Allan M. Freedman, LL.B.

2011-12-25T18:59:00.000-05:00

December 25, 2011. Merry Christmas -- Happy Chanukah -- happy holidays.

Another interesting year. I again played Santa Claus and enjoyed every minute of it.

My bucket list got a little shorter because of some of the things I was supposed to have experienced. I can't really remember any of them at this moment but they must have been good ;-))).

Life is still busy - and when I look back on the previous posts -- I wonder how time flies so much faster as you get older. Being busy isn't so bad - but it has to have at least some semblance of accomplishment attached to it, even if the accomplishment is cleaning out a garage, fixing a motorcycle or just reading a book.

For those of you who are interested -- the bucket lists are buried in earlier postings.

While gifts may be nice, I really hope the holiday season brings you are healthy and happiness. If you read the book about Steve Jobs you will understand that it is unnecessary and sometimes unwise to add the wish of prosperity.

best wishes.
allan

2011-12-03T17:57:00.001-05:00

I have again been reminded that there are rules about having a blog -- as in -- there are responsibilities in posting. I would think that the old adage would apply -- If you have nothing to say then say nothing.

Anyway, hope all is well with everyone.

2011-10-02T15:36:00.002-04:00

It is Sunday, October 2, 2011. I have been at the office; I have been watching football; I am waiting for Dexter to start a new season; I am waiting for another episode of Boardwalk Empire; I am getting ready for another wonderful week in the Office during which I have to deal with an Ontario Human Rights Tribunal mediation, a Masonic Installation Function,; a one hour teaching assignment; and most importantly, subject to the weatherman providing some respit -- at least a cigar or two.

so -- back to work.

2011-09-15T16:18:00.002-04:00

Yesterday, September 14th, I played my first 18 holes of golf in about 10 years and only about my 3rd in a lifetime. I can fully understand why.

My foursome won the "most honest golfer award". Kind of an oxymoron type of award for a lawyer. They would not even mention our scores -- if they had -- they would have been pretty decent if we had played 36 holes with the same scores.

It may be a nice friendly sport (activity); and eco-friendly except for the excremental language being used -- but it ain't for me. Besides I just couldn't bust the titanium club in half over my knee no matter how hard I tried. --- my final score was 11 over (as in I lost 11 balls).

2011-09-12T16:15:00.002-04:00

What a great weather weekend in Toronto.

On Saturday, I travelled to the Beaches and then spent a couple of hours in Yorkville with my two favourite hobbies -- biking and cigars. While in a restaurant with Len Goodman, in came Dr. House. He didn't bother us so we didn't bother him. He sat alone for a while and then had the company of a couple of other persons that I have seen on West Wing. Except for allowing them to remove one of the chairs from our table, they didn't otherwise bother or interrupt us. Very polite of them.

On Sunday I participated in the Blue, Red & White Ride for the Salvation Army Toy Fund. The Blue is for police officers, the red is for firemen and the white is for the emergency medical team. Prior to the beginning of the ride (over a couple of hundred bikes) there was a memorial service remember 9/11. It was a somber occassion.

Finally, I was asked to participate in a weekend meeting for a non-profit organization that I am involved with. The following was my answer:

my comments as they relate to accounting and summer weekends in Ontario:

I am 62 years old -- if the weather is perfect for weekends then I have approximately 13 years of motorcycling left -- in those 13 years there are less than 6 months of potential nice weekends -- meaning 24 weeks. x 13 years = 312 weekends x 2 days = 624 possible days

of the 624 possible days at least 20% will be taken up by commitments leaving 499 days free -- of those probably 60% will be affected by weather leaving 199 expected beautiful Ontario days meaning 100 good weekends in the next 13 years.

so, do we really want to have a meeting on a weekend????
allan

2011-09-09T11:40:00.002-04:00

While this has been a short week -- it has been the kind of week in which you would swear there was a constant full moon - both day and night.

Having said that, I am now planning to be on my motorcycle most of the weekend. On Sunday there is the 33rd Annual Red, White and Blue Ride in support of the Salvation Army Charity Toy Drive. It is a collection of about 200 bikes that congregate at Toronto City Hall -- and leave at noon for an escorted ride around toronto returning 60 minuts later. It is an amazing event which includes a motorcycle ride display put on by the Metro Police Motorcycle Squad.

And most important, this year there is a remembrance for 9/11.

