Amir Kafshdaran Law

Lawyer in Montréal - Avocat à Montréal

2010-03-23T21:13:00.003-04:00

Are you looking for a boutique law firm in Montréal, who provides its clients with a comprehensive and high quality representation in the Province of Québec, in various judicial districts such as Montréal, Longueuil, Laval, St-Jérôme, Salaberry-de-Valleyfield, Beauharnois and others, please visit us at www.ak-law.ca.

Contact us if you are looking for a lawyer for any type of litigation, legal opinion or counselling on a certain product you intend to manufacture or service you will render, business opportunity, litigation or dispute prevention, purchase of an asset, review of contracts, relationships between shareholders or other.

Amir Kafshdaran Law website

2010-03-17T21:37:00.003-04:00

Dear readers:

Visit us at www.ak-law.ca to find out more about Amir Kafshdaran Law.

Regards,
Amir Kafshdaran

Change of address

2009-09-24T12:06:00.001-04:00

Dear readers, clients and internet surfers, please take note that effective September 1st, 2009, my office address is now the following:

630 Sherbrooke West, Suite 800
Montréal (Québec) H3A 1E4
Tel: 514-303-2977
Fax: 514-303-6522

Immigration objectives in Quebec and Canada

2008-02-20T22:02:00.001-05:00

To start with, we must first clarify whether immigration is regulated by the federal or provincial governments. Section 95 ofThe Constitution Act of 1867 attributes to the provincial Legislature, or provincial governments, the powers to enact laws in relation to immigration, subject to any laws adopted by the Parliament of Canada, or the federal government, in connection with the same. Essentially, provincial laws in the matter of immigration shall apply unless otherwise repugnant to any federal statutes adopted by the Parliament of Canada. In other words, what this means is that our constitution splits the powers and competence over immigration between the federal and provincial governments.

More specifically, as for the legal landscape in Quebec and as discussed earlier, both the federal and provincial statues are applicable: the Immigration and Refugee Protection Act, a federal Act, and an Act respecting immigration to Quebec, the provincial counterpart. Therefore, in the matter of immigration, one will need to consider the foregoing laws and all of its associated regulations to be able to paint a complete portrait of the Quebec immigration legal landscape.

Now, what are the desired objectives of both the federal and provincial government of Quebec in regulating immigration? Both the Immigration and Refugee Protection Act and Act respecting immigration to Quebec objectives are similar in nature. Section 3 of the former outlines several key goals sought by the Parliament of Canada which I textually reproduce herein:

(a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
(b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;
(c) to support and assist the development of minority official languages communities in Canada;
(d) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada;
(e) to see that families are reunited in Canada;
(f) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society;
(g) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces;
(h) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities;
(i) to protect the health and safety of Canadians and to maintain the security of Canadian society;
(j) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and
(k) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.

As you can see, some of the aforementioned objectives have a political connotation and may as a result be driven by popular demand and pressures on our elected representatives. As for the Quebec Legislature, pursuant to Section 3 of the Act, reproduced integrally, the below shall guide the selection of foreign nationals in Quebec:

(a) to contribute to the enrichment of the socio-cultural heritage of Québec, to the stimulation of its economic development and to the pursuit of its demographic objectives;
(b) to facilitate the reuniting, in Québec, of Canadian citizens and permanent residents with their close relatives from abroad;
(c) to enable Québec to assume its share of responsibilities regarding the reception of refugees and other persons in a particularly distressful situation;
(d) to favour the coming, among foreign nationals who apply therefor, of persons who will be able to become successfully established in Québec;
(e) to facilitate the conditions of the stay in Québec of foreign nationals wishing to study, work temporarily or receive medical treatment, having regard to the reasons for their coming and the capacity of Québec to receive them.

Clearly, there are certain common guidelines that transpire from both the federal and provincial statues: (1) economic and social enrichment, (2) facilitate the reuniting of families, (3) strengthen the educational and scientific activities. One’s application may be more favorably treated if the applicant’s personal circumstances are in line with the above objectives as set forth in the subject immigration statues.

However, every three years, there is public consultation on the planning in respect of permanent immigration to Quebec allowing the opportunity to rebuild consensuses around the key objectives of the Quebec immigration policy. In 1990, the National Assembly unanimously adopted a policy statement further defining Quebec’s key immigration objectives: (1) recovery of its demographic situation, (2) economic enhancement, (3) protection and survival of its French character and (4) openness to the world. As a result, new wave of immigration to Quebec shall be analyzed and treated according to the immigration policy applicable at that point in time and a different weight may be given to each of the aforementioned policy objectives.

To sum up, for an applicant to be admitted to immigrate to Quebec, the society must benefit in the aggregate unless otherwise admitted for humanitarian reasons. In the event that it is viewed that an applicant may be a potential burden on the collectivity or will be unable to positively contribute to the provincial demographic recover or economic enhancement, the process may become more tedious and difficult.

