Category: Law


Dec
2018

Intercompany loan agreements

categories: Law

It’s probably unfair to say that it’s a hallmark of a well-run company that it has established processes for documenting all of the processes which are key to its business. That would be easy to assert, but very hard to do. But if that principle did apply, then it would also apply to the creation and documentation of intra-group loan relationships. This includes cash-pooling arrangements, which typically amount to loans made by the various participating companies to the cash pool leader.

From a legal perspective, this is not rocket science. The key terms will include:

drawdown and utilisation of advances conditions precedent to drawdown term (repayment date) and the borrower’s ability to repay early (prepayment) interest rates, interest periods and compounding security and subordination events of default triggering early repayment, and default interest

As with any intra-group arrangements, a critical litmus test is whether directors can properly approve the terms of the loan relationship as being in the interests of each individual company of which they are a director.

From a lender’s perspective, this ‘corporate benefit’ issue is particularly relevant for loans by a subsidiary to a parent company or a sister company. It may less of an issue in the case of a loan by parent to its subsidiary, since the parent has a clear financial interest in the success of its investment. However, for upwards or sideways loans within a group structure, factors such as the borrower’s ability to repay the loan will obviously be important. It should go without saying that it’s not enough for the making of the loan to make sense from a group-wide perspective. The loan must also be justifiable from the perspective of each legal entity participating in the arrangements.

In one extreme but typical example, a group finance company made a loan of over a billion dollars to a special purpose vehicle (SPV) which used the loan proceeds to acquire listed securities in the market. The SPV was a sister company of the finance company – in other words, they were both subsidiaries of the same holding company. The loan was expressed to be repayable on demand. As was expected, the value of the securities fell almost immediately, leaving the SPV with negative net assets. It would be hard to justify those arrangements as being for the corporate benefit of the lender, in the absence of additional arrangement such as a parent company guarantee to support the borrower’s obligations.

From the borrower’s perspective, a parent company guarantee in favour of the lender doesn’t help. If the guarantee were to be called on – and the parent procured repayment of the loan amount to the lender – the balance sheet position of the borrower would not be improved. It would simply owe the same amount to the parent rather than the original lender. From the borrower’s perspective, it would therefore need some additional comfort, such as a subordination agreement with the parent or some other commitment of financial support.

Please see the following link for examples of short-form intercompany loan agreements.

http://www.groupreorganisation.com/?p=115

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Dec
2018

seattle maternity leave employment attorney

categories: Law

The Family and Medical Leave Act is a law requiring covered employers to provide employees job-protected unpaid leave for qualified medical and family reasons. These reasons include personal or family illness, military service, family military leave, pregnancy, adoption, or the foster care placement of a child. The Family and Medical Leave Act requires larger employers to provide unpaid leave to certain workers. This law recognizes the growing needs of balancing family, work, and obligations, and promises numerous protections to workers. This law protects your job during a 12 weeks leave for following reasons- – To care for a new child – To care for a seriously ill family member – To recover from a worker’s own serious illness – To care for an injured service member in the family – To address qualifying exigencies arising out of a family member’s deployment. At work station normally we had many complaints against employer such as- – I am being discriminated against because of my sexual orientation. – I was fired after becoming pregnant – My boss passed me up for a promotion because of my race or religion. – My employer is not paying me for overtime. – I am owed back pay but my employer denies it. – I am not being paid for mandatory training. – I am not being paid for mandatory training. – My employer is sexually harassing me. – After returning from medical leave I was demoted. – I earned commissions that I was never given. To get out of all above problems, we have now family and medical leave act. If you believe that you are being discriminated against or that your employer is withholding wages there is something you can do. Too many times employees try to wait out a problem at work. If so then you need a dedicated team of attorneys who can protect your civil rights. A family medical leave act attorney can represent you very well. You should contact a team who deals in Family medical leave act attorney, unpaid wages lawyers seattle, sex discrimination employment attorney seattle, sex discrimination employment lawyer seattle, seattle race discrimination employment attorney, seattle race discrimination employment lawyer, seattle maternity leave employment attorney and seattle maternity leave employment lawyer.