If you want to have some serious and good fun -- come out to the Toronto City Hall on Sunday -- be there by 11:30 and check out the main event.

back again

2011-09-07T17:05:00.002-04:00

For those of you who visit for the purpose of finding some material that concerns associateships, leases, valuation of practices, etc. -- you will have to go deep into the blogs for years gone by. There is actually an almost relevant index which may be of help.

Anyway, it is September -- last week I spent four days on the bike in Vermont, New York and Pennsylvania. I rood in Rutland and Wilmington Vermont on roads that existed on Saturday and were gone on Sunday. A real shame. However, 2700 km. in four days was great on some of the nicest roads in the nices area of the continent. If you did not otherwise know, motorcyclists are avid environmentalists who take great pleasure in travelling to places which are almost untouched by urban development. We love to pull the bike to the side of the road and enjoy the mountains, valleys, rivers and other wonders of nature. It is a treat that is not generally afforded people who travel on four wheels.

Since then, I have spent some short time with the new class at the Canadian Memorial Chiropractic College. A potentially great class that is likely to excel in health care.

It is time to get back to the grind of the practice of law. I hate when business gets in the way of fun.

2011-08-12T15:04:00.003-04:00

I didn't do it -- really, I didn't do it. I did not pass on the signals at the blue jay game. After all, they didn't exactly offer it as a paying position. And besides most of my t shirts are black not white.

So, having regard to legal jargon:

1. I didn't do it.
2. If I did it -- I had good reason.
3. If I didn't have a good reason then there was legal justification.
4. If there was no legal justification then it doesn't matter because everyone does it.
5. If not everyone does it -- they should.

and most importantly

who cares.

Stealing base ball signals is right up there on par with making noise at a golf tournament. The simple response to all those involved -- get a life !!

2011-08-11T09:00:00.003-04:00

Dear Reader:

If you have found your way to this blog as a result of first going to the CMCC site and then moving on to the golf tournament "Backswing '11" and then finally hitting my sponsorship name -- then you will likely think that I either golf for know something about golf. Either assumption would be wrong.

I do, however, consider myself a reasonably good sport. So I am sponsoring the event and will host a foursome. The last time I did this I prayed for rain so the event would be cancelled. It came as a shock to find out that golfers golf in the rain -- sans lightning. So, I will be on the golf course, with three or four cigars and a like amount of golf balls. I expect to finish off both at the same time.

ps. instead of a golf cart I am intending to use a motorcycle!!!

2011-08-08T15:43:00.001-04:00

OH, hum.

Monday in the "dog days of summer".

Why? Because! Because Why!; why, because, because why; etc etc etc.

enuf said.

philosophy 101

2011-07-19T16:11:00.003-04:00

Monday morning I awoke at 6:15 am. sharp and got dressed like a real lawyer and ready to head downtown to Court to defend myself with respect to my speeding ticket. Court was at 9:00 but with Toronto traffic you can never leave too early -- so I left the house at 7:00. Two hours early and no one to bill the time to.

I got downtown with about an hour and half to spare. I read the Globe and walked the PATH. Of course the weather was sprinkly and humid. Great for wearing a suit.

I spent most of the time working on my defence and final closing. Since I have spent almost no time in traffic court I was expecting the worst -- a long line of accussed individuals with my case being at the bottom of the list.

Now I know enough about traffic court to know that a jury trial was out of the question. Since this was my first time up on the charge I did not know if bail was going to be granted -- but then I recall that you don't have to worry about bail in traffic court.

So then I focused on my defence or lack thereof. I could plead not guilty by reason of insanity -- but I have used that one way too many times. I could plead necessity but all my speeding is a necessity. I then decided that maybe I could "name drop". If I mentioned who I was married to; or acted for; or was related to; or who my friends were -- maybe I get get some sympathy. If all else failed, I could throw out some latin phrases like Res Judicata; or Ex Turpi Causa Non Oritur Actio; or Mens Rea. They all sound good and have nothing to do with anything.

Finally I met the crown counsel at 8:50 told him what I was going to do. Court started at 9:01. My case was called. The crown counsel pointed out that the ticket was defective and at 9:01:30 I left the court a free man. Wiser for the experience and sure to be a better driver.

justice was done.

ps. by the way -- the notice of trial set out the fine that was payable in the event of a conviction including victim surcharge as $5.01. But it was the principal (or principle) of the matter. So -- about $4.00 of gas; $6.75 for parking; cleaning my dress shirt $2.50; about three hours of going to the court and then the office - mega dollars; preparation time -- minimal.

but the experience -- priceless. if anyone can get a speeding ticket for $5.01 let me know.