I’ve briefly given you an overview of the objectives pursued by the federal and provincial government in the matter of immigration. Please remember that there are many other factors that are considered as for a legal standpoint in reviewing one’s application for immigration into Quebec. In the event you have any particular questions with respect to your own personal situation and circumstances, I highly recommend that you seek professional advice.

Investing in China’s Economic Potential

2008-02-03T10:16:00.000-05:00

I was recently at a very informative seminar on China's economic potential hosted by Clearsight Investment Program from Wellington West Capital. It is surprising to see the economic growth registered by China in the past few years and one wonders how fast and for how long would a country be able to sustain such growth.

Undoubtedly, in the past few years, there has been an immense market appreciation and as a result, many profited from such market movements. More concretely, the billionaire investor Warren Buffet, through his company Berkshire Hathaway Inc., recorded 64% increase in profits in the third-quarter of 2007 on an 800% gain on a stake in PetroChina Co. Furthermore, there are currently 106 billionaires in China, 700% higher than last year. This is just a testament to the rapidly growing economy of this country. My only question: is there a speculative bubble in the Chinese market; if so, are we anticipating a market correction?

Here are some websites you can visit for more information on this:

http://www.bloomberg.com/apps/news?pid=20601087&sid=abvy_cUjUwmI&refer=home

http://www.fin24.co.za/articles/default/display_article.aspx?ArticleId=1518-1783_2199270

Economics: CEOs' confidence level

2008-02-03T10:03:00.000-05:00

In the final quarter of 2007, the Conference Board Measure ("CBM") of CEO Confidence showed a decline to 39 points. This is the lowest measurement since the final quarter of 2000 when the CEO Confidence was registered to be 31 points. On this scale, a score above 50 reflects a more positive sentiment than a negative one. Clearly, at 39 points, the economic outlook by CEOs is not great, standing at a seven year low.

Some factors such as the housing market troubles, liquidity crisis associated with the Asset-Backed Commercial Paper, financial markets instability and energy prices have contributed to the decline in CEO Confidence level.

To read more about this interesting survey, you can visit: http://www.conference-board.org/utilities/pressDetail.cfm?press_ID=3303

Food & sanitation safety

2008-01-29T20:41:00.000-05:00

Next time you do your groceries, I want you to reflect a little on what you are buying. Are you buying a Canadian product, imported product, is it organic, genetically modified? There are many questions that we could be faced with when considering food and the consumption safety thereof.

There are various risks associated with food: (1) chemical risks such as pesticides and antibiotic traces in food, (2) microbiological risks such as parasites found in food or various types of harmful bacteria and (3) nutritional risks associated with our own metabolism such as allergens.

Several organizations such as the World Health Organization ("WHO"), Canadian Food Inspection Agency ("CFIA") and Health Canada ("HC") monitor the food industry, within their own sphere of competence, and adopt measures and guidelines for the prevention of any form of health hazard caused by the introduction of imported food, new technological processes having an impact on food or any other factors influencing the food we consume.

HC is the Federal department responsible for the health of Canadians with a mission to prevent and reduce risks associated with the food we consume. On the other hand, the CFIA is responsible for the inspection and application of the guidelines set forth by the HC for the safeguarding of food, animals and plants consumed by Canadians. Here is a non-exhaustive list of laws within HC's jurisdiction:

Feeds Act;
Food and Drugs Act;
Consumer Packaging and Labelling Act;
Fertilizers Act;
Fish Inspection Act;
Meat Inspection Act; and
Canada Agricultural Products Act.

There are also certain other risks identified and ultimately studied: (1) the use of Recombinant Bovine Somatotropin, a synthetic version of the naturally occurring growth hormone, (2) genetically modified food and (3) cloned animals. HC prohibits the use of Recombinant Bovine Somatotropin in Canada but does not see any health risks associated with genetically modified food or any food directly coming from or resulting from the use of cloned animals.

For more information on this, you can visit HC's website. What's interesting particularly about HC's website is that you can see if there are any advisories, warnings or recalls issued on any type of food or product sold in Canada.

Concordia University ranked 33rd in the world

2008-01-29T19:35:00.000-05:00

Ever wondered which Canadian universities best prepare its students for business leadership positions? According to a study conducted by the European École des Mines de Paris, anaylysing the development training programs of 338 universities accross the world, Concordia University ranked as the highest rated Canadian university on its world-wide ranking table.

