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The State Participations Agency was advised by Gide on the acquisition of shares in Orano from Areva and Caisse des Dépôts et des Consignations by the French State. These share capital acquisitions are part of the conclusion by Areva of a new global settlement agreement with its Finnish client TVO and of a transactional agreement with EDF.
Gide’s team comprised Partners Thomas Courtel, Jean-Gabriel Flandrois, Stéphane Hautbourg and Anne Tolila, Counsel Paul Guillemin and Associate Alexandre Rennesson.
Louis-Marie Pillebout of VGG Associés advised the Caisse des Dépôts et des Consignations. Areva was advised by Barthélémy Courteault Samuel Pariente of Bredin Prat.
Van Hoesel De Blaey and other firms advised French firm Bergamotte, a start-up specialising in the online ordering and delivery of flowers and plants, and its shareholders, on the sale of 100% of its share capital to the English company Bloom & Wild.
The deal cements Bloom & Wild as a key player in Europe with a presence in eight countries and an annual turnover of over €200 million.
The Van Hoesel team was led by partner Peter Jan van Noortwijk, advising on corporate and tax law matters. Bergamotte and its sharehoders were also advised by a team from Gide Loyrette Nouel led by partners Pierre Karpik and Louis Oudot de Dainville. A7Tax also advised Bergamotte and its shareholders on tax law. Latham & Watkins acted as counsel to Bloom & Wild.
GWW, Poland advised the shareholders of Baltic Wave on the sale of 100% of share capital to MA Investment. ACT Legal Poland advised MA Investment on the acquisition.
Baltic Wave is currently investing in a 5-star Baltic Wave hotel in Kolobrzeg, Poland, which will operate under the Crowne Plaza brand. The hotel will ultimately comprise 468 apartments on 14 floors, complete with an infinity edge swimming pool, a luxury spa and wellness area, restaurants and cafes, and a modern conference space capable of accommodating 500 people. It will also operate on a self-service model.
The GWW team included partners Jakub Obiegly and Marek Szymanek. The ACT Legal team comprised managing partner Piotr Smoluch, partner Sebastian Sury and associates Arkadiusz Kocel and Edyta Krzepicka.
Contact GWW lawyers:
Marek Szymanek
Marek.Szymanek@gww.pl
Jakub Obiegły
Jakub.Obiegly@gww.pl
or see more at gww.pl
Stefano Zangrando of Sani Zangrando Avvocati advised Boolean’s sellers on corporate and M&A matters during the transaction. Boolean was also advised by ACTA’s Annalisa Donesana on tax and M&A concerns.
Gatti Pavesi Bianchi Ludovici advised Alpha Test Group with a team comprising Michele Aprile and Paolo Ludovici. Both advised on tax and M&A matters. Alpha Test Group was also advised by Giovanelli e Associati Studio Legale, whose team comprised Matteo Delucchi (advising on corporate and M&A) and Michele Mocarelli (advising on finance).
Can you tell us a little more about your involvement in the deal and what it entailed?
The firm was involved since day one of the negotiation and we had the chance to advise our clients from the very first draft of the letter of intent, which is always the best way as you get the whole picture. Particularly this time around as those were the first in person meetings we have had after a year and a half of video meetings due to lockdowns.
Did any issues arise during the course of the transaction? If so, how did you work to overcome them?
Not properly “issues” (i seldom use the word “deal breaker” and this time there was nothing even resembling one) but there are always hurdles to overcome and the way to do this is to basically continue liaising between sellers and the buyer until a solution is found. Each transaction is different, so each time the advisors have to find tailor-made solutions.
Why is the outcome of this acquisition beneficial to all parties involved?
It is certainly beneficial to everyone: Alpha Test is a leader in the field of education and testing for admission to Universities. Boolean is extremely strong in the digital field and a edu-tech champion in the coding field: its courses are guaranteed to teach students full-stack web development in a matter of few months and more than 95% of its students find a job within six months of the end of their courses. Synergies are simply there to be taken.