2011-07-17T18:52:00.002-04:00

Another wonderful weather weekend. I had decided a while ago to start forgoing food after 7 pm. As a result, with an hour to spare, I have just returned from having a banquet burger, fries and a large coke. What a diet. But, while stuffing my face and having ADDDDDD I was also reading an old motorcycle magazine.

The end result was that I recalled on Friday having compared with my friend Vince war stories about various bodily injuries. While he is much younger than I am, he kept up to my littany of injuries, ie. broken bones, motorcycle accidents, lost teeth etc, ad nauseum. The description of injuries involves some very lurid details of how the injuries occured -- made all the better with a puff on a cigar.

The reason for the recollection was that in the motorcycle magazine there was mention by Gwen Roberts of a comment made by her sister Gayle which was:

"Life should not be a journey to the grave with the intention of arriving safely in an attractive and well preserved body, but rather to skid in sideways, chocolate in one hand, wine in the other, body thoroughly used up, totally worn out screaming "WOO HOO what a ride!"

so, time to add some more adventures to my bucket list.

now I have to prepare for my own HTA trial taking place tomorrow. back to the books.

allan

July 5th

2011-07-05T18:18:00.003-04:00

I spent the long weekend catching up on some serious motorcycle riding including a short ride Thursday night, a full day on Friday and Saturday and then a couple of hours on Sunday. It is a great sport and a great hobby.

I just checked out who has been checking out my blog. I don't have the slightest idea why they do but there are visitors from the US, United Kingdom, Ireland, Korea, Australia, Israel, Germany, Russia, Italy, Sweden, South Africa, a number of other countries that I can't instantly remember and Canada. I would say that each person really should spend less time on the internet -- but hopefully they gathered some enjoyment from the pictures, the jokes, the bucket lists or, heaven forbid, the information related to the realty of professional practices.

Anyway, whatever turns you on, I hope that I could add to your knowledge base or provide an instant of enjoyment.

be well
allan

June 30, 2011

2011-06-30T10:20:00.002-04:00

Since it is the end of the month I thought that I would do a report card to myself.

Dear Myself:

It has been an interesting month. Travels to Montreal for chiropractic business. A Board of Directors retreat for chiropractic business. A trip to New York for chiropractic business. In between I actually have other business to deal with.

While I cannot comment on the Montreal business trip, I can say that New York was a fun time. I attended the NACA meeting (National Association of Chiropractic Attorneys). The Organization is made up of lawyers who represent chiropractic associations or organizations across the United States. Until last year, I was the only lawyer in Canada who was a member (since 1982). While I don't get to a lot of meetings because of conflicts in scheduling - I do enjoy attending when available to hear all the issues in the US and being thankful for the fact that many of the issues are not prevalent in Canada - yet. (We are usually 5 to 7 years behind.)

This was another journey with my wife, who was able to spend some time with the group and dinner with some of the lawyers and Sandy Lambert, wife of the President for Life, Paul Lambert from Florida.

So, "dear myself" -- I hate to the see the end of June -- my favourite month of the year. Hopefully I will be able to finally get on my motorcycle and put on some serious mileage.

anyway - regards and Happy Birthday Canada.

allan

2011-06-18T12:53:00.002-04:00

June 18, 2011

Today is our anniversary. Judy and I have been married 39 years. That's right -- thirty-nine years. We are one of those couples in a very small minority.

The years have been good. There are always times of trouble - obviously none of which could have been caused by my behaviour. After all, what part of my personality and character could cause any dissention. Ok -- it was a rhetorical question.

Judy hates when I tell people that the reason for being married for 39 years is that we have a perfect marriage -- we are both in love the same man. I have a permanent mark on my left arm from being hit every time I say that. When she tells people that we have been married for 39 years -- their reaction is that she must be a saint.

So, my blog being a public area of communication -- to Judy -- Happy Anniversary. Hugs and Kisses -- love your hubby!

2011-06-09T16:23:00.002-04:00

I am full of a lot of things including one liners; two liners and other hot air. Over the years almost anyone that I meet that is worth talking to will get to hear or be forced to hear some of those one-liners. Two that come to mind are:

1. When I first met my in-laws they were at the proverbial joker of a next door neighbour who like all such individuals commenced to grill me, ie. what was I doing; what was I planning on doing with my life; what did my parents do.

