Jackie Dinsmore presents a general overview and understanding of general legal contract issues for independent schools.

1. OFIS
A Legal Primer for Independent Schools in
Ontario
Presented by:
Jacqueline Dinsmore
Cognition LLP

2. Some Background

3. The “Fine Print”
The information provided in this presentation represents a
general overview and understanding of general legal
contract issues. It is not intended to be used as legal
advice. Any application of the contents of this seminar in
the context of a specific business should entail further legal
consultation and consideration.

4. Contract Issues – A Primer

5. Contracts – The Form
 Agreements can be written, oral or implied by statute or
by the conduct of the parties
 Written is best, as it can most easily be proven
 Do not start anything in a relationship until the contract
is signed (e.g. don’t let them start school!)
 Do not overpromise and don’t commit to things you
cannot or may not be able to meet (e.g. your student will
be in the top 10%)

6. Contracts- The Content
 Know the terms of your contract- if you can’t
explain the terms of your contract in entirety, then
you are not in a position to understand the
business arrangement either
 The contract IS business PLUS legal issues
working together
 Don’t ignore “boilerplate” language (at beginning
or end)

7. Contracts – The Basics
 Parties intended to be bound, had legal capacity,
consideration was given
 Consideration- the party seeking to enforce a
contract must have given something of value to the
other (e.g. payment of $$, a promise, changing one’s
position in reliance on a promise)
 Must be fresh (not a past act or promise)

8. Contracts- The Content
 Who are the parties? Does your contract have a full corporate name
(e.g. Ltd. Inc. Limited). Witness for individuals.
 Term and Termination. Are these clearly defined? When will the
contract start- when will it end? What period does it cover? Have
you fixed the term but then provided for notice of termination?
 Pricing. Are these detailed and accurate? Are they included in
schedules or in the main body? Does it contemplate price increases
and the mechanism for such?
 Refunds. Is the refund policy clearly described?
 Service Levels- what is the paying party receiving for their payment?
Is there an expectation by the parents of a particular level of
service? Are there expectations of the parents from the school?

9. Contracts- The Content
 Representations and Warranties (try to receive reps and
warranties from parents for important conditions, such as health
issues, behaviour problems, etc.)
 Informed assumptions of risk (do parents know what risk they
are assuming by sending their child?)
 Limitations of liability (Limit the school’s liability if
something goes wrong- won’t apply in cases of
negligence)
 Indemnities (Protect the school from third party lawsuits
as a result of behaviour from a parent or child)

10. In determining risk….. look at everyone around you!
YOU
3rd Parties
Service
Providers
Consultants
Parents
Partners
Staff
Government

11. Prepare for the worst case scenario

12. Contract issues- Non-performance justification
 Mistake- no consensus as to nature of the agreement
(e.g. don’t tell the other side about this….)
 Unfairness- parties did not have equal bargaining
power (e.g. one party taken advantage of)
 Public Policy – contract contemplated the
performance of an illegal or criminal act
 Non-performance by the other party (breach of
contract)

13. Contracts- Your Remedies for Breach
 Specific performance- they MUST do what they said
they would do
 Monetary damages (as good a position as if the
contract had been performed)
 Has either party limited their liability with a cap or
under certain circumstances?

14. Contract Issues – The Review
 Ensure your standard agreement is reviewed by legal
counsel. But your legal counsel won’t know the business
arrangement necessarily- so advise them!
 Any deviations from this standard agreement should also
be reviewed
 Do not ignore the schedules and ensure that they are
completed and accurate before signature

15. A little fun…..
The Contest

16. IP Protection
Trademarks
 Trademarks: words, logos or symbols that identify your products or services and distinguish
them from those of others.
 Should be distinctive and not descriptive or it may be objected to
 Must be in use to maintain registration
 Search www.uspto.gov and www.ic.gc.ca (as well as NUANS and google search)
 You develop trademark rights just from usage in advertising and selling the related product
or service
 Mark any usage with a TM
 Registration is not necessary, but gives you rights across the country, can give indefinite
ownership, allows enforcement over social media channels (e.g. Twitter) and provides
clearer ownership ®
 Ensure that you develop and enforce trademark usage guidelines
 Registration - $1500 - $2500 plus more for international