It must be noted that Concordia University has produced the highest number of CEO's in a Fortune 500 company: André Desmarais of Power Corporation, Domenic D'Alessandro of Manulife Financial and Gerald T. McCaughey of the Canadian Imperial Bank of Commerce. Being a former graduate of Concordia University, this is something to be proud about! The world's top five universities with graduates occupying a Fortune 500 position are: (1) Harvard University, (2) Tokyo University, (3) Stanford University, (4) Ecole Polytechnique of France and (5) HEC of France.

As I like to compare Concordia to McGill, according to the above report, Concordia is ranked 33rd followed on this world-wide ranking out of 338 universities and McGill is ranked.....roll the drums..... 318th!!! This reconfirms my firm belief that Concordia's business faculty is a exemplary school of business and undoubtedly among the elite in Canada.

To view the report, you can visit: http://www.ensmp.fr/Actualites/PR/EMP-ranking.pdf

Business etiquette & protocol

2008-01-27T12:43:00.000-05:00

We all know that the first impression, whether on clients, business partners, family members etc., is crucial in establishing one's credibility. We must, therefore, make an effort to ensure that we leave a positive first impression on our clients or otherwise by adopting an appropriate business etiquette.

To know more about (1) how to shake one's hands, (2) choosing wine but within your budget without looking cheap, (3) sitting at the dinner table, (4) politely leaving, (5) working on your visual contact, (6) memorizing one's name, (7) conversing with someone we do not know etc., you can use the services of Chantal Lacasse who's an expert in this field. It would cost you about $1,500 for one hour of her time, not considering hall, meal and other expenses, but I believe that it is worth the investment.

For more information, you can visit: http://www.chantallacasse.com/index.html.

Homo consumericus: evolution & consumption

2008-01-27T11:43:00.000-05:00

I've had the pleasure to attend, recently, a conference at the John Molson School of Business where Dr. Gad Saad presented his latest research and findings in connection with the consumer behaviour, the so called "Homo consumericus" theory.

Dr. Saad's objective, unique in its approach, is the attempt to explain our consumption behaviour using the Darwinian evolutionary theory. His postulate, transcending all cultures, ethnicities and racial diversities, attempts to identify a set of universal variables influencing the our consumption pattern and behaviour. According to Dr. Saad, as humans, our consumption behaviour has been shaped, on the one part, by our social and cultural influences and background, and, on the other part, by our biological and genetic framework resulting from thousands of years of evolution.

Interestingly, further to some empirical research conducted by Dr. Saad, it has been demonstrated, very creatively I might add, that, to a certain extent, men and women's consumption behaviour, irrespective of social influences and cultural background, is strongly correlated with a man and woman's biological instincts universal across the human specie.

Dr. Saad has recently published a very interesting book discussing at large and length his theory of humans' consumption pattern as shaped by our genetic and biological makeup titled "The Evolutionary Bases of Consumption", which I shall purchase very shortly and strongly recommend that you read as well. Some of the interesting topics discussed therein are (1) the Darwinian gastronomy, (2) salt consumption (consumption behaviour depending on the weather), (3) situational hunger and food shopping (our purchasing behaviour when we are hungry) and (4) gift-giving to kin (protection and passing of our genes).

For more information on the foregoing, please visit Dr. Saad's website at: http://jmsb.concordia.ca/~GadSaad/home.html.

Abortion: Anniversary of Roe v. Wade

2008-01-22T22:34:00.000-05:00

On January 22, 1973, the US Supreme Court legalized abortion further to its decision in Roe v. Wade. In its decision, the Supreme Court layed out the foundation for the "trimester analysis" whereby in the first three months of pregnancy, no government regulation can restrict abortion; in the following trimester, the government may regulate only for the purpose of protecting women's health and preserving her safety; and last, allowing the government to fully regulate and ban abortions in the final trimester of the pregnancy. This decision was a crucial at the time as many women died every year in trying to get abortion through channels other than clinical as a result of the prohibition imposed.

Roe v. Wade was a heavy blow to the anti-abortionist groups who have attempted, in the following years, to have it overthrown but with little success. CNN's article discussing such subsequent events is very enlighting and I would recommend that you read through it. You can visit the below sites for more:

CNN's "35 years after Roe: A legacy of law and morality":
http://www.cnn.com/2008/US/01/21/scotus.roevwade/

ROE v. WADE, 410 U.S. 113 (1973) - U.S. Supreme Court :
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=410&page=113

R. v. MORGENTALER [1988] 1 S.C.R.:
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html

The fall of the All Mighty

2008-01-21T21:40:00.000-05:00

The markets today, on January 21, 2008, showed signs of fear and anxiety about the impending US recession. The TSX lost 604.99 points at the close of business representing a downfall of 4.75%. Why are investors so worried? What caused this selling frenzy? Who is behind this market volatility? The short answer to that is: the United States.