Petz, Brazil’s second-largest pet shop chain, has continued its expansion with the acquisition of the entire share capital of Zee Dog for $163.3 million. The deal includes Zee Now Pets Product Trade, Zee Dog LLC, Shenzen Zee Dog Business Co. Ltd, Zee Dog BV and Lolopet Alimentos Naturais SA, subsidiaries of the target company. Petz will pay the agreed amount in two instalments, the first consisting of $117.3 million dollars with 87% paid in shares and the remaining 13% in cash. The remainder will be paid in the next five years. This transaction, which remains subject to regulatory approval, will see Zee Dog shareholders receive a 5.7% stake in Petz.
The parties signed a purchase and sale and merger of shares agreement on 2 August. Novotny Advogados advised Zee Dog and most of its shareholders, with the exception of four investment funds that were advised by Lefosse Advogados. Cescon, Barrieu, Flesch & Barreto Advogados supported Petz in the structuring and negotiation of the transaction.
The Novotny Advogados team comprised senior partners Gabriel Corrêa and Renata Novotny in addition to associates Vanessa Fagundes Cavalcante, Bárbara Gentile, Felipe Linde, Juliana Mansour and Fernanda Quintaniha and lawyers Gabriela Fanciulli and Maria Beatriz Pedrossa.
Can you tell us more about your team’s involvement in this transaction?
Acting as Zee Dog’s lawyers for over four years and having directly participated in the investment rounds prior to the transaction with Petz, our team could actively contribute in negotiating the corporate and tax structures and conditions of the deal with Petz, drafting the relevant legal documents, but also in the internal negotiations between the various shareholders that make up the company’s shareholder base. Our knowledge of the company and its business was also very helpful in the due diligence carried out by Petz on Zee Dog and its assets.
Why was this a good deal for the parties involved?
The acquisition of Zee Dog brings a number of benefits to Petz. In the last years, Zee.Dog has not only become a strong and internationally recognized brand, but also developed a disruptive pet platform, a number of innovative products and solutions for the pet industry and diversified sales channels. On the other hand, the deal brings value to Zee Dog’s shareholders, and allows Zee Dog to benefit from Petz’ more than 140 stores in all regions of Brazil, an Omnichannel benchmark platform and from the expertise of Petz’ team on the execution and operational performance of the business.
How does the deal reflect the current state of the retail market in your jurisdiction?
By allowing a greater number of consumers to have access, through different channels and often, through a simple click on an app, to a wide range of products for their pets, the deal reflects the trend of digitization and innovation of the retail market, which was already booming and was further driven by restrictions imposed by COVID-19.
A consortium consisting of German carmaker Volkswagen AG (66%), English investment fund Attestor Limited (27%) and Dutch Pon Holdings B.V. (7%) submitted a takeover bid to the French listed car-rental company Europcar Mobility Group for €0.50 per share end of July 2021, which was accepted by Europcar. The total takeover price amounts to more than €2.5 billion. The agreed price of €0.50 per share could increase by a further €0.01 per share if the squeeze-out threshold is reached after the offer has been completed. The takeover is currently subject to the approval of the French Stock Market Authority AMF (Autorité des Marchés Financiers) and the relevant antitrust approvals. Once the deal receives the necessary regulatory approvals, it should be completed by the beginning of 2022 at the latest.
The minimum acceptance threshold of 67% is certain to be reached, as the consortium has already received binding commitments to accept the offer from shareholders, such as the investment funds Anchorage, Diameter, King Street Capital and Marathon, who hold a total of 68% of the shares.
Daniel Hayek (managing partner) and Laura Oegerli (associate) at Prager Dreifuss AG advised Attestor on corporate and M&A matters, such as the negotiation of the takeover agreements and the shareholder agreement with the consortium. Attestor was advised on French law corporate and M&A issues by Pierre-Yves Chabert, partner at Cleary Gottlieb Steen & Hamilton in Paris. Volkswagen was advised by Freshfields Bruckhaus Deringer (Rick van Aerssen in Frankfurt and Hervé Pisani in Paris).
Please tell us more about your involvement in this acquisition.
Prager Dreifuss AG advised Attestor on the negotiation of the takeover agreements and the shareholders’ agreement with the consortium and was involved in the overall coordination of the deal.