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Dec
2018

How To Change An Existing Employment Contract

categories: Law

If you want to change an employee’s terms and conditions of employment, you will need to get their agreement first. Otherwise, the employee may be entitled to sue for breach of contract, or resign and claim constructive dismissal. You must tell the employee in writing about any changes no later than one month after you have made the change. Do changes have to be in writing? Agreed changes don’t necessarily have to be in writing. However if they alter the terms in your ‘written statement of employment particulars’,

your employer must give you another written statement showing what has changed within a month of the change. Employee Enforcement of the Right Employees have certain rights. These rights are enforceable by law: The right of fair treatment regardless of age, race, religion, gender, disabilities, or sexual preferences The right to equal treatment, also with regard to wages The right no be dismissed without proper cause and the correct procedures The right not to get fired for giving birth to a child Employees also have the right to a proper written notice time for termination of their work agreement in relation to the period employed Employees have the right for compensation when they are retrenched Safe workplace Terminating the Employment ContractBoth employer and employee can terminate the employment contract according to the terms contained within it. Either side can make a complaint against the other.

Breach-of-Contract Claims Both employers and employees can be in breach of a contract of employment. A breach of contract happens when either employee or your employer breaks one of the terms. If an employee continues to work under these changes without objecting, they may be regarded as having accepted the changes. Not all the terms of a contract are written down. A breach may be of a verbally agreed term, a written term, or an ‘implied’ term of a contract. Employer would normally use a county court for a breach of contract claim. The only way an employer would be able to make an application to an Employment Tribunal is in response to a breach of contract claim that an employee has made. The most common breaches of contract by an employee are when they quit without giving (or working) proper notice, or when they go to work for a competitor when their contract doesn’t allow it. Our Employment Law DocumentsAvailable documents include employment contract templates, as well as a director contract template and a range of employment policies. Our documents are designed for use in England and Wales. Our Contract of Employment Template is easy to customize to your business’ requirements.

They provide comprehensive legal protection, whilst avoiding excessive legal jargon. They have been designed with ease-of-use in mind. To this end, they include guidance notes. They are excellent value and available for immediate download. All the templates have been drafted by a team of Solicitors and Barristers who are expert in the field of employment.

If you want to change an employee’s terms and conditions of employment, you will need to get their agreement first. Otherwise, the employee may be entitled to sue for breach of contract, or resign and claim constructive dismissal. You must tell the employee in writing about any changes no later than one month after you have made the change. Do changes have to be in writing? Agreed changes don’t necessarily have to be in writing. However if they alter the terms in your ‘written statement of employment particulars’,

your employer must give you another written statement showing what has changed within a month of the change. Employee Enforcement of the Right Employees have certain rights. These rights are enforceable by law: The right of fair treatment regardless of age, race, religion, gender, disabilities, or sexual preferences The right to equal treatment, also with regard to wages The right no be dismissed without proper cause and the correct procedures The right not to get fired for giving birth to a child Employees also have the right to a proper written notice time for termination of their work agreement in relation to the period employed Employees have the right for compensation when they are retrenched Safe workplace Terminating the Employment ContractBoth employer and employee can terminate the employment contract according to the terms contained within it. Either side can make a complaint against the other.

Breach-of-Contract Claims Both employers and employees can be in breach of a contract of employment. A breach of contract happens when either employee or your employer breaks one of the terms. If an employee continues to work under these changes without objecting, they may be regarded as having accepted the changes. Not all the terms of a contract are written down. A breach may be of a verbally agreed term, a written term, or an ‘implied’ term of a contract. Employer would normally use a county court for a breach of contract claim. The only way an employer would be able to make an application to an Employment Tribunal is in response to a breach of contract claim that an employee has made. The most common breaches of contract by an employee are when they quit without giving (or working) proper notice, or when they go to work for a competitor when their contract doesn’t allow it. Our Employment Law DocumentsAvailable documents include employment contract templates, as well as a director contract template and a range of employment policies. Our documents are designed for use in England and Wales. Our Contract of Employment Template is easy to customize to your business’ requirements.