With respect to the last question, I answered: My parents are in the iron and steel business -- my mother irons and my father steals. That stopped the conversation and has been a permanent part of my repetoire.

2. Whenever I decide to do something a little crazy (meaning "stupid) as in the case of motorcycling; cuba cigar smoking etc etc -- people ask me if I got permission from my wife.

With respect to that question my answer is always: I ask my mother for permission and my wife for forgiveness.

This now takes me to the point at hand. I have been told by my much better half (whose house I would like to continue to live in) that I continue to post such things as -- I have just returned from Florida ; or I am travelling to New York etc., etc. As if I am going alone. This is incorrect -- I travel with my wife (other than cigar smoking in Cuba).

So, wherever you have read "I" please change it to "we" -- as in Allan and Judy.

I hope that works and forgiveness is in the works.

by for now.
allan

june

2011-06-03T09:30:00.002-04:00

It is June 3rd -- and spring has sprung.

I have just returned from a drive down to Florida through Savannah and back through Charleston. Great trip -- lots of driving but in a great car which made the driving most of the fun.

So what's new. A heck of a lot. I really should consider a blog to be a daily diary -- but then again -- diaries are created as a personal reflection and what a waste of time. I had created this "thing" to allow people to access information that they would not otherwise have access to -- but then I am told that some of my postings are actually humurous and others are educational. Hey -- what ever turns you on.

have a great day
allan

2011-04-03T06:36:00.002-04:00

ok - so I haven't posted for a while. Probably because either I was too busy or had nothing of value to say.

sometimes the most intelligent part of a conversation is silence.

anyway, I have nothing to say right now -- nothing, nil, nada, gunesht, zippo, niente -- sooo bye for now

2011-01-28T15:03:00.002-05:00

and the magic number appearing on my Notice of Trial for "allegedly" speeding; including the fine, costs and Victim Surcharge is

$5.01

unbelievable!! If anyone can get a speeding ticket with a fine less than $5.01 I would be amazed.

2011-01-27T12:25:00.000-05:00

the over and under is now $25.00 on the fine for speeding.

summons

2011-01-26T15:17:00.002-05:00

For those with a very vivid imagination -- sorry to disappoint you but on the over and under betting which started at $100.00 the answer is -- the total charges -- fine, costs and victim fine surcharge are less than $100.00

the new over or under bet is $50.00 Over or under $50.00???

court attendance

2011-01-25T22:44:00.002-05:00

I have received a summons to appear in court for an "alleged" speeding infraction. You will never ever guess the amount of the fine if I choose not to appear in court. I have plead not guilty and received the summons. The amount is absolutely ridiculous. I will post the amount in a couple of days.

This is unbelievable.

2010-12-08T20:56:00.002-05:00

Way too much snow on the ground, and while it is nice to see -- it would be nicer if it was gone within two days. But alas, it is freezing outside and I am looking forward to Spring sometime hence.

But before that -- I have serious business. First, as Santa Claus again this year - and dancing to a melody of "swing, cha cha, rhumba and then the twist". Way too much pressure!

And then some serious Christmas shopping; overdue office work, blah, blah, blah.

anyway -- happy holidays.

nov 23

2010-11-23T22:15:00.003-05:00

It is not as if I don't like to post. It is like talking to yourself and since that is something I can't do because I keep getting into an argument with myself and then I don't talk to myself for days. So I will stick to posting or at least thinking about posting.

Went to Las Vegas for four days with my wife and two friends. It is a great place to visit if you want 4 days away from reality without sitting in the sun.

My youngest son turned 26 today. Maybe that is why I have grey hair or almost no hair. But it appears that i survived the ordeal.

For those waiting for me to fulfill my promise, I am copying the convention presentation (sans music unfortunately) for delivery. Should be done by the weekend.

stay well
allan

nov 17

2010-11-17T11:06:00.002-05:00

After getting ready to resume a life of normality -- I am making a detour and heading off for four days of intense rehab -- actually not rehab -- more a religious retreat -- actually not a religious retreat -- it is a trip to Las Vegas -- but same difference.

A much needed respit -- in the last four weeks, I had to deal with receiving an Honourary Membership in the Canadian Chiropractic Association; receiving a formal thank you at an event by the Grand Master of the Grand Masonic Lodge of Ontario (for the fund raising related to Tim Horton cards for the Military)-- it took them almost 6 months to catch me; and then the fire side chat last Thursday to the CCA convention. All sounds great but I would like to return to my underground bunker.