Further, Prager Dreifuss AG – as a Swiss law firm with an international focus – took on an intermediary role in the cross-cultural discussions among the involved parties from distinct jurisdictions and cultures as well as from different corporate backgrounds, i.e. Volkswagen as a large corporate and Attestor as smaller financially powerful asset manager with particular know-how in re-structuring and other fields.
What expertise did you bring to the deal?
Prager Dreifuss AG has extensive experience in the areas of (public) mergers & acquisition and corporate law, in addition to well-established relationships with leading law firms in these areas in various jurisdictions.
What consequences will this deal have for the automotive industry?
The takeover of Europcar by a consortium led by the strategic partner Volkswagen means transforming Europcar from a classic car-rental company into an innovative mobility platform, opening up doors to more sustainable alternatives to vehicle ownership. New mobility solutions, such as flexible subscription and sharing models, will equip Europcar to face current and future mobility challenges. A main point of focus will also lie on further developing ecologically sustainable vehicles.
Woloszanski & Partners and Ellisons Solicitors – both members of Alliott Global Alliance –advised Web Shield on the sale of its shares in the Web Shield Group to ZignSec AB, a Swedish digital identity solutions firm. Eversheds Sutherland advised the buyer.
ZignSec AB is acquiring 100% of the shares of the UK-based company Web Shield Ltd, including the subsidiaries Web Shield Services GmbH, Web Shield Services Polska sp. z o.o and 50% of Web Shield Legal Library sp. z o.o. and Web Shield Legal Library sp. z o. o. sp. k. for EUR 28 million. The acquisition agreement was signed on 6 June, 2021.
The project was led and coordinated by Woloszanski & Partners Managing Partner Michal Woloszanski, who also coordinated the firms advising Web Shield on English, German and Swedish matters.
An Interview With Michal Woloszanski at Woloszanski & Partners
Please tell us more about your involvement in this transaction.
Web Shield is a successful provider of online compliance tools present all around the world. We have worked with their shareholders before and provided advice on numerous international matters. They knew that we have a specific business-orientated approach to legal advisory and would be able to facilitate and coordinate this transaction internationally.
We quickly recognised the necessity of reaching out to our Alliott Global Alliance network to guarantee support primarily in the UK, as the target company was set up there. In Sweden we decided to work with Magnusson as we have a track record working together on other projects. Germany was covered by local counsel. We coordinated the process and successfully led the entire transaction.
What specialised skills did you bring to the deal?
I would say that our first and foremost skill is legal project management. This is a trait that we are extremely proud of; it is our strongest competitive advantage and that is why we share so many fantastic projects with our clients. As an interesting fact, I can say that we use adapted marketing management software as our primary law firm software. This is how we are able to quickly and effectively plan our tasks. We can create individual processes on the go and see them successfully performed.
Secondly, we collaborate on a regular basis with 50 law firms from around the world, and on top of that we have a great connection with our friends in over 80 countries from the Alliott Global Alliance network. So, when Web Shield’s shareholders insisted that this international transaction was to be closed in only a few weeks, we came back the same day with our recommended team of international lawyers. I find it extremely important to be responsive to the clients’ needs. Business is seldom local now and requires international support. A law firm needs to have the appropriate partnerships in place.
Thirdly, it is the pro-business approach which I think is often neglected by law firms. I hold an Executive MBA from INSEAD and have great understanding of the clients’ business needs. I also empower my team to pursue specialisations which overlap with their personal interests. This way we can approach a deal with a set of skilled lawyers who simply love their work and therefore contribute greatly to the project.
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Did you encounter any difficulties while leading the project?
We knew instantly that this would be a challenging transaction due to the international nature of Web Shield’s activity. The specific nature of their business – merchant onboarding – and their international clients, which are based on all continents, resulted in a complex and timely due diligence process. We assisted Web Shield in delivering prompt answers to the most demanding questions.
Parallel to this was, of course, the business continuity aspect. On the one hand we had Web Shield – a company which had grown over the years from a start-up to an important international player. On the other hand, we had a Swedish stock exchange-listed company which fell under all local FSA requirements. Two different worlds which had to meet without skipping a beat.
How did you overcome these issues?