17. IP Protection
Copyright
 Copyright is a form of protection allowing the owner of the rights in a work to prevent others
from copying, displaying or performing the work.
 The work must be original.
 Absent a contractual arrangement, the author owns the copyright (an employer is deemed
the author of any work created by an employee)
 Registration is not necessary, but can be helpful.
 Use of copyright notice not necessary but helpful: (C) [Year of first publication] [Owner]
 Copyright doesn't protect the idea, but the expression of the idea.
 Any music and images used for promotional purposes is likely subject to copyright and
must be licensed.
 Century 21 Canada Limited Partnership v. Rogers Communications Inc. – Zoocasa found
liable for scraping content from Century 21 website and reproducing it

18. Privacy

19. Privacy/Permissions
 Personal Identifiable Information
 Any information that can be linked and identify, either by itself, or with some
other data elements, an individual. For example, IP addresses.
 Privacy law regulates the collection, use and disclosure of personal
identifiable information (e.g. name, telephone number, credit card, etc.)
 Watch out for Health or Employee Information. More restrictions apply.

20. Privacy
 Obtain explicit consent for the collection, use, and disclosure of personal
information. Some ancillary use may be permitted, but that is all fact based and
do not rely on implicit consent, but always try to obtain explicit consent
 Collect only what is necessary
 Disclose purpose of collection to user and get their consent
 Ensure that the personal information is not disclosed to anyone unless you have
received the proper consent from the person
 Make sure that you have proper consent from parents and/or guardians for the
dependents.
 Be aware of the age laws, e.g., medical treatment rights, ownership of personal
information, who can give consent for disclosure and for what at certain ages.
 Impose privacy policies and procedures, including appointing a responsible
person
 Allow individuals to request their information be deleted or modified
 If sending personal information to be stored or processed in US or other
jurisdictions such as China etc. disclose that and obtain consent

21. Advertising/Marketing Considerations

22. General Advertising Principles
 Any time a claim is made in an ad that
might “reasonably be taken as true”
must be substantiated

23. Examples
 “Our school has a class ratio of 10 students for every
teacher”
 “We were ranked #1 in Grade 3 mathematics in
Halton County”
 “90% of parents would prefer to send their children
to private school, if they could afford it.”
 “Our teachers are the best teachers in the GTA’
 “99% of Pinewood students are accepted into
University”

24. Puffery
 An exception to the requirement to substantiate is
when the claim is so outlandish that a consumer
would not reasonably rely upon the claim or believe
it to be true
 The test- “Would a reasonable person rely upon the
representation?’
 Example: “We are the best school in the entire
universe.”
 Example: “Our teaching works wonders”

25. Advertiser’s Opinion
 A claim that consists solely of an advertisers opinion
also does not require substantiation
 If a company says its products are “good”, the
consumer knows that he or she is relying only on the
company’s opinion of its products.
 However, don’t disguise a fact as an opinion.
Example: “We think our vacuum cleaner is twice as
powerful as the competition’s.”

26. Tactics to Deal with Unsubstantiated Claims
 The Weasel Claim- “Our detergent leaves dishes
virtually spotless”
 The Unfinished Claim- “ABC gives you more”
 The We’re Unique Claim- “If it doesn’t say Downy, it
can’t be Downy”
 The Water is Wet Claim- “Our mascara greatly
increases the diameter of every lash”
 The So What Claim- “Our soup has not one, but two
beef stocks”

27. Comparative Advertising
 4 out of 5 customers prefer Pepsi to Coca Cola
Be Careful!
- Get legal input before making comparisons
- There may be special trademark rules if you use a
competitors name
- Don’t rely on stale data
- Don’t underestimate the potential damage of a
comparative claim gone bad!

28. A little fun….
The Exercise!

29. Who Are We?
 Bay street senior counsel (average 15 years of experience)
(Blakes, Torys, Stikemans etc.)
 Former In House lawyers (e.g. Canadian Tire, RIM, Nortel,
Sun Microsystems, CBC, Pepsico, Hewlett Packard,
Deloitte etc.)
 1/3 to ½ the cost of traditional counsel due to the way we
have stripped overhead
 32 lawyers -located in Toronto, Ottawa & Calgary
 Servicing over 400 companies, institutions and
organizations
 An outside firm that behaves like in-house counsel
 Available on a flexible/customizable basis

30. THE KIND OF LAWYERS
COGNITION ATTRACTS
Lawyers Trained on Bay Street at:

31. Some of Our Clients

32. Need Help? Please give us a shout!
 Jacqueline Dinsmore
 416-348-0313 ext. 107
 416-882-1977 (cell)
 jdinsmore@cognitionllp.com
 www.cognitionllp.com