Some say that the US economy is heading towards a recession, some say this is in fact the start of a recession and some other say that we are already in a recssion. Quite frankly, at this stage, this determination, in my view, is more theoretical than anything else. Whether we are in a recession or not, the economy's vital signs are demonstrating hints of fatigue and slowdown and we have already experienced, in concrete and quantifiable terms, some form of a economic setback.

In todays economic global village, several other countries have graduated to the big leagues and now playing with the big boys: China, India, and others such as Russia. The US economy, the once feared and the All Mighty, has been crippled over the past few years further to several major events, inter alia, September 11, Irak war, liquidity crisis, astronomical deficit and the outlook is not very promising. One interesting twist in today's economic juncture is that the purchasing power of Americans has dropped and will continue to drop but most likely the oil prices will remain at the current levels, because it is no longer the US who's sustaining the oil consumption of the world but countries such as China and India. China and India will keep the oil prices sky high and this will have a very devastating impact on the US economy.

What this means is that if I was George Bush, I would ensure that I take a few introduction courses on economics and implement policies and programs designed to immediately mitigate some of the economic damages. It is quite tragic to see a country, such as the United States, showing off record surpluses and economic strength not even a decade ago but now struggling to prevent a recession, or to make it theoretical again, get out of a recession already in motion.

As for our poor Canada, there's good news and bad news. The good news is that there are other countries with great economic prospect and potential hungry for our products worth capitalizing upon but the bad news is that all the industries closely tied to the United States will either disappear in some cases and shrink in others. Bottom line: Canada, in the aggregate, will not be as badly punished as anticipated as a result of the US economic slowdown because we now have other big players to play with. We can now afford to sell our products to other economies able and willing to purchase our goods and services. On the long run, our industries will adapt themselves to this new global economy and rely less on the United States. If I remember correctly from business school, this is what we call "diversification"! Let's hope that Canada can land safe in this economic turmoil...

The status on law firms

2008-01-19T13:03:00.000-05:00

Jordan Furlong makes a very interesting statistical analysis on lawyers practicing in firms, size of law firms etc. I recommend that you read through this very informative synopsis of where the industry is heading at http://law21.ca/2008/01/11/law-firm-size-past-present-and-future/#more-53.

Lawyers Without Borders

2008-01-19T12:54:00.000-05:00

For lawyers who would like to make a difference in the community and contribute a little time for the greater common good, one organization suitable for you is Lawyers Without Borders ("LWB").

This non-governmental international organization provides legal assistance to individuals and groups in third-world countries who require such assistance. As an example, LWB just recently issued a report on the status of lawyers and the justice system in Columbia.

For more information, you can visit their website at: http://www.asfquebec.com.

Mergermarket's 2007 league tables

2008-01-15T22:42:00.000-05:00

Please visit Mergermarket's 2007 league tables of legal advisors to global mergers and acquisitions: http://www.mergermarket.com/pdf/Press-Release-for-Legal-Advisers-Q4-2007-Global-Final.pdf

iPod levy quashed

2008-01-15T21:41:00.000-05:00

The Federal Court of Appeal ("FCA") quashed a levy imposed by the Copyright Board, which would have been introduced sometime in 2008, on MP3 players, mobile phones, computers and other digital recorders. Such levy would have resulted in increased prices paid by consumers, depending on the capacity of storage, in purchasing digital recorders.

The FCA indicated that the "Copyright Board erred in law when it concluded that it has the legal authority to certify the tariff that CPCC has proposed for 2008-2009 on digital audio recorders".

Passport Attestations: recent developments

2008-01-15T21:12:00.000-05:00

New requirements in the matter of passport attestation (1) requires the passport attestors to confirm their date of birth and passport number when attesting to an applicant's identity and (2) has broadened the category of persons who can attest thereto.

Visist the following: http://www.cma.ca/index.cfm/ci_id/10042146/la_id/1.htm

Quebec's legal system: Civil & Common Law

2008-01-14T20:15:00.000-05:00

Numerous laws and regulations shape our daily lives and help preserve the crucial balance between our individual and our collective rights and freedoms. To allow every person to exercise his or her natural and inherent freedoms within the confines and limit of every other person’s natural and inherent freedom, we, as individuals living collectively, must forgo and restrict to a certain extent our own personal autonomy for the benefit of the collective good. We have thus collectively entered into an implicit contract, a social contract, comprised of the aforementioned laws and regulations offering us the required protection and fostering our development within the social framework.

There are two major of legal systems upon which the social contract nourishes itself from: the Common Law and the Civil Law. Firstly, the British Common Law is a legal system based upon jurisprudence, going back to the Norman Conquest in 1066. Such decisions are referred to as “precedents” where the ratio decidendi, the rationale of the decision, is applied to future cases similar in nature. On a long run, the decisions or precedents thus establish and dictate the legal framework applicable to persons within the Common Law jurisdictions. Precedents can, however, only be overruled by Statutes or new laws adopted by the government, essentially keeping in check the powers vested upon the judicial system.

