10 January 2014

In business, a good working knowledge of the law is essential

I have encountered many businesspeople that express the opinion that it is unnecessary to know what their legal obligations are until a dispute arises, at which time they call in the lawyers. I have always maintained that this results in a waste of time and money, which would have been better spent earlier in insisting on training and compliance in the matter in question.

The management of any business will require familiarity with the specific regulatory requirements for its industry — that goes without saying! — but there are more general areas that call for awareness as well. I will only list those that would affect daily decision making, as opposed to the more esoteric choices.

Take commercial law, and more specifically the law of contracts:
  • Here in Ontario, day-to-day work will require knowledge of local provincial law. However, if you deal in Quebec, the requirements of the Civil Code (and especially its provisions relating to good faith) will definitely impact how you conduct business there.
  • If you deal internationally, be aware that Canada is a party to the UN Convention on the Contracts for the International Sale of Goods, which applies to a broad range of business deals except where a contract explicitly opts out of it. On the other hand, if your contract is with a US party, and it opts out of the CISG in favour of the law of a US state, you will need to be familiar with the Uniform Commercial Code (and its provisions relating to good faith and the "battle of the forms" are among the more notorious of the differences with Ontario law).
Some other areas to consider:
  • You also need to be familiar with employment and human rights law, in order to ensure that your staff are being fairly treated.
  • Do not forget the impact of the various taxation laws that will impact your business — payroll taxes, GST/HST, and customs duties, for a start. If you are involved in capital investment decisions, the rates attached to the various asset classes that attract capital cost allowance under the Income Tax Act will impact any rate-of-return calculations in your appraisals
  • For cross-border transactions, remember the various import/export controls and economic sanctions that Canada has in effect with respect to certain products, countries and organizations.
  • If you are dealing with financial institutions, or with customers or suppliers who are in financial difficulty, you will need to know the impact of Canadian insolvency law, especially concerning the Bankruptcy and Insolvency Act  and the Companies' Creditors Arrangement Act. Also keep in mind the common-law principle of "fraud upon the bankruptcy" that voids provisions that attempt to skirt bankruptcy law, which is still alive and well as shown here and here.
If you are a director or officer of a corporation, you will need to know the various types of civil and criminal liability that your actions may attract, in addition to your obligations under the incorporating statute (such as the Canada Business Corporations Act).

If you think this is a daunting list, there is one more thing. If you are a US citizen or "green card" holder, your obligations are expanded even more under US taxation and trade law, as those are considered to apply to you worldwide. Now that is an area that will really require good advice!

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