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

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

  1. Frank Tilban says:

    This is great stuff Les. What do you mean by a non-”franchise bar” attorney.

    Like

  2. Les Stewart says:

    Frank,

    The quickest way to explain is referencing the medical profession. There are general practitioners or family doctors that run a diversified practice and then there are specialists (like, say a cardiologist) and then hyper-specialists like cardio-vascular surgeons. Because of the complexity and depth of knowledge needed, there are even hyper-, hyper-specialist that are world-known for doing just the most difficult procedures.

    Gaining and retaining professional standing and credibility takes not only the best education, “mentoring”, and decades of practice but a high volume of specialty cases that are considered “tough” by your peers. It may seem like a holiday or BS but being active and a leader in presenting papers at medical conferences, continuing education, professional development, publishing in academic journals, holding cross-appointments at universities, etc. are the hallmarks of a pre-eminent practitioner in medicine.

    When I go under the knife, I look for the surgeon with the highest standing in all of these areas. His personality, bedside manner are irrelevant to me: I’m happy to have him treat me like a piece of meat because I hope never to darken his door again in my life. After working in hospitals for 5 years in the London, ON area, it seems the nastiest people make the best cutter. They devoted their time to expertise not hand-holding.

    In law, it’s the same. There are 32,000 ON lawyers that can do almost any legal work but they are often don’t do enough of any one area to be recognized as “specialists” in any real sense. Doing real estate deals is an immediate disqualification for doing any franchisee work, in my opinion. Nice guys but let someone else pay them to learn.

    As a matter of fact, just this summer the Canadian Bar Association has just officially recognized that franchising as a specialty field of commercial law. I went to the Ontario Bar Association’s 10th Annual Franchise Law Conference in Nov in Toronto. There were 96 attorneys that took the day to hear the best-and-brightest of them explain what’s new. (Hint: 96 of 32,000 or less than 0.33% do enough franchsie work, care enough, etc. to devote a day for professional development/networking,)

    The Canadian Franchise Association is the one that draws a distinction between a franchise specialist and a generalist lawyer. They recommend you use only a franchise specialist (presale, renewal, exit, bumps along the way) and I agree. My 12 years shows me that probably less than 1% of all serious abuse never gets resolved because (not of money, per se) but lack of independent business advice as to which lawyer to trust.

    If you’re preparing for formal dispute resolution, you want the best, brightest and the most respected to first analyze the situation and then present alternatives.

    Perfect case: deal directly with a litigator backed up by an independent franchisee association. Qualifying this individual, working with them efficiently and then keeping the surveillance on after is the key. Don’t build a warchest for a savior lawyer to come in, scoop the cash and leave the group in shambles. Deal with someone who views a powerful group of franchisees as an “apple orchard” rather than some “professional” that’s into clear-cutting your current account.

    The law changes. It’s meant to change and build on what has gone on. For example the current Chief Justice of Ontario (head honcho of judges) is a former labour lawyer. He knows the vulnerabilities and his perspective on franchise disputes are revolutionizing not only ON but all of Canada and will play a key role in the current state/national franchise law debate in Australia.

    These are commercial matters that involve justice. Unfortunately in this life you have to pay to protect what you think is rightfully yours from those that want to steal it. Don’t only blame the fox in the hen house: defend yourself and your family’s life savings (since everything is all webbed together so tightly as a mom-and-pop franchise).

    I have been sued twice in my life and the process is fascinating. I think I’m a much better businessperson and I have been passing these lessons onto my children for the last 19 years. I was alone when I was sued into bankruptcy, before Wishart was around. I learned a lot in getting Wishart started in 2000, am encouraged by the Justices’ recent decisions and look forward to presenting the next levels of arguments that would protect franchisees now and in the next decade.

    Nobody can do that without a top-notch legal general who learned justice from his franchise father. Not surprisingly considering how common the abuse, one has come to my attention.

    Three questions:
    1. Do you trust yourself enough to trust a professional enough to protect your family?
    2. If you can’t trust yourself now, can you ask your spouse to help you decide?
    3. If you can’t even do that now, When will you ever be able to do that?

    My experience is $ come and $ go. My self-respect is more important to me, my kids and my spouse and friends than any sleazeball bullshit artist.

    If I’m going over a cliff, I’m taking two handfuls of franchisor with me.

    Les

    PS: Good question.

    Like

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