So now I need a few days to figure out what new mischief I can get involved in -- I am already formulatng some ideas. (bad to the bone)

Aftermath

2010-11-15T15:01:00.004-05:00

I think I have survived. I will not quite know until next Tuesday morning -- but so far the prognosis it good.

What did I survive from?

The last month or so.

About ten months ago I was asked if I would do the opening for the Canadian Chiropractic Convention in Toronto this last weekend. Ten months ago it sounded like a good idea. Something like buying a large ticket item with no money down payable in a year. Well eventually the rooster comes back to the hen house. So was it for me the last month.

Since anything worth doing is worth overdoing by at least three or four times -- I spent what would be conservatively guessed to be about 20 to 30 hours to create a 40 minute fire side chat -- inclusive of a video and audio show. Good thing I was not being paid for the work!!!

I did it, presented it and it is now over and done. As part of the project I went through over 35 boxes of material and discarded and shredded 29 boxes of material going back to the mid 1970's. My staff is happy and I am going through withdrawal.

One of the letters I came across was from Dr. Ian Coulter, President of CMCC in 1983 advising me to learn how to say "no". That is a piece of advice that I have unfortunately never learned to adopt.

So now I am back at my first day of continual work in three to four weeks. I am sad that at least two of my clients have not forgiven me and have gone elsewhere for legal work. I guess that is the price to be paid -- I am only sad that they had to go through that process.

But I am slightly rejuvenated - still in need of chiropractic care for the tension and ready to rock and roll.

And lastly, I would sure like to know who it was who had to hit by blogsite over 40 times in one day! wow -- hope it was helpful.

be well
allan

A trip to Oshawa

2010-10-19T12:05:00.001-04:00

In the late 80’s, Ed, a Real Estate Agent, contacted me about a problem he was having. He owned a house in Oshawa that he was using as an investment property and leasing it. The problem was that he had two tenants, one leasing the first floor and one leasing the basement. At the time, basement apartments were generally contrary to municipal by-laws.

Ed had been charged with a by-law infraction which required a court attendance.

Ed asked for my assistance in dealing with the matter. I advised him that he had little chance in obtaining a not guilty finding. He was very concerned about the matter, and eventually persuaded me in attending with him on the trial date. I expected a finding of guilt and a fine of about $500.00. Ed still asked for my attendance.

I don’t recall exactly what time of year the trial took place, but the weather was sunny and mild and the drive uneventful.

When we arrived at the courtroom there were about a dozen women who were there as an “accused” or were representing their spouses. The only males in the courtroom beside Ed and myself were the Judge, Crown Attorney, and the building inspector.

We were about number 4 or 5 on a list of about a dozen cases.

One after another the charge of breaching the municipal by-law concerning basement apartments was read, each accused pled guilty, the facts of the case were read into record, and the Judge fined the individual $500.00.

After observing the first two cases, Ed was looking pretty forlorn. By the third case, I advised Ed that I thought we had a good shot at a not guilty finding. He was to say the least suspect and was ready to pay the $500 fine.

Our case was finally called. I took my place with Ed at the defendant’s table. The Judge asked for the charge to be read. He then asked for a plea. When I directed Ed to say “not guilty” the Judge, the Crown Attorney, the stenographer and the court clerk all perked up. There was a general awakening in the courtroom. The Judge looked a little suspect and the Crown Attorney and the building inspector grinned.

The Judge asked the Crown to proceed. He called the Building Inspector to the stand and after being sworn in, he was asked to provide the results of his investigation. He reviewed his notes, which were glanced at by the writer prior to the giving of evidence. Based upon the testimony of the building inspector there was no question that the basement apartment of Ed’s house was being rented and occupied.

It was my time to cross-examine the Building Inspector. I asked him how tall he was. The crown jumped up and the Judge asked me what I was doing. I asked for an indulgence indicating that I had only a few questions after which everything would become patently clear. He advised me to go ahead with some caution.

The inspector answered, to my best recollection, 6 feet or so. I then asked him what he weighed. The crown began to rise, the Judge gave me a glare and I indicated that there were just a few more questions. The inspector, again to my best recollection, indicated about 180 lbs.

I asked him if he was in good health. The glares again came from the Judge, but before any objection, the inspector said “good”.