Just pure teamwork – and I am not talking only about our company. I am actually referring to all involved parties. Our partner law firm, Ellisons Solicitors UK, worked hand in hand with Eversheds UK, who represented the buyer. Our compliance team worked with Web Shield’s operations department to provide Ernst & Young (the buyer’s auditor) with all the documents and answers. Web Shield’s Data Protection Officer collaborated strongly with our GDPR team and Eversheds Sweden to deliver all necessary agreements and declarations. On top of that, all lawyers, CEOs and shareholders of both parties communicated and coordinated – sometimes daily – to close all burning issues.
You see – and I really think that this is the main matter – if the seller wants to sell a company and the buyer wants to buy it, it is essential for the managing lawyers to understand that our job is to help them to reach a consensus, to highlight and solve issues in advance, and not to obstruct.
How did you work to ensure that the outcome of the deal was beneficial for all participants?
I am a strong believer in the win-win negotiation approach. Only when the parties are fully transparent may the overall value of the transaction be fully revealed. It is also our job to create an atmosphere of safety and calmness. This means that we are obliged to ask questions in a constructive manner to ensure full disclosure of all important aspects. These questions can be neither dry nor negative-sounding, especially when they address delicate aspects of the transaction – such as those which may lead to a dealbreaker situation. Hence why framing a question, and explaining the objective, the fears, and the rationale is so crucial. Naturally, I cannot disclose all aspects of this transaction, but I can say that this approach allowed us to finalise in the set time and it seems that it laid the fundaments for years of great business development for the parties.
Do you expect to work on other deals of this kind in the near future?
The short answer is yes, we do expect that. But there is a longer, more interesting answer. Our best work is the kind we cannot brag about. It is the troublesome, delicate situations our clients face and want to be confidential. We have worked for banks, we have worked for satellite designers, we have worked for arms producers. Each of those projects had a common theme – a great product or service which required coordination with IT experts, managers, mechanics and designers, yet also demanded legal advice, which turned into coordination of the entire transaction. This is what we like doing the most, and is the reason why our clients like us so much and stay with us for so many years.
All wealth management and investment advisory firms face regulatory issues at all stages of growth. That is the nature of existing and growing as a regulated entity. That said, it is critical for new firms to assess and fulfill the regulatory requirements right out of the gate.
Two regulatory issues stand out in the beginning: disclosures and advertising. For example, for private fund managers, those initial fund documents must have comprehensive and detailed disclosures so that, prior to the time of investment, the dual audience of investors and regulators can assess and understand material terms, including, for example, fees, expenses and co-investment rights and obligations. Regarding advertising, for instance, it is critical that all new advisers and wealth management firms ensure their advertising efforts conform to the specifics of the applicable advertising and marketing rules, in particular under the Investment Advisers Act of 1940, as amended, and meet the high standards of the fiduciary duty where applicable.
While disclosures in fund documents and client agreements are critical, and all must assume that each advertising piece or marketing pitch will land in the regulators’ laps for review, we at CSS often also receive more general questions from advisory start-ups on operational issues as well as the compliance obligations. The SEC’s Division of Examinations monitors newly registered firms through examinations that assess a multitude of additional critical topics which implicate operational decision-making, including, for example, on custody and the authority of the chief compliance officer. CSS compliance professionals also help emerging firms digest the great work done by our law firm colleagues, including creation of the fund structures, client agreements and other legal documents, and CSS professionals strategically implement the compliance protocols that complement the legal obligations.
All wealth management and investment advisory firms face regulatory issues at all stages of growth.
I list here three “To Dos” to get off on the right foot with all obligations. These may sound basic, but the basics are often forgotten when you are suddenly in the fortunate position of having new clients and exciting opportunities. It can get fast-paced before you know it.
To these new firms: Assess your internal strengths and weaknesses. Many times, start-up firms break away from larger entities or otherwise emerge with a small number of investment professionals, whose strengths may be on the investment side, but not on the operations or compliance side. All parts are critical to the emergence and continued success and stability of the firm. This assessment of internal strengths and weaknesses then lays the groundwork for vendor and software decisions, and the due diligence approach to each. You will need competent vendors that know your business and can provide cost-effective solutions for you now and into the future, and these vendors often should work together on behalf of your emerging entity. Here at CSS, for example, we regularly partner with top tier law firms, AI-enabled solution providers, and other material vendors with international reach to optimize knowledge, operations, and technology.