Secondly, the Civil Law, rather than primarily basing itself on decisions or precedents, is based upon a strict and general codification of the legal parameters applicable in the jurisdiction. This set of “written” laws are more commonly referred to as a “code” which is comprised of a logical and structured sequence of provisions governing the people. A judge need not base his or her ruling on precedents of cases presenting circumstantial similarities but must interpret the facts as evidenced before the court of law in accordance with the Statutes and the written laws of the land.

Specifically, the Civil Law, taking roots in the Roman tradition, is a written codification of the laws governing persons, their relationships and their property. France adopted, further to the French Revolution in 1789, the Code Napoléon, covering matters such as the legal attributes of a person, relationship among individuals, property and institutions governing the relationships thereof.

As mentioned previously, we have collectively entered into a “social contract” where we are individually, living in a given society, a party to this contract and therefore subject to the provisions thereof, consisting of all applicable laws adopted by our elected representatives. The social contract, from the moment of our conception, birth, our childhood, adulthood and ultimately to our death, even in the handling of our bodies upon passing, provides for and establishes guidelines, some imperative, serving as pillars to the societal foundation.

In Quebec, the Civil Code of Quebec ("C.C.Q.") is an essential component to our social contract, dictating, in some cases, or suggesting, in others, logically and in a structured manner, the legal parameters among persons, relations among persons and their property. However, there is a bijural legal system in Quebec based upon the English Common Law and the French Civil Law. This unique legal structure is found in only two jurisdictions in North America mainly due to their colonial history: the state of Louisiana and the province of Quebec. Thus, our social contract is an amalgamation or merger of both the English Common Law and French Civil Law traditions, having distinct origin and approach, resulting in Quebec’s unique legal landscape.

The C.C.Q. came into effect on January 1, 1994 replacing the former Civil Code of Lower Canada (“C.C.L.C.”) enacted by the Legislative Assembly of the Province of Canada in 1865, which came into effect as of July 1, 1866. Over the years, and further to numerous modifications and amendments, the provisions of the C.C.L.C. became outdated and needed reform; it was was no longer as logically structured and coherent as it first used to be. Major societal changes and breakthroughs, since the adoption of the C.C.L.C., over the course of the following century, completely altered the social and legal scenery in Quebec and the C.C.L.C., more and more liberally interpreted by the judicial bodies, was in a desperate need for modernization.

In 1955, the Government of Quebec embarked on a reform of the C.C.L.C by establishing the Civil Code Revision Office where consultations were held, reports produced, subsequently leading to the Draft Civil Code, tabled in the Quebec National Assembly, some twenty-three years later, in 1978. Progressively, in the following decade, the Draft Civil Code slowly but surely took shape and paved the way for the adoption of the C.C.Q. as a law on December 18, 1991, taking effect as of January 1, 1994.

Undoubtedly, the reform of the C.C.L.C. and adoption of the C.C.Q. was, within the civil law jurisdictions around the world, one of the largest and most complete recodification undertakings. Remarkably, the C.C.Q. was, in 1994, a complete restatement of the civil law of Quebec, which included judicial interpretations of the provisions of the C.C.L.C., where applicable. The C.C.Q. very nicely summarizes its purpose in the Preliminary Provision:

“The Civil Code of Québec, in harmony with the Charter of human rights and freedoms and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.”

The C.C.Q. today is the fruit of centuries of evolution and plays a central role in our daily lives. It is this Code that offers every person the civil protection necessary and imposes upon the same restrictions and obligations allowing peaceful interaction among all. “Every human being possesses juridical personality and has the full enjoyment of civil rights” (art. 3 C.C.Q.) and “every person is fully able to exercise his civil rights” (art. 4 C.C.Q.). However, “no right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith” (art. 7 C.C.Q.).

The history and evolution of every legal system is rich and fascinating; that of Quebec is no exception.

General Statutory Holidays: Reasonable Accommodations

2008-01-10T21:14:00.000-05:00

There is an article published in the January 2008 issue of the Barreau du Québec on Vol. 40 no. 1 relating to "reasonable accomodations" when it comes to an employee's work schedule that I would like to bring to your attention.

Employers must carefully establish internal policies relating to statutory general holidays and non-working day with pay entitlements in conformity with the Labour Standards Act (Québec) ("LSA"). Specific measures must be taken to avoid any type of discrimination against employees, whether religious or otherwise, as a result of inequitable treatment when consenting or refusing to consent to requested non-working day with pay.

Section 60 of the LSA (Quebec) provides for the statutory general holidays which is defined to be (1) January first ; (2) Good Friday or Easter Monday, at the option of the employer; (3) the Monday preceding 25th of May; (4) first of July, or second of July where the first falls on a Sunday; (5) the first Monday in September; (6) the second Monday in October; and (7) 25th of December.