My response was, “you would have to be in good condition” to carry around your typewriter when you do your inspections. The inspector was confused. The Judge sat up straight and the Crown looked uncomfortable.

The inspector said that he doesn’t carry his typewriter to the residences. I responded that he must since his notes were typewritten. The Judge was now glaring and the crown had his head in his hands.

I then indicated that if what he was producing were not his notes taken at the time of inspection where were they. He indicated that he did not have them. Only the typewritten notes.

The Judge stared at the Crown who jumped to his feet and indicated that the Crown was withdrawing the charges. We attempted to hold back our grins, but without much success.

As I left the courtroom, the remaining women asked quietly what had happened. In more than a whisper, I said “plead not guilty”.

Ed was a happy camper and a couple of years later, the Ontario Government changed the rules so that basement apartments became, subject to meeting building standards, legal.

The moral of the story is that even though lawyers have the courtesy of the court to proceed at the top of a trial list in court, never go first. Watch and observe what is happening. You never know what the first two or three cases will reveal.

a true courtroom story

2010-10-14T09:12:00.001-04:00

And for your reading pleasure:

Back in about 1981 or so when the dollar limits of Small Claims Court were $600.00 I was living at the northwest corner of Don Mills and Steeles Avenue in Markham, Ontario, being a simple a walk across the street into Toronto. My office was at 2 Sheppard Avenue East in North York (Toronto), Ontario.

I was asked by an older (50’s or 60’s) individual to defend him in a Small Claims Court Case involving about $500.00. His company had leased a car from a dealership in Dunnville Ontario, a small town south of Hamilton. He had missed a payment or so, and the dealership issued a claim against him personally and not his company. Based upon what I knew about Mercantile Law he had a slam dunk defence.

He really couldn’t afford the legal fees for me to travel to Dunnville, so we finally agreed (since the case was being heard in October) that my recompense would be a basket of apples.

We (Bill, and Helen) drove to Dunnville. The case was about 6 or so on the docket list. I listened while each lawyer introduced himself or herself to the Court. It became apparent that any lawyer from a town larger than a couple of thousand population was going to be in very big trouble. Lawyers from Hamilton, London, St. Catherines, Niagara Falls were being treated with less deference than their small town breatheren.

At the morning break, my client expressed his opinion that our attendance at trial was going to be a large waste of time. As soon as the plaintiff, from Dunnville, its lawyer, from Dunnville, and the Judge from Dunville got a whisper of me being from Metropolitan Toronto, we would be toast.

I advised my client to sit in the back of the courtroom when the case was called. I told him nothing more.

Our case was finally called. The plaintiff was given a nod by the Judge. The other lawyer was welcomed to the Court by the Judge. He then looked over his spectacles and asked who I was.

My response was simple. “Allan Freedman”, your Honour. “And where are you from Mr. Freedman”. “From Markham, Ontario, your Honour”. “And where is Markham, Ontario?”

I replied: “Sixty miles south east of Barrie, your Honour”.

My client started coughing. I heard a lot of snickering in the courtroom.

I won the case.

2010-10-11T18:49:00.002-04:00

The end of another long weekend. The weather was great and I actually did everything in moderation.

Friday night, I was taken, kicking and screaming, dancing. My wife is great and like most things, I faked it. Not having put on the dancing shoes for a few months, it was like getting back on a bicycle -- the "body memory" comes back quickly. A great way to get exercise (if I wanted exercise.) But I need all the spousal points I can get.

Saturday, a little bit of work, a little bit of motorcycle riding and then a nice quiet night at home.

Sunday, a lot of riding -- to Brantford and back taking in all of the back roads. A literal pain in the neck by the time I got home.

Monday, a day back at the office, And now, smoking a cigar (my only vice) and getting ready to do some more work while watching playoff baseball.

The remainder of the week will be crazy, at best -- ending in a short trip to Sudbury to start a hearing before the Ontario Human Rights Tribunal.

I really, really have to get down to preparing for my monologue for the CCA convention. Time to come up with some new one-liners or an entire new audience. The new audience might be easier to come up with.

Anyway, too all, a very healthy, happy and peaceful Thanksgiving.

October

2010-10-09T20:43:00.002-04:00

Its the end of the first week of October and the days go by very, very rapidly.

I haven't put away the car or motorcycle like last year at the beginning of October. I am either more optimistic or desperate as to what little down time I may have. Merely put 3K on the bike. If I wondered where the time went it probably ended up in the client files, presentations, ad nauseum.