Do not forget to be practical. Develop the goals and definitely keep the dreams, but also be practical. Think about what you can develop and maintain in the next six months, in the next year, and in the next five years, because promising too much to clients or developing too far ahead of the risk controls or conflicts of interest disclosures can get you into territory that is too risky – then you are relying on luck instead of your expertise and sound judgment. You do not want to be relying on luck when you are managing third party money, when you have a fiduciary duty, and when you are in a regulated industry. So, stay practical, and this means developing and documenting your risk controls at least alongside your business ventures – preferably in advance, but at least alongside – and certainly not after the fact.
Stay current. We are in an everchanging world, what with COVID-19, cybersecurity concerns, the emergence of new asset classes (cryptocurrencies), and global integration in general. While the fiduciary duty is a long-recognised responsibility, regulators always apply it to current realities — indeed, that is part of their job. So, for example, today, we are focused on ESG metrics, and we have the pandemic’s impacts on valuations. Hackers are consistently finding new ways to breach cybersecurity advances, and now we also have cryptocurrency as ransomware as well as for client portfolios. So, part of the firm needs to be agile enough to consider, or bring to the appropriate committee, consideration of current realities, so that the firm can develop written policies and procedures that reflect thoughtful risk parameters and evidence fulfillment of the fiduciary duty.
You do not want to be relying on luck when you are managing third party money, when you have a fiduciary duty, and when you are in a regulated industry.
What these three “To Dos” require is healthy coordination internally and with your significant vendors. Behind healthy coordination are honest self-assessments and transparent internal conversations – working together, not undermining one another or focusing blame. Utilise your team in a way that supports growth while maintaining stability. If there is this healthy coordination and communication, then I believe that this helps ensure that clients and investors are receiving timely and comprehensive disclosure – a perennial concern for regulators.
I touched on some above: cybersecurity threats, ESG, and considerations around a firm’s use of or investment in blockchain technology and digital assets. Firms also should consider use of leverage, credit facilities, and similar products for accounts or for its own growth.
Additionally, under the Advisers Act, the industry is preparing to meet the 4 November 2022 compliance date for the amended Marketing Rule. Also, high on the gravity scale, many financial institutions must or should incorporate more robust anti-money laundering controls and adhere to mandates and advisories published by the Financial Crimes Enforcement Network.
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Overall and in summary, find a mixture of human and technological solutions that can both meet your current demands and expand with your growth, whether that growth may be, for example, geographic expansion, new products, or an acceleration of assets under management.
Eugenie L Warner
Compliance Solutions Strategies (CSS)
Address: 777 Third Avenue, 10th Floor, New York, NY, 10017
Telephone: +1 212-576-1170
Email: info@cssregtech.com
Eugenie L Warner
I am a lawyer and working as a Senior Consultant with Compliance Solutions Strategies (“CSS”). CSS is a global company providing innovative, technology-driven solutions and compliance services that allow financial firms to meet regulatory compliance requirements while optimising data, operations, and technology. I have been working with CSS for about ten years; prior to CSS, I was a business litigator. At CSS, I work with numerous registered investment advisers to strategise for and implement compliance programs, and I am a Chief Compliance Officer at a private equity firm.
Businesses in a range of industries have faced class actions involving allegations of worker misclassification in recent years. Examples include: Montaque v. Handa Travel Student Trip Ltd.[1] (“Trip Leaders” on guided tours for students), Rallis v. Approval Team Inc.[2](non-managerial salespersons and sales managers), Phillip v. Deloitte[3] (document reviewers), Omarali v. Just Energy[4] (door-to-door sales representatives), and Heller v. Uber Technologies (Uber drivers).
While the test to determine a worker’s status may vary slightly across forums and jurisdictions in Canada, adjudicators will review factors relating to the degree of control over the performance of the work and the independence of the worker. Unlike employees, independent contractors are in business for themselves and can negotiate terms to maintain significant discretion over the performance of their services and whether they subcontract or delegate work to others. Independent contractors do not typically have the same duties of loyalty as employees, they are rarely restricted from performing work for competitive businesses, and they are not required to devote working hours and attention to the business in the same manner as employees.
