Protecting Your Business

Ask the Experts – An Advice Series for Entrepreneurs

AGENDA

RBC Royal Bank:

• Introduction

Perley-Robertson, Hill & McDougall LLP/s.r.l.

• Intellectual Property Protection, Trademarks, Patents, Employment Contracts, Dealing with problem employees

Speakers: Paul Donovan, Emily Rahn

AGENDA

Welch, LLP:

• SRED, IRAP grants, Government Programs

Speaker: Terry Lavineway

Protecting Your Business and Its Heirs

• Always insure your business credit separately.

Intellectual Property

Intellectual Property

• 3 main areas of intellectual property

• (i) Patent

• (ii) Copyright

• (iii) Trade-mark

Intellectual Property

Registration Benefits & Process: Patent

Registration Benefits & Process: Copyright

Registration Benefits & Process: Trade-mark

Post-registration Issues: Trade-mark

Protecting Your Business

Employment Contracts and Dealing with Problem Employees

Emily S.S. Rahn, B.Comm, LL.B.

Perley-Robertson, Hill & McDougall LLP

Tel: 613-566-3850

Email: erahn@perlaw.ca

Statutory Scheme

Employment Standards Act, 2000. S.O. 2000, c. 41-Sets minimum terms and conditions of employment including, work hours, vacation and termination of employment

Human Rights Code, R.S.O. 1990, c. H.19-Prohibits discrimination on a list of prohibited grounds, including age, sex and marital status

Labour Relations Act, 1995. S.O. 1995, c. 1-Protects employees who combine into unions-Sets out process, rights and obligations for collective bargaining

The Employment Standards Act

Sets out minimum terms and conditions of employment that apply to most employees in Ontario

The standards set out in the ESA are only minimums. Better terms may exist under an employment contract (either written or implied by the common law), employer practices or collective agreements.

Exemptions from all or part of the ESA:•Employees covered by federal employment law (i.e. tele-communications, international/inter-provincial transportation, and bank employees)•Diplomats, elected officials, religious or judicial office holders•Students on work experience programs•Police officers

ESA Minimums

Hours of Work

-Limited to a maximum of 48 work hours per week

-A regular workday may be established that is up to 13 hours long

Overtime

-General rule: overtime must be paid for all hours worked in excess of 44 hours per week

Public Holidays

-Employees are entitled to a day off with public holiday, on the 9 days designated as public holidays in Ontario

ESA Minimums

Vacation

-Employees are entitled to at least 2 weeks of vacation with pay upon the completion of 12 months of employment

Termination

-Employees are entitled to notice of termination

-The minimum notice requirements under the ESA are:

3 months, but less than 1 year 1 week

1 year, but less than 3 years 2 weeks

3 years, but less than 4 years 3 weeks

4 years, but less than 5 years 4 weeks

….. Up to a maximum of 8 weeks

Benefits of Written Employment Agreements

- Defining job description and duties expected of employees

- Ensuring confirmation that the employee has the skills to

perform the duties of the position

- Providing for a probationary period

- Specifying termination entitlements

- Setting out or specifying internal policies

- Confirming, where appropriate, obligations of non-disclosure

and non-solicitation

- Clarifying all aspects of the employee’s compensation

Importance of Termination Provisions

Termination provisions are the most litigated aspect of the employment relationship.

Areas to address in an employment agreement:

-Probationary period (including termination during probationary

period)

-Termination by employee (optional)

-Termination for cause

-Termination without cause

Other Considerations

Type of relationship: Employee vs Independent Contractor

Length of employment relationship: Fixed-Term vs. Indefinite

Industry-specific considerations

-Intellectual Property

-Application of other statutes (i.e. Personal Health Information Protection Act)

The Law is Constantly Evolving

Emily S.S. Rahn, B.Comm, LL.B.

Perley-Robertson, Hill & McDougall LLP

Tel: 613-566-3850

Email: erahn@perlaw.ca

Government Incentives Strategy

Consider the following with respect to government incentives:

Are you maximizing government assistance via tax credits, grants, loans and rebates?

Are you reasonably certain that you will receive the incentive?

Do you know the timing of the assistance? Is it predictable?

Maximizing Access to Government Incentives

Less Common More CommonATTC SR&ED

OCASE OIDMTC IRAP

OPAEMA FedDev

IDF IAF

So many incentives; so little time and resources

Holistic Approach

Overview of the business Recent past Plans for the future

Overlay landscape of incentives Identification of where government assistance is possible Reduce possibilities where:

• net benefit of the possible assistance < (internal + external costs to prepare/apply and report/defend)

Incorporate necessary documentation and evidence preparation into existing business processes

Full Entitlement

What can you claim? Misconceptions and misinformation

• Can’t claim SR&ED because a customer paid for it

• Can’t claim OIDMTC because we contracted out most of the software development

• Claiming costs outside eligible jurisdictions Know the rules for each respective incentive – or ask for help

• Tax credits – legislation defines what is eligible but not always clear

• Discretionary incentives – guidance is often vague and at times, somewhat flexible

Stacking• What are the restrictions amongst the incentives – how much

government assistance is possible?

• E.g. does a grant impact an SR&ED claim? Does a loan? Does an equity investment?

Certainty of the Outcome

Tax credits: when are you confident that the outcome of the claim will be as

expected?• Different processes for different tax credits: SR&ED vs. OIDMTC

Discretionary incentives Very competitive landscape for discretionary incentives: free or very

cheap money. Need to examine the risk-reward Pre-approval required

Timing Considerations

Tax credits: Is the credit claimed on a current tax return or an amendment? Are there other tax issues in existence which would affect the timing

and resolution of the tax credits?• Different processes for different tax credits: SR&ED vs. OIDMTC

Discretionary incentives How far in advance is pre-approval required prior to launching the

project/initiative? How long after the expense is incurred will the reimbursement be

issued?

Final Points

Significant amounts of government assistance are available

Provincially, federally and internationally

Know the rules and/or get help Look for the best net results PLAN AHEAD

QUESTIONS