OFIS

A Legal Primer for Independent Schools in Ontario

Presented by: Jacqueline Dinsmore

Cognition LLP

Some Background

The “Fine Print”

The information provided in this presentation represents a general overview and understanding of general legal contract issues. It is not intended to be used as legal advice. Any application of the contents of this seminar in the context of a specific business should entail further legal consultation and consideration.

Contract Issues – A Primer

Contracts – The Form

Agreements can be written, oral or implied by statute or by the conduct of the parties

Written is best, as it can most easily be proven

Do not start anything in a relationship until the contract is signed (e.g. don’t let them start school!)

Do not overpromise and don’t commit to things you cannot or may not be able to meet (e.g. your student will be in the top 10%)

Contracts- The Content

Know the terms of your contract- if you can’t explain the terms of your contract in entirety, then you are not in a position to understand the business arrangement either

The contract IS business PLUS legal issues working together

Don’t ignore “boilerplate” language (at beginning or end)

Contracts – The Basics

Parties intended to be bound, had legal capacity, consideration was given

Consideration- the party seeking to enforce a contract must have given something of value to the other (e.g. payment of $$, a promise, changing one’s position in reliance on a promise)

Must be fresh (not a past act or promise)

Contracts- The Content

Who are the parties? Does your contract have a full corporate name (e.g. Ltd. Inc. Limited). Witness for individuals.

Term and Termination. Are these clearly defined? When will the contract start- when will it end? What period does it cover? Have you fixed the term but then provided for notice of termination?

Pricing. Are these detailed and accurate? Are they included in schedules or in the main body? Does it contemplate price increases and the mechanism for such?

Refunds. Is the refund policy clearly described? Service Levels- what is the paying party receiving for their

payment? Is there an expectation by the parents of a particular level of service? Are there expectations of the parents from the school?

Contracts- The Content

Representations and Warranties (try to receive reps and warranties from parents for important conditions, such as health issues, behaviour problems, etc.)

Informed assumptions of risk (do parents know what risk they are assuming by sending their child?)

Limitations of liability (Limit the school’s liability if something goes wrong- won’t apply in cases of negligence)

Indemnities (Protect the school from third party lawsuits as a result of behaviour from a parent or child)

In determining risk….. look at everyone around you!

YOU

3rd Parties

ServiceProviders

Consultants

Parents

Partners

Staff

Government

Prepare for the worst case scenario

Contract issues- Non-performance justification

Mistake- no consensus as to nature of the agreement (e.g. don’t tell the other side about this….)

Unfairness- parties did not have equal bargaining power (e.g. one party taken advantage of)

Public Policy – contract contemplated the performance of an illegal or criminal act

Non-performance by the other party (breach of contract)

Contracts- Your Remedies for Breach

Specific performance- they MUST do what they said they would do

Monetary damages (as good a position as if the contract had been performed)

Has either party limited their liability with a cap or under certain circumstances?

Contract Issues – The Review

Ensure your standard agreement is reviewed by legal counsel. But your legal counsel won’t know the business arrangement necessarily- so advise them!

Any deviations from this standard agreement should also be reviewed

Do not ignore the schedules and ensure that they are completed and accurate before signature

A little fun…..

The Contest

IP Protection

Trademarks

Trademarks: words, logos or symbols that identify your products or services and distinguish them from those of others.

Should be distinctive and not descriptive or it may be objected to Must be in use to maintain registration Search www.uspto.gov and www.ic.gc.ca (as well as NUANS and google search) You develop trademark rights just from usage in advertising and selling the

related product or service Mark any usage with a TM Registration is not necessary, but gives you rights across the country, can give

indefinite ownership, allows enforcement over social media channels (e.g. Twitter) and provides clearer ownership ®

Ensure that you develop and enforce trademark usage guidelines Registration - $1500 - $2500 plus more for international

IP Protection

Copyright

Copyright is a form of protection allowing the owner of the rights in a work to prevent others from copying, displaying or performing the work.

