Hansard does not record standing ovations.

For what it’s worth…

The Acting Speaker (Mr. Jim Wilson): Pursuant to standing order 98, the honourable member has 12 minutes for her presentation.

HELENA JACZEK, MPP

Ms. Helena Jaczek: At the outset I would like to make sure that everyone knows that this bill, Bill 102, An Act to amend the Arthur Wishart Act (Franchise Disclosure), 2000, is co-sponsored by my colleague from Parkdale–High Park and my colleague from Parry Sound–Muskoka. I think that this type of collaboration is something our constituents expect of us. We know that in our ridings many people did not actually vote for us or our party and it is our duty to represent them in this House wherever we can. It has been certainly an interesting and very satisfying experience to work with my two colleagues on this particular bill.

I’d also like to recognize in the west members’ gallery some supporters of the bill: Les Stewart, the founder of the Canadian Alliance of Franchise Operators, and Detective Fred Kerr, the corporate fraud manager for York Regional Police’s major fraud unit.

…

The Legislative Assembly of Ontario
Toronto, Canada
September 23, 2010

• http://www.wikidfranchise.org/20100923-second-jaczek1
• http://www.ontla.on.ca/web/house-proceedings/house_detail.do?Date=2010-09-23&Parl=39&Sess=2&locale=en#P953_222324

After 10 years, the Ontario Wishart Act is getting a little tweaking

Bill 102 is important.

But what’s revolutionary is the way the Ontario courts are back-filling the Wishart Act with real umph.

This judge-made or case law is designed to modify franchisor behavior.

A $50,000 appeal award upheld for mental distress in a low-rent coffee joint?

I understand this is the 1st time a breach of good faith and fair dealing provision has triggered $ on its own. And it was accomplished by a non-”franchise bar” attorney in Ottawa, too.

I wonder…

– Queen’s Park, Toronto Ontario Canada: Home of the Legislative Assembly of Ontario

The Grange franchise investigation stands the test of time

Samuel Grange, Q.C. and his 1971 “Report of the Minister’s committee on Franchises”: the Grange Report.

In 1970, the Honourable Arthur Wishart, W.C., M.P.P. (Sault Ste. Marie),  Minister of Financial and Consumer Affairs commissioned a public inquiry into referral sales, multi-level or pyramid sales, and franchises. He appointed Grange to head a public inquiry. The current Ontario law was named in 2000, specifically to point backwards in time to Grange’s independent recommendations.

Even after almost 40 years, Justice Grange cuts through the nonsense.

SUMMARY OF RECOMMENDATIONS

Franchises
1. Legislation is to apply to all industries and to all franchises within each industry
2. Prohibition against dealing in franchises except as provided
3. Franchisor to file prospectus setting forth detailed information on scheme
4. Franchisee to have compulsory 48-hour cooling-off period before execution of agreement
5. Franchisee to have right to apply to Tribunal or Court to determine,
(a) whether contract is fair; and
(b) whether conduct of franchisor is fair in circumstances
6. Tribunal or Court to discourage following:
(a) arbitrary termination
(b) arbitrary refusal of assignments or renewals
(c) arbitrary forfeiture of deposits
(d) forced purchases and secret profits
(e) competitive and discriminating practices by franchisors

General
1. The formation of a separate branch of division with its own Registrar to administer multi-level and franchise matters.
2. Control of advertising
3. Regular renewal of permission to operate to be required
4. Suspension and cancellation of permission to operate
5. Regular inspection of records
6. Provision for escrow of investments or fees to protect investors and franchisees
7. Application of legislation to leases as well as sales

– Full Report

It is my impression that the current Ontario judiciary is on same frequency as was retired Appeal Court Justice Grange.

York University’s Osgoode Hall Law School Alumni Association Honours Three Outstanding Members of the Legal Profession

The public Role of Tier 2 franchise attorneys

In my post On the Nature of Tyranny, I tried to present Northrop Frye‘s analysis of William Blake.

Blake saw the fundamental struggle on earth between two opposing forces:

1. champions of tyranny (not the apparent nasties but those that profit from defending them; those that write for power; sophists) and
2. visionaries (the “enlightened ones” lol).

Franchise bar: In advanced franchising cultures, there are two archetypal fixers: one for the franchisors and ditto for franchisees.

Everyone else in the franchise bar is lower status individual, dependent on these two alpha males and the evolution of the bar’s sociology: norms, history, rewards/punishments, career advancements, access to law makers/regulators, referrals, who is “us” and who is “them”,  etc.

