Ratzlaff Law Blog https://blog.ratzlafflaw.ca Thu, 09 Mar 2017 02:30:15 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.8 https://blog.ratzlafflaw.ca/wp-content/uploads/2016/10/cropped-ms-icon-310x310-32x32.png Ratzlaff Law Blog https://blog.ratzlafflaw.ca 32 32 Why you should make a will https://blog.ratzlafflaw.ca/69/ Thu, 09 Mar 2017 00:25:35 +0000 https://blog.ratzlafflaw.ca/?p=69 … ]]>  

What is a will?

A will is a legal document, usually 3 to 10 pages, by which you express your wishes regarding the distribution of your property, the care of any minor children, and the general management of your estate after you die. Your estate is generally what we call your property, debt, and legal rights/responsibilities, all of which live on after you die. These things must be dealt with, similar to if you were alive. So your will specifies one or more persons to manage your estate and wrap everything up. That person must follow your instructions in your will. This person is called an “executor” or in Alberta a “personal representative”.

Why you want a will

Some of the benefits of having a will include:

  • deciding who receives a portion of your assets when you die;
  • deciding who will care for your children when you die (if you have any); and
  • deciding who will manage your assets when you die.

You can also put constraints on some of your gifts such as leaving property in trust for certain people.

What happens if you die without a will?

A popular misconception is that if you die without a will, your property goes to the government, like a tax. This is incorrect. However, here are some things that may happen if you die without a will:

  • someone must apply to the court to be allowed to manage your estate;
  • your assets are distributed in accordance with the default rules decided by the government (eg your spouse gets everything, or if you do not have a spouse, your children get everything, or if you do not have children…etc);
  • there will be no conditions on any of your beneficiaries’ inheritances (eg as long as they are 18 years old, they will get access to their inheritance); and
  • someone must apply to the court to become guardian of your minor children.

Other documents

There are also other documents you should consider having as part of planning for the future. We always recommend doing an enduring power of attorney (EPA) and a personal directive (sometimes called a “living will”) along with a will. Briefly, an EPA gives someone the power to manage your financial affairs if you become incapacitated. A PD is similar but has to do with personal and health care decisions.

Ratzlaff Law is very happy to discuss with you about planning your estate, including making a simple or complex will.

How do you know whether you are living common-law? https://blog.ratzlafflaw.ca/56/ Fri, 06 Jan 2017 18:17:55 +0000 https://blog.ratzlafflaw.ca/?p=56 … ]]> You’ve moved in with your significant other. You are both fairly independent: you both have well-paying jobs, you both pay half of the rent or mortgage, you both contribute to groceries (or to take-out, as the case may be), and you both generally keep your assets and debts separate (e.g. you both have your own investments, bank accounts, and vehicles).






Naming your business: Consider these three things https://blog.ratzlafflaw.ca/48/ Thu, 10 Nov 2016 17:23:22 +0000 https://blog.ratzlafflaw.ca/?p=48 … ]]> As a business owner, you should consider at least three things when naming your business:

  1. The difference between a corporate name, a trade name, and a trademark;
  2. Whether to register a registered trade name or a trademark; and
  3. Whether you might get into trouble using your preferred name.

Know the difference: a business, a sole proprietorship, and a corporation

It is important to distinguish between what we mean by a business, a sole proprietorship, and a corporation. They are often conflated. A business is the activity of making, buying, or selling goods or providing services. A business is carried on by either a sole proprietor (which is an unincorporated individual person) or a corporation formally incorporated (usually with the assistance of a lawyer).

Know the difference: a corporate name, a trade name, and a trademark

Business name

The name you use as your business identity is one of the most basic and important marks of branding. As a sole proprietor, you may simply use your own personal name (e.g. “Luke Ratzlaff”) since it’s you who is personally offering your service or product for sale. In fact, I ran a technology consulting business as a sole proprietorship for many years this way.

Similarly, a corporation can use its registered corporate name (eg its numbered company number or the name assisted to it when it was incorporated). Think of a corporate name as equivalent to an individual’s birth name. Just as I can change my name from “Luke Ratzlaff” to “John Doe” (here are the instructions; it costs only $120), a corporation can also change its name (which involves amending your corporation’s Articles).

