Lapointe Rosenstein Marchand Melançon LLP updates

To be an employee or not to be – that is once again the question
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 13 November 2018

The issue of whether a franchisee is an employee or an independent contractor has been debated on numerous occasions and was once again raised in a recent Quebec Court of Appeal decision. In its decision, the court emphasised that when analysing whether a franchisee qualifies as an employee or an independent contractor, the courts should look beyond the terms of the agreement between the parties. While this decision may worry certain franchisors, there are a number of mitigating factors to consider.

Franchisor caught between rock and hard place: importance of clear exclusivity clauses
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 21 August 2018

Franchise arrangements often involve a three-way relationship whereby franchisors enter into commercial leases with landlords and then sublease the rented premises to franchisees. Such leases often contain an exclusivity clause limiting the landlord's ability to lease nearby commercial space to competitors of the franchise network. The Superior Court of Quebec recently confirmed that exclusivity clauses must be interpreted and applied restrictively so as not to unduly interfere with the parties' freedom of contract.

Franchisors rejoice! Ontario Court of Appeal raises bar for franchise rescission
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 05 June 2018

The Ontario courts have recently endeavoured to clarify the outer limits of the parameters within which a franchisee may exercise its right to rescind a franchise agreement. A long-awaited Ontario Court of Appeal decision sends a clear message to the lower courts that a franchisee's right to rescission is an exceptional measure that should not be granted lightly, and that the terms and conditions negotiated between a franchisor and its franchisee cannot be ignored.

Rescission or bust: statutory requirements trump franchisee's insouciance
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 13 February 2018

The Ontario Court of Appeal overturned a lower court's finding that a deficient disclosure document may be forgiven if the franchisor has provided the franchisee with sufficient information to make an informed decision regarding the acquisition of the franchise. It also held that, where disclosure is insufficient, rescission may be granted regardless of whether the franchisee has read the contents of the franchise disclosure.

Happily ever after: the perpetual franchise
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 10 October 2017

Renewal clauses are common in commercial contracts, particularly in the case of franchise agreements. The Supreme Court recently upheld the validity of a clause which had the effect of allowing a franchisee to renew a franchise agreement perpetually. In its landmark judgment, the court affirmed the lower courts' determination that a renewal clause which does not limit the number of times that a contract of affiliation may be renewed is legal pursuant to Quebec civil law.

Structuring royalties on professional fees
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 27 June 2017

Until recently, there was significant doubt as to the validity of fees payable by professional franchisees on the basis of professional revenue. However, two decisions in Quebec have established certain conditions for such fee payments to be considered valid, in particular that the fees are related to the fair market value of the goods or services provided to the professional.

Get out while you can – franchisors navigating the consumer class actions maze
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 04 April 2017

A recent Quebec Court of Appeal decision reversed a Quebec Superior Court ruling which had granted authorisation of a proposed class action by consumers against a franchisor for alleged misrepresentations made by its franchisee with respect to the purchase of an extended warranty for consumer goods. The case illustrates the difficulties often faced by franchisors in relation to class action proceedings brought by consumers at the authorisation stage.

Should franchisors avoid entering into franchise agreements before selecting a franchise location?
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 31 January 2017

A recent Ontario Superior Court of Justice decision has created an unprecedented expansion of a franchisor's disclosure obligations, significantly affecting franchisors' disclosure practices when entering into franchise agreements before the franchise location is determined. This case is troubling for franchisors, for which it has been common practice to enter into franchise agreements before selecting a specific location for the franchise.

To the end of the term and beyond: perpetual renewal clauses considered legal
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 12 July 2016

The Quebec Court of Appeal has recently addressed whether a franchise agreement may include a clause that would have the effect of renewing the agreement perpetually. This decision is a reminder of the importance of clear renewal conditions and processes in place in the context of franchise, affiliate and banner association agreements.

Surprise! Franchisors may be unable to rely on enforceable non-compete covenants
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 17 May 2016

A recent decision confirms that franchisors may face resistance in enforcing non-compete covenants in circumstances where they are experiencing uncertainty as to their continued presence in a given market or contemplating downsizing their franchise network, as these factors may have a significant impact on what is considered to form part of the franchisor's legitimate interests as they relate to the non-compete covenants of franchisees.