One role of the Tier 2 attorneys is to engage in battles on behalf of the pack when here is a threat.

Their out-of-character behavior explains a lot about a system that created, empowers and defends tyrants.

So Ontario, Canada is a worldwide franchise industry outcast? Okay then…

Peter Dillon of Siskinds LLP is an expert in franchise law and a practicing franchise lawyer.

In this month’s  edition of Canadian Lawyer magazine an article entitled Ontario courts side with franchisees, Mr Dillon is quoted as believing:

…franchise law and its judicial interpretation by the courts of Ontario has created probably the most perilous jurisdiction in the world in which to conduct franchises,”

The Wishart Act and its appeal court justices have created the “most perilous jurisdiction in the world“?

Mr. Dillon is reported as having sent out this warning:

He concludes his memorandum by advising his franchisor clients that the courts have clearly demonstrated they are favouring the franchisees, which therefore “creates a high degree of risk and uncertainty that will put some franchisors out of business and will deter many others from commencing to do business through franchising.”

Taking it further, he’s quoted as having:

…spoken to many U.S.-based franchises “that want nothing to do with Ontario. In an era where franchising plays a large part in our retail economic engine, it’s a shame to have mechanics at work that seem bent on lowering the horsepower or spiking the engine altogether.”

These are not the first unsubstantiated claims made in rejection of even the most tepid legal franchisee protection provisions nor will they be the last.

Just simply the next new article I added to the WikidFranchise collection.

Sterns’ warning: Don’t do a half-assed job on disclosure reviews

Ontario’s 35,000 lawyers should consider themselves warned.

This is not just outstanding peer-to-peer legal advice (which it is: both carrot and stick) but it’s also crucial information for all current Canadian franchise investors.

The benefit of collective franchisee action has never been more justified.

David Sterns of Toronto’s Sotos LLP writes in March’s Canadian Lawyer magazine an article called: Advising the purchaser of a franchise business.

Sterns’ bottom-line advice to lawyers? (especially general attorneys):

The harsh reality is that some franchises have a failure rate as high as or even higher than non-franchised businesses. When the franchised business fails, the results are often catastrophic for the franchisee. The legal advice provided by the reviewing lawyer will come under close scrutiny, particularly if the franchisee misses the rescission window because it was unaware of its rights…

Lawyers should allocate sufficient time and charge a sufficient fee to permit a proper document review and reporting to the client. Otherwise, they should decline the retainer.

Lots of implications for the general and franchise Ontario bar.

But, hey, huge importance for the 40,000 ON investors in a current franchise relationships who are organized. Disclosure requirements are not just for the entering but whenever a material change happens to the relationship (ie. during, at renewal: any time a material or “significant” franchisor decision is made).

Did you get proper disclosure documents the last time your franchisor decided to change the rules in the middle of the game?

These are the business risks I assigned and that appear in the WikidFranchise entry:

1. Arthur Wishart Act (Franchise Disclosure), 2000, Canada,
2. Buying an existing outlet even riskier than from scratch,
3. Courts extremely picky about shoddy disclosure practices,
4. Disclosure documents are deficient,
5. Disclosure document: one, bound and delivered at the same time,
6. Disclosure document certificate,
7. Disclosure document must disclose all material facts,
8. Disclosure document must include third party contracts (suppliers),
9. Disclosure documents never given,
10. Disclosure documents not given within proper timeframe,
11. Duty of care,
12. Franchise law being ignored,
13. Independent businesses survive longer than franchised ones,
14. Independent businesses much higher profit than franchised ones,
15. Lawyer alert: advise only prospects with adequate legal due diligence budgets or risk being sued,
16. Lawyers being threatened with lawsuits for speaking out,
17. Material facts were not disclosed,
18. Outstanding advice,
19. Professional negligence,
20. Refuses to take client,
21. Rescission,
22. Sue the lawyer,
23. Unintentional or hidden franchises

This is an important article that I will visit again.

NFC to AUS MPs: Contempt from the McContemptible?

The Franchise Council of Australia, FCA and it’s Chairman John O’Brien (CEO of PoolWerx Corporation, BTW), is right: Dead right.

• The NFC seems to be acting AS IF it were the nation’s pique franchising body.

When I observe the recent interplay between AUS federal politicians and the NFC (see Franchise Council hits back at critics), I get a little teary-eyed.

It just seems like old times.

I am reminded of how the Canadian Franchise Association, CFA, dealt with a provincial politician called Tony Martin, who has since moved onto federal politics.