Trade name

Whether a sole proprietorship or a corporation, you can operate your business under a name of your choosing. The name you choose need not have anything to do with your own personal name or your corporation’s name. For example, the name I use for my law firm—my legal services business—is “Ratzlaff Law” even though my corporation’s legal name is “Luke Ratzlaff Professional Law Corporation”.

The name you use is called a trade name.

To assist in keeping track of trade names, Alberta has a registry allowing you to register a trade name. Counterintuitively, this does not reserve the name for your use only; anyone can register a name already in use or already registered. It does help with making it easier for others to confirm that you are using a particular trade name for your business.

The registration of a trade name is relatively easy; many of our clients are comfortable doing it themselves, however, we do provide this service for a nominal fee.


Trade names and trademarks are different but related concepts. A trademark is an exclusive right to a group of words, a logo, sounds, or designs (or a combination of these things) to help the public distinguish your goods or services from the goods or services of others. For example, the Nike swoosh logo.

A trade name can be a trademark if the name is used as an identifier of the goods or services provided by your business, which is often the case. For example, “Sunlife” may be both a trade name and a trademark.

Trademarks protect your business’s image because over time trademarks come to stand for not only the actual goods or services that your business offers for sale, but also the reputation of your business. This is why trademarks are so valuable: a business’s reputation is extremely valuable.

There are two types of trademarks:

  1. an unregistered trademark, created by using a mark as a trademark.
  2. a registered trademark, created by meeting the trademark requirements of the Canadian Trade-marks Act (the “Act”).

With unregistered trademarks, to enforce your mark (e.g. to legally challenge someone else’s attempt to use the mark), you must prove prior use of your mark in connection with your business. The burden of proof is on you.

Registered trademarks are often easier to protect years down the line, though they also require more upfront administrative work. However, registered trademarks also have other advantages over unregistered trademarks (such as trade names) including the following:

  • registration provides protection of your trademark across Canada, rather than only the in the geographical area where your mark is known to your customers;
  • registration puts others on notice about your mark and helps prevent others from registering a similar mark, those possibly preventing future litigation;
  • registration provides additional protection even before you use begin using your mark;
  • Registration provides additional statutory remedies against trademark infringement; and
  • After 5 years of being registered, a trademark becomes incontestable.

Should you register a registered trade name or a trademark

The decision to register a trademark is a business decision, but often worth the effort considering the relatively low cost of applying for registration.

The following are factors that you should consider when making your decision:

  1. Are you presently using or will soon be using a mark?
  2. Do you anticipate using your mark nationally or internationally?
  3. Do you have time and/or funds to proceed with an application now?
  4. Are you sure are you that your mark does not infringe on another business’s mark?
  5. What if a competitor or another business started using a mark similar to yours? Will this be a significant problem?
  6. Do you anticipate the future reputation that your mark represents to be valuable in the future and possibly worth selling?

Potential liability: Whether you might get into trouble using your preferred name

First, operating a business under a trade name or trademark does not limit liability. Liability remains with the entity operating the business, whether it is you individually as a sole proprietor or a corporation. One of the reasons why many business owners run their corporation through a corporation is to limit certain types of liability (for example certain types of debt or negligence).

Second, prior to branding your business, you should ensure you are not infringing on someone else’s registered or unregistered trade name or trademark. If you are, the other business owner may demand that you cease using the brand or may take legal action against you (e.g. through the common law tort of passing off or one of the several statutory remedies provided by Act).

Ratzlaff Law is, of course, pleased to help you decide whether to apply for a trademark or to apply for a trademark.

Suing without a lawyer https://blog.ratzlafflaw.ca/28/ Sat, 29 Oct 2016 22:33:06 +0000 https://blog.ratzlafflaw.ca/?p=28 … ]]> This post answers:

  1. what does it mean to sue someone?
  2. do you need a lawyer to sue someone? (answer: no)
  3. how do you sue someone?

