CASL, which applies to promotional emails, instant or text messages, and other electronic information platforms, will extend to social media communications in certain circumstances, he tells AdvocateDaily.com.
"There are exceptions, but the anti-spam provisions are for commercial messages that are sent to electronic addresses. A promotional post on a business or professional's Facebook wall would not amount to a commercial electronic message under CASL because it's not being sent to any particular recipient's electronic address," Murphy says. "Similarly, posting a photo on social media, liking a post or tweeting would not fall under CASL, even if done as part of a business promotion because the communications are not sent to the recipients' electronic address.
He says CASL will apply if the social media app is used to send a promotional message to specific users' electronic addresses, provided one of the exceptions doesn't apply.
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The consumer backlash over LoyaltyOne’s plan to void Air Miles that are five years or older is a lesson for companies considering changes to their reward programs, says Toronto business lawyer Joel Berkovitz.
People are fiercely resistant to giving up any benefits they’ve accrued in loyalty programs and companies should expect customers to respond very negatively to any attempts to claw them back, he tells AdvocateDaily.com.
In December, a private member's bill to prevent expiry of loyalty points passed on third reading in the Ontario legislature with a vote of 77-0, and became law under the Consumer Protection Act, reports the Globe and Mail. Shortly before Bill 47 became law, LoyaltyOne announced it was backing down and would allow members to keep any Air Miles they hadn’t already used, explains Berkovitz, a lawyer with Shibley Righton LLP.
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Toronto technology and business lawyer Peter Murphy admits many law firms could benefit from new information technologies, but he doesn’t advise them to rush into projects without aligning them to the firm's objectives through a solid business case.
Murphy, a partner with Shibley Righton LLP, says when he started out, email was the new kid on the legal technology block. Much has changed over the last two decades, but because of the nature of their profession, lawyers often view new developments in technology with suspicion.
A recent Ontario Court of Appeal decision that extends the “business judgment” rule to condominiums will give condo corporations broader protection when facing legal challenges by owners, says Toronto business and condominium lawyer Joel Berkovitz.
In the past, courts have issued rulings that demonstrate deference to condo boards’ decisions, but this was one of the first that expressly applies the business judgment rule, he tells AdvocateDaily.com.
“It gives cover to the condo corporation that as long as their decisions are reasonable, the courts won’t step in to overrule their decisions,” Berkovitz says.
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As it can be daunting to take on the role of repairing a dysfunctional executive team, a new CEO should start by ensuring that those in the C-suite have clear roles and responsibilities, Toronto business lawyer Bill Northcote tells Succession Planning, a special supplement published by The Bottom Line and Lawyers Weekly.
“A lack of clarity can lead to conflict and competition. Infighting and politicking are signs of dysfunction,” says Northcote, chair of Shibley Righton LLP’s business law practice group.
“There will always be some competition,” he says, “but the role of the CEO is to get strong people to perform and co-operate" and to identify stakeholder groups and their interests to get a full understanding of how the organization works.
As law firms grow to meet client needs, they often consider joining a firm network or expanding internationally, but Toronto business lawyer Bill Northcote poses an interesting question in Lawyers Weekly: are networks and global firms competitors, or do they serve separate markets and clientele?
As Northcote, chair of Shibley Righton LLP’s business law practice group says in the article, the 18 largest law firm networks each include more than 7,000 lawyers and have members practising in 80 to 100 separate jurisdictions. The largest law firm is Dentons, which reportedly has some 7,000 lawyers in 52 jurisdictions.
While the two concepts often compete for the same business, Northcote says, there are distinct differences.
“Law firm networks are generally non-exclusive, informal, relatively inexpensive to participate in and have a modest number of staff and overhead. Within these networks there is considerable diversity in size, geographic scope, membership fees and non-legal resources available to members,” writes Northcote.
Since the first law firm network was created in 1989, over 150 law firm networks have been formed and are in active operation.
Some large law firms have become “national” and “international’ by opening branches in other domestic and foreign jurisdictions and practising not just the law of their “home” jurisdiction but local law as well.
As law firms strive to fulfil client needs and compete they need to consider whether to become international or to become a member in a network. Are the networks and the international law firms competitors of each other or do they serve separate, distinct markets and clientele?
The 18 largest law firm networks generally each comprise more than 7,000 lawyers and have members practising in on average about 80 to 100 separate jurisdictions. In contrast, the largest law firm (by number of lawyers) is Dentons, which reportedly has about 7,000 lawyers in 52 jurisdictions.
Adam Cooke, the executive director of Multilaw, one of the largest networks, points out:
“Generally large international law firms seem to have extreme difficulty in expanding beyond about 50 jurisdictions. Law firm networks don’t have that problem because they are more nimble and can recognize that some jurisdictions, particularly newly industrializing countries, are importers of legal works while some, particularly the United States and the EU, are exporters of legal requirements. In a network both functions are highly valued.”