They treated Mr. Martin with contempt.

Tony and I worked together from 1998 top 2001, trying to get the 1st franchise law for investors in the province of Ontario in Canada. We failed to get a decent one and everything has been frozen since. (see Arthur Wishart Act (Franchise Disclosure), 2000, especially S3 and it’s pathetic, and still undefined and unargued, good faith provisions).

What we did succeed at (and in spades I might add) is leave a very interesting paper trail. The Information Sharing Project has collected all of these tasty little documents. Think of it as a www, digital record of very some very stupid comments.

• Tony become the main irritant to the CFA. As an experienced parliamentarian and the Assistant Speaker of The Legislative Assembly of Ontario, Tony knew the ropes and we used every one of them.

As a example, please note Tony’s April 2000 press release below calling the Government of Ontario to investigate or “probe” the CFA.

Investigate Franchise Association Abuses: Martin
Tony Martin, MPP

April 4, 2000

TORONTO – The Consumer and Commercial Relations Ministry should investigate the Canadian Franchise Association over its failure to help Ontario franchise holders, NDP MPP Tony Martin said today.

The CFA is advising the Conservative government on proposed changes to provincial laws governing franchise agreements. But the association is under fire from hundreds of its own members for its indifference to their complaints, the NDP Critic for Consumer and Commercial Relations said in the Legislature today.

“The CFA has been of no help to many hundreds of entrepreneurs who lost their shirts in shoddy franchise deals,” Martin said. “Instead of taking the CFA’s advice this government should be sending in ministry staff to thoroughly investigate this association’s failures.”

Martin raised the case of Brenda Hope, a mother of two from Coldwater who lost $90,000 as a Chemwise Inc., franchisee. For more than a year, the CFA has refused to look into Hope’s complaints, although it endorsed Chemwise as a member.

Similarly, the CFA has refused to accept a registered letter from Bulk Barn franchisees who have a series of complaints against the franchisor. Martin was also refused when he tried to deliver the letter. The Sault Ste. Marie MPP called on Consumer and Commercial Affairs minister Bob Runciman to act now to protect small businesspeople.

“Perhaps the minister can convince the CFA to live up to its responsibilities to mediate franchise disputes. If he can’t, we need a full-scale probe of this group. It’s the least we can do for hard-working families who lose everything in dubious franchise deals,” Martin said.

The MPP has proposed his own legislation, Bill 35, that is far tougher than the government’s Bill 33. The Martin Franchise Bill would require full-disclosure of franchise contracts, a dispute resolution mechanism, the right to associate and the freedom to source products outside of the chain when not trademark related.

-30-

Information: Gil Hardy at (416) 325-7118 or Robin Cantin at (416) 325-7324
www.ontariondp.on.ca

Franchise law is an ass?

Ontario is where one in three Canadians live. It is the home province of the petroleum, grocery and automobile head offices. There are 500 franchise systems, 40,000 franchised stores and $40-50 billion in annual sales.

The province of Alberta had the first franchise law and Ontario lagged behind with the Arthur Wishart Act (Franchise Disclosure) Act in 2000. Investors think it is not much to write home about. Two other provinces have passed laws since Wishart and they are even weaker.

In March 2000, five expert witnesses were invited to speak to the members of provincial parliament. I was one of them.

My prediction in 2000. Excerpt:

Mr Stewart: What I’m afraid of is that there we’re going to create a law that gives the illusion of a solution so that the salesman at the trade show can say: “Ah, see this law? We can’t do that any more. We can’t be unfair. You have the right.” I’m not sure if the salesman is going to also say, “But you’ll have to have $50,000 to take it to court to prove it yourself.” The onus in Bill 33, in large measure, is on the franchisee to prove damage. The franchisee is in no economic position, in most cases, to do that.

By 2008? The Wishart Act is being ignored by most everyone, the government refuses to look at strengthening and any effective franchisee advocacy has been sold down the river.

As happens sometimes, the law serves those that have the ability to influence it. It doesn’t matter what the objective truth is, the subjective truth (reality based in power) won in Ontario in 2000 and continues to win around the world.

Looking to the law for help is just as rare as finding love in a Whorehouse. Possible but mostly a fairy tale told to create false hope and billable hours.

This illusion allows franchise lawyers to attract “practice clients” (ie. franchisees: broke, one time) while waiting to land their “real” future clients (ie. franchisors: cash, repeat).

If you would like to review my entire testimony, click here for a .pdf (8 pages) or here under the Legislative Assembly of Ontario.