Where it may get complicated is when dealing with employees who are part of a certain minority group. To avoid any unnecessary suits and actions, internal policies must explicitly layout the treatment of employees' work schedules, for religious reasons or not, on days other than the aforementioned statutory general holidays. The rule of thumb in handling such requests must be for employers to reasonabliy accommodate time-off requests without discrimination or perception of discrimination by ensuring that its decisions does not result in a an employee suffering from unreasonable loss of pay or non-working day with pay entitlement or suffer in any unreasonable fashion, depending on the circumstances.

Interesting case law to read is: Hayley Cole v. Bell Canada (2007) T1114/9505

Amendments to the Highway Safety Code

2008-01-07T21:37:00.000-05:00

In mid-december 2007, Bill 42 amending the Highway Safety Code hoping to limit deaths caused by reckless driving received Royal Assent. Such amendments include:

the implementation of photographic radars;
ban on cellular phones used behind the wheel;
heavier sanctions for speed-limit violations;
speed control for heavier vehicles;
mandatory winter tires; and
a ban on fast-car advertisement.

For more on this issue, you can read: http://www.ledevoir.com/2007/12/19/169178.html or http://www.canada.com/montrealgazette/news/story.html?id=0612c7c0-bf85-4043-a37e-e359e2bde8d7&k=93940

Technology's impact on our laws

2008-01-07T20:24:00.001-05:00

With the lightning-speed development of technology, I wonder, how fast do our laws keep up with the changes.

Boiling everything down to the basics, what we’ve learned in our Introduction to Law lectures, laws are meant to protect the people living collectively in society; this reminds me of the “social contract”. One problem: our social contract seems to be lagging our social development and thus no longer offers either the protection or coherence necessary, as the case may be.
What should we do? The magic question. For laws to be effective, they must be “stable”; for laws to protect, they must be flexible and adaptable to our social realities. We must determine how much stability can we sacrifice for the sake of protection or how much protection can we forgoe for the sake of stability?

For example, there's another Facebook issue. Two youngsters charged with murder, their identity legally kept anonymous pursuant to the Youth Criminal Justice Act, but they have been perfectly identified on Facebook. Read Howard Elliott's post titled: "Facebook poses dilemma" at http://www.thespec.com/Opinions/article/305727. I am of the opinion that any legal incoherence must be rectified. But what do we do in a year, two years or three years down the road, when new online trends emerge? Do we go back to the drawing board and adopt new laws? Will we be, as citizens, fully cognizant of the applicable laws at any point in time if we allow such rapid changes? Are we cognizant of the laws applicable to us now?

We live with Internet and technology and so our laws need to carefully establish the legal parameters surrouding these activities. But how fast can our laws keep up? I table this question and I would like to get anyone’s feedback.

What to look for when hiring a lawyer?

2008-01-01T22:47:00.000-05:00

It may be difficult for someone to find the right lawyer knowledgeable, willing and able to handle the legal issue that one may be faced with. So how do we chose? There are certain characteristics that you may want to find in a lawyer before you make your selection:

1- Experience is definitely on top of the list. Depending on the complexity of the legal issue, an experienced lawyer may be your safest bet;

2- With experience comes reputation. By asking around within or outside of the legal community, you may get a better sense of your lawyer's reputation;

3- Service provided by the lawyer. It is important for a lawyer to provide an adequate service to his or her clients such as returning promptly your calls, keeping you updated with any developments on a regular basis etc.;

4- Honesty and integrity. Your lawyer must inspire confidence, must deal with his or her clients in an honest fashion and not take advantage of anyone vulnerabilities.

Before you make your selection, the above characteristics are what I believe your lawyer must exhibit. You may associate more importance to one characteristic over another but the bottom line is that your lawyer delivers what he or she purports to deliver.

Dial 311...

2008-01-01T13:43:00.000-05:00

If you need any additional municipal information, you can now dial 311 any day of the year.

Winter tires are now mandatory in Quebec

2008-01-01T13:25:00.000-05:00

Here is an interesting update for you folks living in Quebec to consider. Pursuant to a new law recently adopted applicable in the province of Quebec, starting from November 15, 2008 through April 15, and on a yearly basis thereon, Quebec drivers must equip their vehicles with winter tires. Read more about this topic by visiting: http://www.cbc.ca/canada/montreal/story/2007/12/20/quebec-snowtires.html?ref=rss.

Online price list publications & confidentiality laws violation

2007-12-31T01:28:00.000-05:00

Certain sites such as http://www.redflagdeals.com/ and http://www.shoppingfinder.ca/ provide consumers with various retailers' sales flyers pricing and as mentioned by David Canton in his blog titled "Nothing illegal about leaking sales on Net", this has caused a certain level of legal controversy.