The rise of formal law firm networks mirrored the growth of international trade (and the resulting increase in international litigation) which first occurred in large business entities but which increasingly is an integral part of the businesses of small and medium sized enterprises.
These same forces have driven the diversification of large international law firms as they opened offices in new jurisdictions to meet client requirements.
Of course the two are quite different. Law firm networks are generally non-exclusive, informal, relatively inexpensive to participate in and have a modest number of staff and overhead. Within these networks there is considerable diversity in size, geographic scope, membership fees and non-legal resources available to members.
In contrast, large international law firms are exclusive and have significant overhead but can deliver a worldwide brand and a more closely integrated billing process. For many clients, particularly small and medium sized enterprises, law firm networks have more affordable legal fees and generally more ready access to senior lawyers. International law firms have the advantage of larger marketing budgets used to build brand awareness and pitch the largest of cross-border transactions.
While it is tempting to say that small and medium size enterprises gravitate to networks while large multinational corporations are serviced by international law firms, it is not so simple. Often the two compete for the same business.
Indeed, Dentons seems to have recognized the shortcomings of its business model when it announced in May the formation of Nextlaw Global Referral Network that it touts as a new form of network, one without membership fees or territorial exclusivity. Its stated goal is to recruit, vet and admit a large number of law firms as members in the next few months, clearly a very ambitious and costly goal, particularly when no application or membership fee is charged. The attraction to applicants is obvious — the possibility of referrals with no cost. Hope Krebs, Multilaw’s chair, believes that: “…this is a way for Dentons to expand its relationships with law firms in other jurisdictions. It is implicitly an acknowledgement that their growth within a single law firm structure can be difficult and not sustainable. For example the conflicts of interest that arise in a single large law firm are frequently insurmountable.”
Michael Siebold, the chair of Interlaw, another large law firm network, disputes Dentons’ focus on the negative effects of territorial exclusivity: “Our member firms are sometimes part of other referral networks — my own firm being a case in point — firstly because they are completely independent, and secondly because Interlaw is so much more than a referral network… Finally, paying membership dues covering the cost of a very lean management appears to be normal procedure, and even fully integrated international firms need to make contributions for marketing, business development, etc., and I believe Dentons follows the same model.”
The most recent trend in law firm networks is a focus on internal quality assurance programs, in part, in response to the brand equity enjoyed by the large multijurisdictional law firms.
In essence, law firm networks can flourish by providing international legal services in a cost-efficient manner to small and medium sized enterprises through reduced overhead and simpler structures, while international law firms can provide a more integrated offering (including invoices covering multiple jurisdictions) but at a greater cost due to higher hourly rates and more overhead which is less significant in only the largest international transactions and “bet the company” international litigation. Between these two extremes the two compete.
Even covers can be infringement, lawyer says, let alone staging three numbers from a smash-hit Broadway musical like a Scarborough, Ontario high school did.
Lawyer Bill Northcote has a message for the high school students and teachers in Scarborough, Ont. who staged three numbers from the hit Broadway musical Hamilton, only to have them removed from YouTube:
Be willing to wait for it.
The musical — a hip-hop retelling of the life of American founding father Alexander Hamilton — is not yet licensed for amateurs.
Reproducing it is infringement under the Copyright Act, said Northcote, chair of business law at Shibley Righton LLP in Toronto, and it doesn’t matter that the play is American. The rules are essentially the same.
The singing, rapping and dancing chops of students from Wexford Collegiate School for the Arts earned accolades from around the Internet before the videos were taken down at the request of Hamilton’s PR rep Thursday.
Although a takedown request or cease-and-desist letter usually does the trick in cases like this, the copyright owners could be within their rights to get a court order preventing the school from performing Hamilton any more and could seek damages (monetary compensation) for its unauthorized use, Northcote said.
That is, unless the Wexford kids could successfully argue they qualify for an exception.
One way would be through fair dealing: Copyrighted works may be used for research, private study, education, parody or satire.
Just how much copying is fair is defined case-by-case. Even a cover of a single song can be infringement, and “reproduction of the whole work is certainly not fair,” in the case of a musical, Northcote said.
There’s also a special exception for performances at schools.
But the show has to be primarily by students, for an audience of mainly students and teachers, on school property and not put on for profit. That’s why lip-syncing to the Spice Girls at your school talent show is OK.
But Wexford students performed for the media and posted recordings to YouTube.
The more people see a grifted work, the higher the damages could be, Northcote explained.
Wexford's rendition of the song Right Hand Man had 21,000 views.
This was students' and teachers' “love letter” to Hamilton, the school’s artistic director Ann Merriam told Torstar News Service. They wanted to catch the attention of its cast and creators.
But they hoped it would be in a positive way.
That’s not the same as waiving intellectual property rights, Northcote explained, but could encourage “a false sense of comfort that he won’t mind.”
It’s reasonable to hold off on allowing amateur productions, Northcote added, especially while Hamilton is still booming on Broadway. It’s part of the creators’ rights to cash in on the time and effort they put into making it.