They provide comprehensive legal protection, whilst avoiding excessive legal jargon. They have been designed with ease-of-use in mind. To this end, they include guidance notes. They are excellent value and available for immediate download. All the templates have been drafted by a team of Solicitors and Barristers who are expert in the field of employment.

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Dec
2018

Residential Tenancies Mental Health Problems A duty to accommodate and a tenant’s right to remain

categories: Law

RESIDENTIAL TENANCIES: Mental Health Problems, a Duty to Accommodate, and a Tenant’s Right to Remain in their Home

By: Michael K.E. Thiele, B.A., LL.B., Plant Quinn Thiele LLP, Ottawa, Ontario Canada. Copyright 2007

The legislation governing most residential landlord and tenant relationships in Ontario is the Residential Tenancies Act S.O. 2006, c.17. (RTA). While the residential lease, written, oral, or implied, executed by the parties may inform the rights and responsibilities between the parties, the lease agreement may only establish those rights subject to the over-riding provisions of the RTA. In Ontario, the RTA applies to rental units in residential complexes despite any other Act and despite any agreement or waiver to the contrary. Further, where a provision in a tenancy agreement/ lease is inconsistent with the RTA or its regulations, that provision is void, and where the provision of another Act conflicts with the RTA the RTA takes precedence. In this regard, the freedom to contract is restricted; even prevented by the RTA, and appellate judicial pronoucement confirms that the RTA is effectively a complete code removing even the jurisdiction of the Superior Court in dealing with the relationship between landlord and tenant outside of the regime established by the RTA.

A recognized and statutorily mandated exception to the foregoing is the application of the Ontario Human Rights Code, the provisions of which take precedence over the provisions of the RTA. It is with respect to this exception that this paper is concerned, in the context of discussing recurring and difficult cases arising at the Landlord and Tenant Board, and how the Human Rights Code is helping tenants suffering from disabilities that cause behaviours which otherwise or normally would justify termination of their tenancies and eviction.

In practice before the Landlord and Tenant Board of Ontario, it has become increasingly apparent that a great number of tenants who are called upon to defend themselves and consequently their tenancies are suffering from some form of mental illness. In many instances, the mental illness is undiagnosed, but nevertheless is apparent to the observant onlooker. These tenants, but for the litigation support offered through Legal Aid Ontario, Community Legal Clinics, and generous lawyers, are left without the protections that one expects a Court to afford parties under disability. The Landlord and Tenant Board will allow proceedings to continue against a tenant, who by any reasonable measure would appear to be a party under disability, with the usual caveat being that they speak to duty counsel (who can not represent during the proceeding) prior to hearing.

Whether justice is wrought in these circumstances is a hard question; however, I believe it is fair to say that under these circumstances, the chance for injustice is greatly elevated. How then, and where, is the protection for parties under disability, for the mentally ill and infirm?

The starting point to deal with mental illness in residential landlord and tenant matters lies in the Ontario Human Rights Code R.S.O. 1990, c. H 19.. The code provides that -every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, disability or the receipt of public assistance-. A disability is defined to include a condition of mental impairment or a mental disorder.

In the recent Supreme Court of Canada decision in Werbeski v. Ontario (Director of Disability Support Program, Ministry of Community & Social Services), 2006 SCC 14 (S.C.C.) , the Court held that a provincially created statutory tribunal was obligated to follow the provincial human rights legislation when rendering its decision. The Court stated that statutory tribunals, which were empowered to decide questions of law, are presumed to look beyond the enabling statute, to apply the whole law to a matter properly before them.

The OHRC is a fundamental law. The Ontario legislature affirmed the primacy of the OHRC in the law itself, which is applicable both to private citizens and public bodies. Further, the adjudication of OHRC issues is no longer confined to the exclusive domain of the Ontario Human Rights Commission: OHRC, Section 34. The legislature has clearly contemplated that this fundamental law could be applied by the Court and other administrative bodies and has amended the OHRC accordingly.

