Annual Legal Update
2012 has seen a great deal of judicial activity that impacts the way franchises are granted and operated, and provides critical guidance to franchise lawyers on both sides of the issues.  This session will include a discussion of the most important decisions and legislative developments of the past year and how they affect the day-to-day interaction between franchisors, franchisees and their counsel.
Jennifer Dolman, Osler Hoskin & Harcourt LLP
Jeffrey Hoffman, Gowling Lafleur Henderson LLP

Markus Cohen Q.C. Memorial Award

Plenary 1-  Lessons Learned: The Most Common Mistakes Made by Franchise Counsel in the Disclosure Process and How to Avoid Them
Solicitor negligence claims relating to franchise disclosure documents have been increasing in recent years. In many cases, these claims are as a result of avoidable mistakes. This workshop panel will discuss practical tips to avoid common errors made by lawyers when preparing franchise disclosure documents and advising clients on disclosure issues.  It will also offer best practices to help deal with challenging situations such as the “runaway client”, the “stubborn client”, the importance of determining who within your client’s organization has authority to give instructions on difficult issues and when independent legal advice may be needed.
Andraya Frith, Osler Hoskin & Harcourt LLP
Darrell Jarvis, Fasken Martineau DuMoulin LLP
Rosanne Manson, LawPRO

Workshops 1 (choose one) - all workshops will be webcast)

(A) Relationship Summit
In this not-to-be-missed session, our senior in-house panel will provide valuable insights into what does (and what doesn't) work when fostering and maintaining the franchise relationship. Based on hands-on experience, this session will explore the key facets and stages of the relationship and its management, including:

•  managing expectations through the disclosure process and beyond
•  how to identify and deal with early warning signs of trouble
•  the meaning and impact of the duty of fair dealing in day-to-day matters
•  when, how and what tools you need to avoid, embrace and manage conflict
•  understanding and managing relationship stress points and exacerbators of conflict
•  the role of advisory councils, franchisee associations and ombudspersons, and
•  the practical scope of the right to associate, including the use of system email and resources to advance or  address franchisee issues or grievances

The panel will also explore what franchise counsel can do to help at each stage of the process.
Moderator: Jonathan Lisus, Lax O’Sullivan Scott Lisus LLP
Liisa Kaarid, Loblaw Companies Limited - Brampton
Clark Harrop, Tim Horton’s Inc. - Oakville

(B) In the Best Interest of the Brand
What’s good for the franchisor in order to protect the brand and its interests is often good for the franchisee. Clear, unambiguous drafting in franchise agreements with respect to brand use, protection and promotion will serve to define what each party to the agreement can and cannot do with respect to the brand, and hopefully help to reduce confusion and tension between franchisors and franchisees that can lead to disputes.  This session will focus on issues relating to advertising and discounting, social media, franchisor control and rebranding, local goodwill, as well as trade-mark use and licensing that can impact the franchisor-franchisee relationship
Lorraine Fleck, Hoffer Adler LLP
David Shaw, Blake, Cassels & Graydon LLP

(C) The Effective Use of Advisory Councils
As franchise systems grow in size and organizational structure, there can develop a widening disconnect between the senior management of the franchisor and its franchisees.  A well-run franchise advisory council (or FAC) can narrow that divide by providing a dynamic forum for open, honest communication.  FACs can be instrumental in obtaining franchisee feedback, support, adoption and implementation of system policies, standards and changes, and are therefore essential to the success of the franchisor-franchisee relationship.  This session will help franchise counsel and their clients understand and make the most of the FAC by examining what it is, what it does, how it should be structured and how it can most effectively be managed.
David Kornhauser, Macdonald Sager Manis LLP
Debi Sutin, Gowling Lafleur Henderson LLP - Hamilton

Roundtables 1 (with box lunch)
(1 Roundtable Topic will be webcast.  Details to follow.)