It has been noted that some of these websites publish retailers' sales prices before even the retailers' flyers have been released. Are there any confidentiality laws or copyright laws violated here? According to David Canton, "there is no copyright violation in publishing the fact that a certain store will sell specific items at specific prices" and in connection with the confidentiality laws violation "so long as the website publishing the information has not used inappropriate means to obtain the data, that argument doesn't carry much weight."

While I tend to agree with David's position on the non-violation of copyright laws, I disagree with the argument on the confidentiality laws may not have been violated. In my perspective, "leaked" information by its nature must be considered as confidential information and any attempt made by a third party website in obtaining, disseminating or making use of such information before such price lists are made "public" is a breach of the confidentiality laws.

It would be interesting how the courts in Quebec may interpret such a situation.

For David Canton's analysis on this issue, please visit his post titled "Nothing illegal about leaking sales on Net" at: http://www.canton.elegal.ca/index.html.

Social networking sites & suicide rates?

2007-12-31T00:47:00.000-05:00

Did you ever wonder about the effect of online Social Networking sites such as Facebook and the like on suicide rates?

Rob Hyndman brings to our attention an article written by Andre Picard titled “Holidays, suicide and Hope” discussing the suicide rates during Christmas. Take a look at Rob's post at http://www.robhyndman.com/2007/12/28/suicide-and-social-networks/#comment-79970.

Most cited cases of the Supreme Court of Canada

2007-12-30T20:16:00.000-05:00

Simon Fodden makes an analysis using the Canlii database in determining the 1000 most cited cases of the Supreme Court of Canada and the two most cited, which I find very interesting, are the following:

R. v. W.(D.) [1991] 1 S.C.R. 742 cited 2336 times; and

Pushpanathan v. Canada (Minister of Citizenship and Immigration)[1998] 1 S.C.R. 982 cited 1791 times.

To read Simon's post, please visit: http://www.slaw.ca/2007/12/20/the-1000-most-cited-scc-cases/#comment-234175.

Can legal blogs be deemed as credible as legal articles?

2007-12-27T22:59:00.001-05:00

I recently came accross a blog post titled "Legal blogs as legal scholarships?". It is a very interesting perspective in the value attributed to legal blogs inside and outside a court of law. For more details on this, you can visit http://www.slaw.ca/2007/12/20/legal-blogs-as-legal-scholarship/.

Furthermore, Mr. Tarun Jain analyses further the value of such legal blogs in distinguishing the nature of a legal blog and a legal article. You can read this well written blog by visiting http://legalperspectives.blogspot.com/2007/12/legal-blogs-versus-legal-scholarship.html.

Legal definition of “obligations”

2007-12-23T16:14:00.000-05:00

This article must not be viewed as a legal opinion or any form of legal representation made by the author in connection with the subject matter discussed herein. Before entering into any type of commercial or private agreement, we advise that you consult with a competent legal advisor in the applicable jurisdiction to receive an accurate representation and opinion on the legal consequences taking into consideration the pertinent facts surrounding your request.

Many of us wake up in the morning and possibly use the public transportation to get to work for a full day of intensive labour, buy a cup of coffee on our way there and stop by the grocery store to purchase some groceries before heading back home. The fact of the matter is that in this example, we have entered into at least four different contracts that may be classified as transportation, labour and purchase contracts. We enter into numerous contracts on a regular basis, sometimes without even being aware of its formation, execution and extinction. The simplicity in entering into contractual relationships is a central element in the efficient functioning of our society and relationship among people providing the flexibility needed to customize every contractual provision and a legal support in its enforcement. It is in the nature of every contract to entitle the parties thereto to specific rights and impose upon the same specific obligations.

A contract is defined to be a bilateral juridical act consisting of a consensual agreement among two or several persons obligating the parties thereto to execute a certain prestation. Two conditions are necessary in the formation of a contract, the creation of legal obligations enforceable by law driven by an economic interest at the core such obligation.

In this essay, we shall consider and define the notion of “obligations” to better understand the mechanics and characteristics underlying any contractual relationship. The term obligation is most commonly used and defined to be a duty or constraint; however, in legal terms, obligation refers to the legal relationship among two or several persons requiring the accomplishment of a certain prestation as its objective. In essence, there are three components to any obligation: (1) juridical relationships (2) among legal persons (3) and patrimonial in nature.

First, by juridical relationship, it is understood that there are opposing parties to any obligation whereby such obligation can be legally enforced and sanctioned by the judicial system in the event of one party’s non-execution. To be legally enforceable, an obligation or civil obligation must be based on either the text of law or terms of a juridical act. Upon determination of the existence thereof, the judicial system or courts will ensure that the debtor fully, completely and in a timely manner satisfies and executes his or her obligation towards the creditor of such obligation.