In Werbeski , supra, the Supreme Court of Canada found that an administrative tribunal should apply the provisions of the OHRC when interpreting statutes because:

(i) The Ontario Human Rights Code states that it has primacy over other legislative enactments;

(ii) The recent amendments to the OHRC have removed the exclusive jurisdiction over interpretation and the application of the Code, from the Human Rights Commission.

In addition, the provisions of Section 11(2) and Section 17(2) and (3) of the OHRC specifically state that “a Court, as well as the Tribunal or the Commission, could apply these provisions of the OHRC when deciding if the needs of a person with a disability can be accommodated without undue hardship.” Section 47(2) of the OHRC states that the OHRC is paramount over other legislation. The Supreme Court of Canada has also held that the Human Rights Code takes precedence over agreements and contracts: Syndicat Northcrest c. Amselem, [2004] 2 S.C.R. 551 (S.C.C.).

APPLICATION TO LANDLORD AND TENANT BOARD PROCEEDINGS

The Divisional Court in Walmer Developments v. Wolch, on a appeal from a decision of the Ontario Rental Housing Tribunal (predecessor to the Landlord and Tenant Board), dealt with a situation where the tenant was diagnosed with schizophrenia. As a consequence of this condition, the tenant exhibited behaviours that included frequent screaming, throwing garbage loose in the halls, shouting profanity in the elevator, putting her property, such as her TV, out in the hall, and leaving food cooking on the stove unattended and hence filling the hall with smoke.

The Ontario Rental Housing Tribunal did not apply the Ontario Human Rights Code, and failed to give consideration to the implications of section 2 of the OHRC to the eviction proceedings before it. This was ultimately held to be in error as Section 17 of the Code provides:

17(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.

(2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

After some discussion of issues pertaining to the Ontario Rental Housing Tribunal’s ability to require accommodation (since ameliorated by statutory amendments), the Court held that a tenant suffering a disability has the protections of the OHRC, and most importantly that the question of accommodation shall be considered in the Tribunal’s/Board’s determination of whether to relieve from eviction under the discretionary provisions of the Tenant Protection Act/Residential Tenancies Act.

In Walmer, the appeal was allowed because it was ultimately demonstrated that the landlord could accommodate the tenant by notifying the tenant’s family of problems as they arose and that the tenant’s family could intervene. It was found that the tenant, when on her medication was controlled and her behaviour was then not objectionable.

Walmer, then, stands for the proposition that a landlord has a duty to accommodate a tenant who exhibits behaviours as a result of a disability, that otherwise would warrant termination and eviction, and where the accommodation does not amount to undue hardship, to actually take steps to assist the tenant in maintaining their tenancy by finding reasonable solutions to the problems alleged. Further, where a landlord fails to provide such accommodation, the Landlord and Tenant Board is directed to consider what may be a reasonable accommodation and where available, refuse termination and eviction to the landlord.

SINCE WALMER The Walmer decision has had the practical impact of sensitizing the Landlord and Tenant Board to the fact that many of the persons who appear before the Board are suffering from disabilities. While sensitized to the issue, it continues to be the case that the burden of establishing the existence of the disability; and further establishing what the reasonable accommodation may be; remains with the tenant. Where tenants do not have representation and/or do not have a support network the accommodation potential (and hence retention of the rental unit) offered by Walmer , is not pursued and hence is lost. Very clearly, in the Landlord and Tenant Board context, a human right is only a right if it is pursued and the Board will not, on an institutional basis assure that a mentally ill party is represented and that his/her human rights are asserted.

The Walmer decision has had a dramatic real life impact for many tenants. In particular, tenants suffering from schizophrenia, paranoid delusional disorder, dementia, alzheimers, hoarding instincts, and a host of other mental illnesses that from time to time cause behaviours that otherwise would warrant termination and eviction; now, are retaining their housing, with the landlord being required to take a little extra care for them. The Walmer development has been a positive change in that it has very clearly prevented homelessness of persons with mental illness who are able to be treated and who will function normally with the right support, understanding, and accommodation.