Roundtables 2

Workshops 2 (choose one) - all workshops will be webcast

(B) see above

(D) Creative and Efficient Use of ADR in Franchising
Alternative dispute resolution is a familiar aspect of the litigation of disputes in Ontario, and mediation and arbitration, if employed creatively and efficiently, can be essential tools for franchisors and franchisees in managing the franchise relationship.  In this session, the panel will review the essential principles of mediation, and re-evaluate its utility in resolving franchise disputes. In doing so, the panel will discuss the suitability of the dispute, the parties to such a dispute, the timing of mediation, selection of a mediator, and the type of mediation most suited to the variety of franchise disputes which may arise.  The panel will also review the clear advantages of arbitration over conventional litigation in the franchise relationship context (including the ability to select an appropriate arbitrator, ensuring confidentiality and designing a nimble, cost-effective arbitral process) and how these advantages must be secured when drafting an effective arbitration clause.  As part of this discussion, different forms of arbitration will be canvassed, including baseball, night baseball, final-offer and high-low arbitrations.  Finally, the panel will discuss the choice between arbitration and litigation for franchise- or industry-wide disputes, including whether these disputes can be arbitrated or whether they should always go to litigation, and whether arbitration be tailored to deal with disputes which involve more than one franchisee.
Leslie Dizgun, Himelfarb Proszanski LLP
Thomas G. Heintzman,OC, QC, Heintzman ADR
Randy Pepper, ADR Chambers

(E) Renewing Your Vows or Remarrying Beyond Country Style:  Other things to
Consider on Franchise Transfers and Renewals
In most franchise relationships, there comes a time when the parties are faced with the decision whether to renew or continue their arrangement; in other instances, a change is desired by one or both parties, and a new relationship partner is sought out and introduced.  Because of their fundamental impact on the franchise relationship, renewal and resale transactions often generate both confusion and potential risk to both parties. To help clear up the confusion and mitigate the risk, this workshop will canvass the underlying legal aspects of such transactions – including the common contractual conditions relating to renewal and resale, as well as statutory considerations, such as the application of the duty of good faith, disclosure obligations and exemptions – and will investigate the commercial and practical implications of the relevant law by examining such matters as a franchisor’s right to enforce contractual conditions, common strengths and weaknesses of policies and practices relating to transfer and renewal processes, and the manner and scope of the requisite franchise disclosure.
Ned Levitt, Aird & Berlis LLP
Frank Robinson, Cassels Brock & Blackwell LLP

Workshops 3 (choose one) - all workshops will be webcast

(A) see above

(D) see above

(F) The Elusive “Clean Break”:  Termination and Post-Termination Rights and Obligations                       
As the saying goes, "all good things must come to an end" – however, managing that process from a legal and practical perspective, in a relationship as intertwined and interdependent as that between the franchisor and its franchisee, requires an uncommonly high level of diligence, communication and discipline.  In this session, the panelists will examine the rights and remedies typically contained in a well-drafted franchise agreement – including termination events and post-termination covenants – as well as the legal and practical considerations and obstacles that the parties may face in their enforcement.  Strategic issues regarding progressive discipline and notice, cure periods, fair dealing, possible alternatives to termination, and the impact of the event and how it is managed on other franchisees, will also be considered; as will the value to both parties of managing an orderly wind-up, transition or disentanglement of the relationship while maintaining overall system morale and functionality.
Ian Roher, Teplitsky Colson LLP
Taimi Williamson, Siskinds LLP - London

Plenary 2 – Hot Topics in Rescission

Sometimes it just wasn't meant to be. In this session, the panelists will discuss the steps that counsel should take in preparing and delivering a Notice of Rescission for their clients; along with highlighting the various business and legal considerations involved in preparing the notice. The differences between rescission claims for partial or untimely disclosure (Section 6(10) of the Arthur Wishart Act) and non-disclosure (Section 6(2)) will be examined, together with current case law regarding the application of limitation periods of rescission actions.  Consideration will be given to the Statement of Claim: what must be included and what might best be left out; who is a franchisor's associate and what flows from that? As part of that discussion, this plenary will address certain key issues in quantifying rescission claims, including, what is included, avoiding double-counting and windfalls, and joint and several liability.  Finally, the panelists will consider how best to get to the end-game through litigation and settlement strategies, bearing in mind recent court decisions.
Susan Friedman, Davis LLP
Derek Ronde, Cassels Brock & Blackwell LLP
John Yiokaris, Sotos LLP