Whether it is desirable for a company to retain independent contractors will depend on each business.
In general, employees are entitled to statutory benefits and protections under minimum employment standards legislation, such as minimum wage, overtime pay, job-protected leaves of absence, notice of termination, and severance pay. Employers are obligated to make statutory deductions from wages and to remit them to the applicable government authority. Minimum employment standards legislation does not apply to the relationship between a business and an independent contractor, nor is a business typically responsible for making statutory remittances associated with the fees for the services it pays to an independent contractor. For these reasons, the relationship with an independent contractor may be more cost-effective and simpler to administer.
The tests to determine a worker’s status may vary slightly across forums and jurisdictions in Canada.
In many cases, workers may prefer to be independent contractors, because it confers on them certain independence in how they perform their work. It may also provide tax benefits.
Similar to other litigation, the typical process begins with a review of the originating process to analyse the procedural and substantive aspects of the case. No class action is the same; there is no single particular route to a successful defence. However, there are common approaches to consider, such as filing preliminary motions to dispose of the matter (for example, if the contract mandates arbitration), contesting certification, and negotiating a consent certification to narrow liability.
In Ontario, the Class Proceedings Act (“the Ontario CPA”), requires that five criteria be met for a class action to be certified: (a) the pleadings disclose an identifiable cause of action; (b) there is an identifiable class of two or more persons; (c) the class members raise common issues; (d) a class action is the preferable procedure; and (e) an adequate representative plaintiff.[6] A matter may be disposed of prior to certification through a preliminary motion, such as a motion to strike, or a defendant may contest certification at the certification motion for its failure to meet these requirements. The requirements for certification are similar in the other common law Canadian jurisdictions, although each province has its own statute.
Recent legislative changes to Ontario CPA have inserted more robust sub-requirements of superiority and predominance into the preferable procedure criteria. These requirements are similar to those of Rule 23(b)(3) under the United States Federal Rules of Civil Procedure.[7] “Superiority” requires that a class action must be superior to all reasonably available means of resolution. “Predominance” dictates that the questions of fact or law common to the class must predominate over any individual issues. Under this new legislation, the plaintiff bears the burden of satisfying the additional requirements of preferability; previously, the defendant relying on an alternative procedure bore the burden of proving preferability against a high bar.[8] Thus, the Ontario CPA may pave the road for more successful challenges to certification.
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Where a class action has been certified, the case then proceeds to determination of the merits, which can be contested at trial or summary judgment. The case can also be settled through settlement discussions and mediations, and any settlement requires court approval to demonstrate that the settlement is in the best interests of the class. Occasionally, the case can disposed of by way of a decertification motion.[9]
The defence strategy of misclassification class actions has changed over time, as the jurisprudence concerning whether a class action raises common issues has evolved. When employee misclassification class actions were first commenced in Canada, variations in job authority, control, responsibility, and independence within the putative class could be raised as a successful defence strategy at certification.[10] Decisions to deny certification were upheld by appellate courts in both Brown v. CIBC and McCracken v. CNR on the basis that extensive job variation within the putative class indicated a lack of commonality. The courts concluded that the need for individual analyses ran contrary to the goals of judicial economy and access to justice legislated by the CPA.[11] However, in 2016 in Rosen v. BMO, the court approved certification by distinguishing the case from McCracken and Brown on the basis that the job functions were sufficiently similar – ensuring overtime pay eligibility could be decided on a class-wide basis.[12]
Following Rosen, there has been a significant increase in certified employee misclassification class actions.[13] How courts distinguish recent cases from the decisions in Brown and McCracken often entails a quantitative analysis of job variation. For example, in Montaque v. Handa Travel Student Trip, the court found commonality where the class included three substantially similar positions in comparison to the 52 positions at issue in Brown.[14] Overall, courts appear to be more amenable to job variation if it “exists at the margins of the working relationship and not at its core”.[15] However, opportunities for successful defence strategies can be found where the class members do not share a “substantial common ingredient”[16] given their work variation, or when allowing the matter to proceed as a class action would not avoid duplication of fact-finding or legal analysis.[17]
Within the past five years, several legislative changes came into effect regarding employee classification. For example, both the Federal and Ontario governments passed legislation to prohibit classifying workers in a way that avoids minimum statutory obligations.[18]
When looking to the future, we see the potential for change in the definition of “employee” in minimum employment standards legislation. Calls for an expansion of the definition to include dependent contractors, and related concerns regarding the potential unintended consequences of such a change, have been raised in recent years.[19] Any change to the definition of “employee” in minimum employment standards legislation may impact employee misclassification class actions.