Joint employer liability in franchise relationships
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 16 February 2016

Recent decisions of the US National Labour Relations Board may ultimately undermine certain advantages of franchising arrangements in the United States and could give rise to a willingness by decision-making authorities to blur the fundamental legal separation between franchisors and their franchisees. Now, certain developments relating to labour and employment law suggest that there may be an impending risk to franchisors in Canada.

Proceed with caution: why Dunkin' Brands may be applied under common law
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 27 October 2015

In Dunkin' Brands the Quebec Court of Appeal ruled on the scope and extent of a franchisor's contractual obligations based on both explicit contractual terms and implicit principles established by law. The decision forms part of an interesting convergence between the duty for parties to conduct themselves in good faith under Quebec civil law and the duty of good faith in contractual performance in common law provinces.

Dunkin' Brands: Quebec court finds franchisor has duty to support its brand
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 11 August 2015

The Quebec Court of Appeal has issued its eagerly awaited decision in the long-running Dunkin' Brands case. Throughout this saga, the Quebec courts have made significant determinations with respect to the scope and extent of a franchisor's contractual obligations based on explicit contractual terms and implicit principles that are established by law.

Franchisors must be vigilant in monitoring contractual compliance
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 12 May 2015

In a recent decision the Quebec Superior Court recognised that under Quebec civil law, there is a distinction between the concepts of best efforts and reasonable efforts pursuant to the terms of a contract. As a result, practitioners should proceed with caution when drafting franchising agreements to ensure that they properly reflect the parties' obligations and the efforts that a party is expected to use in fulfilling its contractual obligations.

Franchise disclosure legislation does not apply to trademark licence
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 17 February 2015

The Ontario Superior Court of Justice recently found that a trademark licence agreement was not subject to the Arthur Wishart Act, Ontario's franchise disclosure law. The judgment provides informative guidelines for businesses that wish to avoid falling within the requirements of franchise disclosure legislation when licensing trademarks in Ontario.

New application of franchise disclosure remedies?
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 11 November 2014

The Ontario Superior Court of Justice recently found that certain disclosure deficiencies alleged by a franchisee were not tantamount to no disclosure at all and did not give rise to the franchisee's right to rescind the franchise agreement on that basis. This decision may constitute an important turning point in the interpretation of disclosure obligation incumbent upon franchisors under the Arthur Wishart Act.

Restrictive covenants and non-arm's-length third parties
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 06 May 2014

The Ontario Superior Court of Justice recently sent a clear message that it will look past transparent and ill-advised methods of working around non-compete and non-solicitation covenants in franchising agreements. The court granted injunctive relief against the husband of the defendant franchisee's principal and his company, despite them not being a party to the franchise agreement.

Outer limits of late payment and collection fees in Quebec
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 07 January 2014

A persistent concern in Quebec has been whether interest or late payment clauses could be considered abusive under civil law in the context of the rules of interpretation applicable to contracts of adhesion – as franchise agreements are normally considered – or by being re-characterised as penalty clauses that may be reduced by the court if considered abusive in any contract.

Courts rule on the duty to inform
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 16 July 2013

The courts in Ontario have recently had to interpret the statutory duty of fair dealing in the context of claims of breach of such duty by reason of a franchisor withholding critical information that influenced the franchisee's decision not to exercise a right of first refusal. The Quebec Court of Appeal also recently issued a decision of potentially significant import with respect to the duty to inform under the civil law of Quebec.

Are provisional injunctions still available for competition by former franchisees?
Lapointe Rosenstein Marchand Melançon LLP
  • Franchising
  • Canada
  • 02 April 2013

The Quebec Superior Court recently rejected a motion for a provisional injunction to prevent a former franchisee from operating another restaurant from the same premises where it had previously operated the franchised restaurant. The case will now go to trial on the merits; the court's analysis of the non-compete provision and the obligation to de-identify will be of great interest in the Canadian franchising community.

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