The work must be original. Absent a contractual arrangement, the author owns the copyright (an employer

is deemed the author of any work created by an employee) Registration is not necessary, but can be helpful. Use of copyright notice not necessary but helpful: (C) [Year of first publication]

[Owner] Copyright doesn't protect the idea, but the expression of the idea. Any music and images used for promotional purposes is likely subject to

copyright and must be licensed. Century 21 Canada Limited Partnership v. Rogers Communications Inc. –

Zoocasa found liable for scraping content from Century 21 website and reproducing it

Privacy

Privacy/Permissions

Personal Identifiable Information

Any information that can be linked and identify, either by itself, or with some other data elements, an individual. For example, IP addresses.

Privacy law regulates the collection, use and disclosure of personal identifiable information (e.g. name, telephone number, credit card, etc.)

Watch out for Health or Employee Information. More restrictions apply.

Privacy

Obtain explicit consent for the collection, use, and disclosure of personal information. Some ancillary use may be permitted, but that is all fact based and do not rely on implicit consent, but always try to obtain explicit consent

Collect only what is necessary Disclose purpose of collection to user and get their consent Ensure that the personal information is not disclosed to anyone unless you

have received the proper consent from the person Make sure that you have proper consent from parents and/or guardians for

the dependents. Be aware of the age laws, e.g., medical treatment rights, ownership of

personal information, who can give consent for disclosure and for what at certain ages.

Impose privacy policies and procedures, including appointing a responsible person

Allow individuals to request their information be deleted or modified If sending personal information to be stored or processed in US or other

jurisdictions such as China etc. disclose that and obtain consent

Advertising/Marketing Considerations

General Advertising Principles

Any time a claim is made in an ad that might “reasonably be taken as true” must be substantiated

Examples

“Our school has a class ratio of 10 students for every teacher”

“We were ranked #1 in Grade 3 mathematics in Halton County”

“90% of parents would prefer to send their children to private school, if they could afford it.”

“Our teachers are the best teachers in the GTA’“99% of Pinewood students are accepted into

University”

Puffery

An exception to the requirement to substantiate is when the claim is so outlandish that a consumer would not reasonably rely upon the claim or believe it to be true

The test- “Would a reasonable person rely upon the representation?’

Example: “We are the best school in the entire universe.”

Example: “Our teaching works wonders”

Advertiser’s Opinion

A claim that consists solely of an advertisers opinion also does not require substantiation

If a company says its products are “good”, the consumer knows that he or she is relying only on the company’s opinion of its products.

However, don’t disguise a fact as an opinion. Example: “We think our vacuum cleaner is twice as powerful as the competition’s.”

Tactics to Deal with Unsubstantiated Claims

The Weasel Claim- “Our detergent leaves dishes virtually spotless”

The Unfinished Claim- “ABC gives you more”The We’re Unique Claim- “If it doesn’t say

Downy, it can’t be Downy”The Water is Wet Claim- “Our mascara

greatly increases the diameter of every lash”The So What Claim- “Our soup has not one,

but two beef stocks”

Comparative Advertising

4 out of 5 customers prefer Pepsi to Coca Cola

Be Careful!- Get legal input before making comparisons- There may be special trademark rules if you

use a competitors name- Don’t rely on stale data- Don’t underestimate the potential damage of a

comparative claim gone bad!

A little fun….

The Exercise!

Who Are We?

Bay street senior counsel (average 15 years of experience) (Blakes, Torys, Stikemans etc.)

Former In House lawyers (e.g. Canadian Tire, RIM, Nortel, Sun Microsystems, CBC, Pepsico, Hewlett Packard, Deloitte etc.)

1/3 to ½ the cost of traditional counsel due to the way we have stripped overhead

32 lawyers -located in Toronto, Ottawa & CalgaryServicing over 400 companies, institutions and

organizationsAn outside firm that behaves like in-house counsel Available on a flexible/customizable basis Integrated with your team

THE KIND OF LAWYERS COGNITION ATTRACTS

Lawyers Trained on Bay Street at:

Some of Our Clients

Need Help? Please give us a shout!

Jacqueline Dinsmore416-348-0313 ext. 107

416-882-1977 (cell)jdinsmore@cognitionllp.com

www.cognitionllp.com