Eric S Block, Partner
Justine Lindner, Associate
Address: 66 Wellington Street West, Suite 5300, TD Bank Tower Box 48, Toronto ON M5K 1E6, Canada
Telephone: +1 416-362-1812
Fax: +1 416-868-0673
Email: eblock@mccarthy.ca, jlindner@mccarthy.ca
Eric S. Block is a partner in McCarthy Tétrault's Litigation Group in Toronto and is lead counsel on many alleged worker misclassification class actions.
Justine Lindner is an associate in McCarthy Tétrault's Labour & Employment Group in Toronto who has worked on a number of employment class actions.
McCarthy Tétrault is a leading Canadian law firm that advises on complex and significant matters for Canadian and international interests with a focus on delivering integrated business law, labour & employment law, tax law, property law and litigation services. The 2018 Acritas Survey ranked the firm as the second-strongest law firm brand in Canada.
[5] Uber Technologies at 22 & 23. The SCC also referenced the test in Montreal v. Montreal Locomotive Works Ltd. 1946 CanLII 353 (UK JCPC), [1947] 1 DLR 161; Internal Revenue Service “Independent Contractor (Self-Employed) or Employee?” (2 July 2021), Online: IRS.
[6] Class Proceedings Act, 1992, SO 1992, c 6, at s. 5 (1) as amended by Smarter and Stronger Justice Act, 2020, SO 2020, c 11, Schedule 4, s 7.
[7] Federal Rules of Civil Procedure, 28 USC § 29 (2020).
[8] AIC Ltd v Fisher, 2013 SCC 69.
[9] Class Proceedings Act, RSO 1992, c.6, as amended, s 10. The bulk of claims certified are ultimately settled (Louis Sokolov, “Employment Class Action Update” Employment Law Manual: Wrongful Dismissal, Human Rights and Employment Standards” (2017) Thomson Reuters at 169.
[10] Brown v CIBC, 2012 ONSC 2377.
[11] Brown v CIBC 2013 ONSC 1284 at 23-25; McCracken v CNR, 2010 ONSC 4520; 2012 ONCA 445.
[12] 2013 ONSC 2144 at 23-25.
[13] Omarali v Just Energy, 2016 ONSC 4084; Morris v Solar Brokers, 2019 ONSC 6817; Phillip v Deloitte, 2019 ONSC 7300 (formerly Sondhi v. Deloitte Management Services LP, 2018 ONSC 271); Walmsley v 2016169 Ontario Inc., 2020 ONSC 1416; Rallis v Approval Team Inc., 2020 ONSC 4197; Trevor Hopman v. Starbucks Coffee Canada Inc; Montaque v Handa Travel Student Trip Ltd., 2020 ONSC 6459; Berg v Canadian Hockey League, 2020 ONSC 6389; Cervantes v. Pizza Nova Take Out Ltd.; Brown v Procom Consultants Group Ltd., 2021 ONSC 4185; Heller v Uber Technologies, 2021 ONSC 5518.
[14] 2012 ONSC 2377 at 20.
[15] Navaratnarajah v FSB Group, 2021 ONSC 5418 at 18; Morris v Solar Brokers, 2019 ONSC 6817;
[16] Vivendi Canada Inc v Dell Aniello, 2014 1 SCR 3 at 41.
[17] Western Canadian Shopping Centres v Dutton, 2001 SCCC 46 at 39; Heller v Uber Technologies, 2021 ONSC 5518 at 36.
[18] Canada Labour Code, RSC 1985 c L-2, s 167.1-167.2; ESA s 5.1.
