Frequently Asked Questions
Business Law
What are some methods of carrying on business?
- Sole proprietorship
- Partnership
- Co-ownership
- Corporation
- Joint Venture
- Franchises and Licences
- Not-for-profit organizations and charities
No one method is best in every situation. We can help you determine which method is best for you based on your situation and needs.
What is a sole proprietorship?
In general, a sole proprietorship exists when an individual carries on business for his/her own account without the involvement of other individuals (except employees). All benefits flowing from the business, for example assets, accrue exclusively to the sole proprietor. All obligations and losses associated with the business are the sole proprietor’s responsibility. A disadvantage of sole proprietorship is that there is no limited liability for the sole proprietor and the sole proprietor’s business and personal assets may be seized in satisfaction of the business’ liabilities. This personal liability may be limited by contract or proper insurance.
How can I purchase a business?
In general, there are two methods by which you can purchase a business. You can purchase a business by acquiring the assets of the business or by purchasing the shares of the corporation that operates the business and owns the assets of the business. We can perform the appropriate searches and advise you on the advantages and disadvantages of each method in order to determine the best method of acquisition in the circumstances.
Real Estate
What is the difference between joint tenancy and tenancy in common?
If there is more than one purchaser of real property, you will want to decide whether you would like to hold title has joint tenants or tenants in common. If title is taken as joint tenants, upon the death of one of the joint tenants, the one-half interest of the deceased person automatically passes to the surviving joint tenant. If title is taken as tenants in common, upon the death of one of the tenants in common, the property becomes a part of his/her estate and there is no right of survivorship to the other tenants in common.
Do I need a lawyer to buy or sell real estate?
Yes. Lawyers practicing real estate have authorized access to the land registry system to transfer real property from one person to another.
What is Land Transfer Tax?
The Province of Ontario requires a purchaser to pay land transfer tax on the registration of any Transfer/Deed. In general, when someone purchases land or an interest in land that person will pay Ontario’s Land Transfer Tax. The amount of the tax is normally based on the purchase price of the land. If you are a first time home buyer you may be eligible for a refund of all or part of the land transfer tax.
Wills and Estates
What is the difference between a power of attorney for property and a power of attorney for personal care?
A power of attorney for property can authorize the attorney to manage for example, the grantor’s real and or personal property. It can be restricted as to subject matter and can be limited in time, for example when the grantor becomes mentally incapable.
A power of attorney for personal care appoints a person(s) to make decisions for the grantor with respect to the grantor’s personal care (personal care may include, for example, health care, shelter, safety and clothing).
A benefit of completing a power of attorney while capable to do so, is that the grantor has the ability to choose an attorney to act on his/her behalf in the event of incapacity or unavailability. Once completed, the grantor will have the peace of mind of knowing the identity of the person placed in this role in advance.
What is a will? Do I need a will?
A will is a written legal document that outlines your wishes, including how you want your assets distributed upon your death. There are specific requirements in Ontario with respect to how a will should be signed and witnessed. A will is important to, among other things, name an Executor and to ensure your estate is administered according to your wishes.
What is an executor? What are some of the duties of an executor?
An Executor (also known as an “Estate Trustee”) is a representative appointed by the deceased in his/her will who will administer the deceased’s Estate. More than one Executor can be appointed by the deceased. If the deceased does not have a will, the court can appoint an Estate Trustee without a Will. The general duties of an Executor can include gathering the assets of the estate, protecting the assets of the estate until distributed, applying for probate from the appropriate court if necessary, maintaining the accounts of the estate, paying the debts and liabilities of the deceased and distributing the assets of the estate in accordance with the terms of the will.
Litigation
I believe that I have a claim against another individual. Is suing my only option?
Depending on the facts surrounding your case you may choose to litigate the matter or make attempts at negotiating or mediating the situation. There are many considerations to take into account when determining the appropriate approach to take in resolving a dispute.
I have obtained judgment in my case. How do I enforce it?
The Rules of Civil Procedure provide for a number of ways to attempt to satisfy a judgment. For example, a judgment creditor may seek recovery of its judgment by garnishing amounts owed to the debtor by third parties (for example, the debtor’s employer). A judgment creditor may also seek to obtain a writ of seizure of sale (writ of execution) and file it in the local sheriff’s office where the judgment creditor believes the judgment debtor has assets. The sheriff may then seize and sell the assets and distribute the proceeds to the debtor’s creditors in accordance with the Creditors’ Relief Act. If you have no knowledge with respect to the assets of the debtor, you may consider examining the debtor in order to obtain information that will assist in enforcing your judgment. There are many considerations to take into account when deciding if and how to enforce a judgment and a lawyer can help you determine the best approach to take in your particular case.
What can a mortgagee do when a mortgagor has defaulted under a mortgage?
The following are potential remedies that a mortgagee can undertake depending on the specific circumstances of their case:
- The mortgagee may sell the mortgage property under private power of sale provisions contained in the mortgage or pursuant to a court order made in a judicial sale action.
- The mortgagee may take possession of the mortgaged property privately, by a court order or by a receiver.
- The mortagee may obtain title to the mortgaged property by way of a foreclosure action or accepting a quit claim deed to the mortgaged property.
- Obtain judgment against the mortgagor and any guarantor.
The remedy that a mortgagee may choose will depend on all the relevant facts in the circumstances.