This is significant as the number of aging renters increases. Aging seniors, who haven’t had an issue with their landlords since the commencement of their tenancy are increasingly finding themselves before the Landlord and Tenant Board facing allegations of anti-social behaviours. Often these behaviours are age related as aging sometimes brings on mental illnesses or medical conditions that cause a person to exhibit anti-social behaviours. Often, these can be medically treated or ameliorated by additional care and support. These -mentally ill- tenants are often just regular folks whose entire life is subject to being turned upside down through eviction because they got sick. Through eviction they lose the stability that having a place to live gives, it robs them of peace, their routines, and likely exacerbates any medical condition or mental illness through the stress caused by the eviction.

While Walmer has been a tremendous help to many tenants by forcing the Landlord and Tenant Board to recognize -disabilities- and to impose accommodation of those disabilities where reasonable; the procedures of the Landlord and Tenant Board in adjudicating cases dealing with the mentally ill continue to disregard the fact that in many instances these tenants are not only mentally ill but incompetent as well. From the perspective of the Landlord and Tenant Board it never has a party before it that can be a -person under disability- as in the sense of the Rules of Civil Procedure. Query whether this is just.

CONCLUSION The issue that this paper started with remains unresolved. Persons suffering with mental illness still face procedural disadvantage at the Landlord and Tenant Board. The Landlord and Tenant Board can make a person homeless. Hopefully, the law will eventually recognize that the mentally ill and incompetent deserve procedural protection and it seems fair to suggest that one avenue to such protection is through the ideas expressed by the Court in Walmer.

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Dec
2018

Different Types Of Legal Services Offered By Solicitors

categories: Law

If you are faced with legal issues, there is no other way of getting out or ahead of them other than getting assistance from someone who knows legal matters best. A lot of solicitors in the United Kingdom proliferate over the country to extend help to people who need to go through due processes. Every solicitor works on varied specialisations, and you should take it upon yourself that the firm of your choice is offering the legal service that you need.

An example of common legal services provided by solicitors is residential conveyance. House transfers can leave you stressed, especially the paperwork. Properties entail legal papers, and whether you are a greenhorn buyer or an experienced property developer, it can be beneficial to seek help from solicitors.

There are a lot of concerns regarding property ownership – but they can possibly work on it for you. Dealing with properties would mean having to deal with land registration, or possible mortgages. You might have queries about boundaries and how much claim you can acquire. These can be answerable by legal counsels who have gained years of experiences in handling legal land titles for different kinds of owners. Moreover, in the case of property developers, assistance can be addressed specifically to the likes of planning agreements, conditional contracts, pound acquisitions and unilateral undertakings.

Suppose you are planning to invest in a small-scale business. Eventually, if coupled with hard work and perseverance, you may develop into a multinational company. Chances are you need to keep your business on the road and you need a reliable team of law experts to take care of commercial legal matters.

Solicitors give assistance to private or public companies that want to put in effort for their company’s legalities. These people will work closely with you, like they are part of your team, and will work towards achieving the same goal as yours.

In a similar scenario, should you be caught off guard in a corporate crisis, there are groups of lawyers who can help you in difficult decision making to recover your investment and re-align your corporate goals. Solicitors will work as your ally, so that all transactions are marked with legality.

For employers and employees who share a working relationship, legal advice is indispensable. Both parties are covered by employments laws that are very well covered and defined upon contract signing – a proof of mutual agreement. For an employee’s part, solicitors can walk him through employments rights that are owed to him. Employers, on the other hand, can consult for legal advice regarding revisions of new contracts before they are implemented to new workers. Employment policies are dynamic and if an employer seeks legislation of new rules, implementation is possible through a revised contract. However, even in the best of companies, a power struggle between both parties is inevitable.

The line can be therefore drawn if there are rules to set things straight and there are lawyers who can give no-nonsense counsel. Consulting legal solicitors will pave the way for an honest appraisal of the matter, so that you will know where exactly you stand and the other will know where you are coming from.

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