[19] Fay Faraday, “Demanding a Fair Share: Protecting Workers’ Rights in the On-Demand Service Economy” Canadian Centre for Policy Alternatives, July 2017; Government of Canada, “Federal labour standards protections for workers in non-standard work: Issue paper” Employment and Social Development Canada, January 2019; and Colin Busby and Ramya Muthukumaran, “Precarious Positions: Policy Options to Mitigate Risks in Non-standard Employment”, C.D. Howe Institute, Commentary No. 462.
Although the concept of shared real property interests can be traced back to medieval Germany, and perhaps even to ancient Rome, statutory authority for sharing real property ownership did not exist in the United States until the 1800s, and it was not until the early 1960s that the first condominium statutes were passed. In California, the California Condominium Act was adopted in 1963 and later was renamed the Davis-Stirling Common Interest Development Act.
Although there are other types of common interest developments (such as stock cooperatives, planned developments and community apartments), condominiums differ from the others in that the separate interest portion of a condominium can be in a building, a portion of a building, in the underlying land, or the airspace above, or any separately described three-dimensional parcel containing either air, earth, water, a building, or any combination of the foregoing. It is essential that the title to a portion of the property be held by the holders of separate interests as tenants-in-common. Unlike other common interest developments, the creation of a condominium requires both a recorded parcel map or subdivision map and a recorded condominium plan. These two documents may be combined into a single document, or the condominium plan can be a standalone document, separate from the recorded subdivision or parcel map.
In planning for the development of any multi-family residential project, it is important to determine whether the project is intended to be forever a rental project, a for-sale condominium project from the beginning, or, as has become the “norm” recently in many jurisdictions, it is to be created as a condominium project with the intent of renting the units for the foreseeable future, but retaining the option to be able to sell them at any time in the future. When first planning the development of a condominium project, it is important to review the local city or county ordinances to see if the conversion of a rental project into a for-sale project is regulated. Many cities have adopted condominium conversion ordinances which make it extremely difficult for a rental apartment project that was not initially approved as a condominium to be converted into a for-sale condominium project.
It was not until the early 1960s that the first condominium statutes were passed.
Every state has some sort of statutory provisions governing the creation and the offering for sale of condominiums. So does every city or county. In some cases, zoning ordinances may preclude the creation of condominiums within certain designated zones. Federal agencies such as FannieMae, FreddieMac and FHA have regulations which impose standards that must be met by any condominium project in which the unit owners are seeking governmental assisted loans.
In addition to the map and the condominium plan, a Declaration of CC&Rs (sometimes referred to as a Condominium Enabling Declaration) is required. State laws require such Declarations to be in a certain form and to include certain provisions. Such laws regulate and restrict provisions to be included in such Declarations. All states have laws regulating the offering of condominiums for sale to the public by the original developer of the condominiums, or by anyone who owns and is offering more than a certain number of condominiums for sale at any point in time.
In those jurisdictions where the creation and the sale of condominiums is heavily regulated, a team effort is required to successfully develop a project. The key members of the team will be the surveyor or engineer who will be creating the map and the condominium plan; the land use lawyer who will be assisting in obtaining the entitlements for the local jurisdiction and from the state regulatory agency; and the title company or independent professional who will be acting as the liaison between the developer and the state regulatory agency responsible for reviewing the project documentation and, eventually, approving the project for sale to the public.
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In the case of condominiums being offered for sale interstate, the developer must be aware of and comply with the Interstate Land Sales Full Disclosure Act.
John Hanna, Partner
Address: 525 University Avenue, Suite 600, Palo Alto, California 94301
Telephone: 650-321-5700
Fax: 650-321-5639
Email: jhanna@hanvan.com
Website: hanvan.com
John Hanna is one of the leading land use lawyers in California. He has represented clients and obtained entitlements for over 3,000 projects. He has also been selected in Best Lawyers, Who’s Who in America, San Francisco’s Best Lawyers, and Silicon Valley’s Best Lawyers.
Hanna & Van Atta is one of the most experienced law firms in California in real estate matters, and the premier law firm in matters pertaining to common interest development in the State of California. The firm is located in Palo Alto and represents commercial and residential developers, land users, and the commercial real estate and home building industries throughout California. Hanna & Van Atta’s three partners offer over 100 years of combined experience as lawyers who have specialised in all aspects of legal representation in the fields of real estate law.