U.S. and international tours of Hamilton are planned into 2018 and beyond. So it will likely be years before it’s heard at high schools. Current secondary students — young, scrappy, hungry and Hamilton-crazy as they are — may not get their shot at it.
This story appeard on metronews.ca
Whether caused by criminals, political hacktivists or human error, data breaches have become a frequent occurrence. New causes of action for breach of privacy have ncreased the potential for related damage awards, making data breach one of the most significant risks faced by Canadian organizations. An organization may influence its level of data breach risk when contracting for information servi-ces. Cloud computing, software-as-a-service and more traditional forms of information technology services involve placing the organization’s data in the hands of a third-party vendor. This data sharing creates an opportunity for the organization to manage its data breach risk through under-lying services agreements.
For those building a successful business, it can be hard to also maintain good family relationships — the key is to draw a distinct line between the two, Toronto business lawyer Bill Northcote tells Succession Planning, a special supplement published by The Bottom Line and Lawyers Weekly.
“Every family dynamic is different and every family business is different, so there are many possible causes of friction. The trick is to try to divorce the family dynamic from the business dynamic, and some families are better at this than others,” explains Northcote, chair of Shibley Righton LLP’s business law practice group.
Toronto lawyer Marlin Horst says he finds corporate lending work intellectually stimulating and most enjoys putting together the “pieces of the pie.”
“What’s interesting to me is making sure lenders are getting security over the assets that they need to have security over. That then becomes a bit of a puzzle as to what goes where and how to ensure you have the best possible security and that the assets can’t leak out of your security box.
“It’s intellectually stimulating from that perspective,” he adds.
The Panama Papers scandal should prompt law firms, and other professional services firms, to update their electronic security measures, says Toronto business lawyer Joel Berkovitz.
Panamanian law firm Mossack Fonseca, which specializes in the creation of offshore companies, claims it was the victim of a hacking in the massive leak of its client files — a reported 11.5 million documents covering a 40-year period — turned over to journalists from news outlets around the world.
News that Canadian residents will no longer be able to apply to appear on Jeopardy! due to international privacy law concerns is likely just a way for the popular TV quiz show to avoid the burden of investigating and complying with Canadian law, Toronto business and entertainment lawyer Bill Northcote tells AdvocateDaily.com.
Global News reports the quiz show hosted by Canuck Alex Trebek has long accepted Canadian contestants but as of this year, Canadians are shut out from applying for the time being. In a statement, the show’s producers stated:
A recent decision that ruled a reader had violated new provisions of the Copyright Act when he bypassed a publication’s paywall to access an article raises questions about technological neutrality, as similar facts in the analog world would yield a different result, Toronto business lawyer Bill Northcote tells Law Times.
As the article reports, 13595804 Ontario Limited (Blacklock’s Reporter) v. Canadian Vintners Association (CVA) centred around a subscription-only news publication focused on the workings of Parliament, which quoted the president and CEO of the CVA. Although the CEO was concerned about “inaccuracies” in the preview, he was unable to see the full story behind the paywall, and asked a subscriber friend to send him a copy.
When he contacted the publisher to discuss the story and disclosed how he managed to view the article, he soon received a letter alleging a breach of copyright, as well as an invoice for two subscriptions. After refusing to pay, Blacklock’s took the case to Ottawa Small Claims Court, winning $11,5000 plus $2,000 in punitive damages, says the article.
Deputy Judge Lyon Gilbert ruled that the fair dealing exception to copyright infringement was not available to the winemakers’ group “because it had violated the new technological protection measure provisions of the Copyright Act when bypassing the online publication’s subscriber paywall to access a news article,” Law Times reports.
As Northcote, chair of Shibley Righton LLP’s business law practice group, says: “If I buy a newspaper, and you ask to see an article about you in it, there is no copyright infringement there in the traditional analysis.”
Northcote also tells Law Times that he was troubled by the suggestion in the judgment that something must come of research or private study in order for that fair dealing purpose to be considered genuine.
“There are all kinds of good tactical reasons why you may decide to do nothing with your research, rather than getting into an argument with a publisher,” he says.
Northcote says the CEO’s call to Blacklock’s publisher to discuss the story could be regarded as the sort of action the judge found lacking, adding that the punitive damages award “seems excessive.”
This article appeared in the Vol. 5, No, 2, 2015 edition of Succession Planning, a publication of The Bottom Line & The Lawyers Weekly.
Transitioning out of professional practice through a two-step arrangement can help ensure a level of continuity, but there is no guarantee clients will want to move over to the incoming firm, says Toronto business lawyer Bill Northcote.
“Ultimately the clients have got complete autonomy. If the client says ‘you’re moving to X law firm, but I don’t want to go there,’ there’s nothing you can do about that,” Bill Northcote,, chair of Shibley Righton LLP’s business law practice group, says in Succession Planning, a special supplement published by The Bottom Line and Lawyers Weekly.
Bill makes his comments in an article about the recently released report, "Business Law Agenda: Priority Findings & Recommendations Report."