What does it mean to sue someone

The purpose of suing someone (whether an individual or a company) is to get compensation for a loss or harm that the other person caused you and has refused to rectify.A loss or harm can be towards you personally,  your property, or an economic loss (such as for failing to abide by a contract or agreement).  Someone can cause a loss or harm by their action or inaction. Suing someone refers to the formal legal process needed to ask a court to order this compensation; this process is also sometimes called “filing a lawsuit”, “bringing a claim”, “commencing legal proceedings”, or “taking legal action”. Examples of situations that might lead to you suing someone include:

  • you lent someone money and they are not paying you back;
  • you purchased something on the internet, but what you received was not what you were told you were buying; or
  • someone damaged your property and refuses to pay for repairs.

Do you need a lawyer to sue someone

There are actually two “levels” of Alberta courts in which you can sue: Provincial Court (also known as small claims court) and the Court of Queen’s Bench (also known as the superior court). Small claims court is generally recommended if the financial loss that you are suing for is under $50,000, which is the maximum you can sue for in small claims court. Small claims court is good because it has relatively simple procedures compared to the superior court that ultimately reduces your costs, whether or not you hire a lawyer to represent you. It is these less complex procedures that make small claims court much easier for you to navigate without representation from a lawyer.

Many people sue in small claims court without representation from a lawyer. Some questions you might ask when deciding on whether to proceed on your own include:

  1. how complex are the legal issues that you are suing about?
  2. how much is your case worth compared to your time?
  3. will the defendant hire a lawyer?
  4. are you organized and pay attention to detail?
  5. are you intimidated by authority?
  6. are you intimidated by the defendant?

If any of the above may pose a problem for you, you should consider hiring a lawyer to help you through all or some of your lawsuit.

How do you sue someone

Before starting a lawsuit you should prepare. You should identify and quantify what you have lost. This is sometimes difficult to do but important because you must be clear about what you are asking the court to do. You should also collect and preserve as much evidence as you can to prove your loss. Only relevant and material evidence will be considered by a judge. If you do not have evidence to back up your claim (eg receipts, photos, reports, agreements, emails, etc), a judge cannot give you what you ask for.

The following are the main required steps for suing in small claims court:

  1. Download a Civil Claim form from the Alberta Courts website. Read the instructions carefully and fill it out.
  2. File four copies of the completed Civil Claim form at the courthouse (usually the courthouse closest to where you suffered your loss).
  3. Serve a copy of the filed Civil Claim on the other party (now called the “Defendant”) by personally delivering it them (or by hiring someone to serve it on them) or mailing it to them by registered mail (note there are also other ways of serving a Defendant).
  4. Download and an Affidavit of Service form, which can be downloaded from the Alberta Courts website. Read the instructions carefully and fill it out. You must swear this Affidavit of Service before a lawyer or a commissioner for Oaths.
  5. File two copies of the completed Affidavit of Service form at the courthouse.
  6. Wait for the Defendant to file and serve you with a Dispute Note / Counterclaim. The Defendant has 20 days to file from the time that they were served with your Civil Claim. Check with the court after 20 days if a Dispute Note was filed.
  7. If no Dispute Note is filed, you may request a Default Judgment (if you are claiming on a simple debt) or a Noting in Default (for more complicated claims). This means, in short, a judge will decide the case and a Judgment will be issued, (usually) in your favour. This ends the lawsuit.
  8. If the Defendant files a Dispute Note the court will schedule a pre-trial conference where you and the Defendant must meet together with a Judge to discuss how the matter might be resolved, whether the matter should proceed to trial, and what evidence must be exchanged. Pre-trial conferences must be set many months in advance.
  9. Each party should exchange the document evidence that each will be relying on if the matter proceeds to trial.
  10. The pre-trial conference takes place. A trial date is scheduled. Trials are being set several months in advance.
  11. Further exchanges of documents between parties are made, often in accordance with direction from the pre-trial conference.
  12. The final step is to attend a trial of your civil claim. How to run a trial is a subject that needs its own post. It is recommended that you consult the resources below (or a lawyer) for guidance on what to expect at trial. At the end of the trial, judgment is granted and your lawsuit ends.
  13. If you are successful at trial, the defendant may have been ordered to pay you. If the defendant pays, great. If not, you must now take steps to collect from the defendant (see this helpful guide).

Note that parties may settle the matter at any point in this process, which also ends the lawsuit.