Furthermore, an obligation must be among legal persons as prescribed by the Civil Code of Quebec who may be a physical persons or a moral person including the State and all public bodies and each party may be a creditor and a debtor simultaneously or just one or another. The objective of any legal obligation is the prestation entitling the creditor to demand its execution and obligating the debtor to execute such prestation. Ultimately, when such obligations are based on a juridical act, we refer to this act as a “contract”.

Last, obligations must be patrimonial in nature defined to be all assets, real and personal rights, and liabilities or debts of a legal person. Moreover, a legal person cannot sell, assign or transfer its patrimony but may sell, assign or transfer the assets and liabilities constituting such legal person’s patrimony. It is only upon a physical person’s death or moral person’s dissolution that the patrimony shall be assigned to the heirs or successors extinguishing completely the patrimony. Extra-patrimonial rights are one type of assets that may be found in a patrimony, having no quantifiable economic value such as the right to one’s image or dignity. We may also encounter personal rights to refer to certain rights that can only be exercised by a specific person such as the entitlement to alimony by a spouse upon divorce.

Contracts are essential to the development and evolution of the collectivity and must provide as much as freedom as possible to the market players, but within certain legal parameters, to negotiate and define each other’s rights and impose obligations on one another. The judicial system must help protect the institution of contracts in enforcing as strictly as possible the contractual terms as defined by the parties, subject to abuse and actions contravening the public order. With hundreds of thousands of contracts entered into on a daily basis, maintaining the market participant’s confidence in this institution is thus paramount and must be preserved at all times.

The necessity of a business plan

2007-12-19T23:59:00.000-05:00

First and foremost, I would like to wish everyone, including your loved ones, a Merry Christmas and a happy New Year. May this coming year bring you health, joy, happiness and prosperity.

To give you a little background about myself, I am a practicing lawyer, graduate from the Montreal University. My areas of practice revolve around business law, commercial contracts, real estate law, franchising, leasing, family law and immigration. I have worked for several years in the financial industry being exposed to major commercial transactions among Canadian nationals and multi-nationals. Before becoming an attorney, I’ve studied business at the John Molson School of Business where I had the opportunity to learn a great deal about business and entrepreneurship and most importantly meet outstanding professors and fellow students. I am passionate about the field of law and finance and hope that, through my blog postings, I could bring these two fascinating worlds together in clear and simple terms accessible to the general public.

Now that I’ve gone over some of the housekeeping material, I would like to discuss briefly the main subject matter: the necessity of a carefully elaborated business plan for business start-ups. In today’s business and commercial environment, every market player faces tremendous competition and must carefully devise strategies and plans of action to overcome such harsh realities of continuous cut-throat rivalry in each of their respective industries. This is especially true for new entrepreneurs starting a new business having little market visibility, market share and capital resources. For a new company to survive through the launch phase, the entrepreneur must fully understand the nature of the industry, the competition, the target market, consumer behaviour etc. Most importantly, an extensive reflection must be done on his or her own capabilities and limits. This test is more commonly know as the SWOT test (Strengh, Weakness, Opportunities and Threats).

Facing such strict competition, one powerful tool available to an entrepreneur starting a business is a “business plan”. The preparation of a business plan is paramount in the launch of a new business, or to revise or even to remodel an already existing business plan, and must not be overlooked or taken lightly. The entrepreneur must take the time necessary and mobilize the necessary resources in the research, elaboration and preparation of a business plan. This process will allow the entrepreneur to conceptualize in more concrete terms all internal variables of the business model (Strengths and Weaknesses) and all external variables of the business model (Opportunities and Threats), namely perform the SWOT test.

Many tools are available on the Internet and several organizations provide support to those starting a business. I recommend that you fully make use of the facilities available to you in order to avoid any unnecessary hurdles to overcome on the way when they could have been prevented in the first place. An entrepreneur by nature will rather spend more time in what they do best which is the creation of a product or offering of a service and may, as a result, underestimate the value of a business plan. This is one mistake to avoid. One advice that I can give you is that once you have determined that your idea may be commercialized, do not cut corners and neglect the process of researching and writing your business plan, unless there’s a state of necessity whereby time will render your idea obsolete if you do not commercialize immediately.

Some may say that one can write a very fancy business plan but not have the skills and abilities to implement an idea or a concept and that an entrepreneur’s true talent lies in his or her ability to execute and not write. I on the other hand say that a business plan need not be a fancy document, it is the product of a carefully researched and thought out plan of action allowing entrepreneurs to not only sell the idea to themselves and others but to better execute and implement their idea.

If you have any questions in connection herewith, please do not hesitate to share your comments.

Amir Kafshdaran