I actually received a complimentary copy of a text on Alternative Treatments in Cancer Therapy. I wrote the chapter on Legal Issues. I would like to say it was fun -- but I would be really, really lying.

Now I just have to get ready for a quick trip to Sudbury (for anything but fun) and then prepare my monologue for the CCA convention. Being funny and witty can really be difficult so I will likely merely be sarcastic.

I should probably be writing some more articles for DC Canada -- but they don't seem to be in need and I never do articles for advertising -- so I can just back off and if they need me they can find me. I am sure the time will be filled -- it is like putting your finger in a glass of water and then removing it -- the void always seems to get filled.

Most importantly, Dr. Herb Lee is turning 100 on November 5, 2010!! Now that is news worth reporting.

Be well and be good.

Labour Day and Beyond

2010-09-06T21:25:00.002-04:00

Summer is over. It doesn't matter that it is not September 20th or 21st. It is labour day and time to stop wearing white, etc. The weather had been wonderful in Toronto until this weekend. Not one lousy mile or kilometre did I put on the motorcycle. Just plain lousy weather. Bad enough that I actually went into the office today and took out all my frustrations on ripping up useless copies of printed documents. I am committed to going almost paperless within 18 months. That is just about when the warranty will run out on the scanner.

I now have to put my attention to dealing with the various clientelle issues together with preparing for a number of lectures and presentations.

I have a power point presentation ready for next week and then I have to get ready for another presentation a week later. I also have to get geared up for the opening of the Chiro Convention in November. I guess I have two months to worry about that one.

I finished proof reading a chapter I did for a medical text coming out of Montreal. And I even got in one road trip -- albeit in the sports car -- through New York State into the Atlantic States and up to New Brunswick, through PEI, back to T.O. through Quebec. 5 days - 4000 k. Too short in time and distance.

So now back in the saddle and back to those 1/2 day work days -- ie. 7 in the morning until 7 at night.

2010-08-15T20:39:00.002-04:00

Ok. Ok.

So I haven't written anything for a while. It is not as if I am getting paid big bucks for putting non-earth shaking facts on the internet.

I have been way to busy -- and just last week I had to spend time with about 150,000 of my closest friends at Port Dover at the Friday the 13th motorcycle rally. It may not be an event that will change the world -- but it does add some respit from a crazy world.

I will be back soon to putting my trivia on the internet.

be well

2010-06-11T15:20:00.003-04:00

Brian Seaman had graduated in 2002. In about 2004 we were chatting about the ill state of professional practices and how graduates just didn't get the "big picture" when it came to setting up an office.

It has always been my belief that a professional school, like chiropractic colleges, should teach students 3 fundamental things. First, how to diagnose a condition. Second, how to deal with a patient health problem. And third, how to create the environment in which those processes will take place. It does not matter how wonderful a diagnostician or practitioner a graduate might be -- if they are unable to create the office envirnment in which to carry out those functions they will be doomed to failure. This can come in many forms: not hiring proper staff; bad accounting methods; inappropriate leasing; over consumption of practice equipment etc. etc etc.

But lecturing has its limitations. Looking at drowsy faces at 8:00 am. on a Wednesday morning, there may have been a few students who were able to survive the two hours of diatribe even if it was mixed with ill humor, sarcasm, wit and words of "worlds ending and impending disasters".

During the conversation with Brian, we stumbled on the idea that the students should be required to "walk the walk" before stepping into the "real" world. This would be based upon the students being put into groups of between 4 to 6 students and being required to create a business plan involving anything from the establishing of an office; associating, purchasing a practice or any variation. The project would require that the students do a demographic study; lease or buy property; create an office design; cost out the leaseholds, equipment and office supplies; do a bank proposal including financial statements; create office policies and marketing; deal with insurance and patient documents. It truly was to be the creation of an office.

The first year of its use would be 1985. I was going to name it the "Seaman Project" but was a little concerned about the maturity of my students. I was then going to use Brian's initials, but I had even more concern about the title "BS Project", so it eventually became the Jurisprudence Project.

2010-06-09T20:21:00.003-04:00

It just doesn't quiet down. When I thought I would get some time to do some more writing, I end up with a few more urgent issues. I just finished dealing with a judicial review application but more will be said of that when the decision is released in late August. The results were as expected and quite satisfactory, even though a little sad for the individual on the other side of the application.

Anyway, by the time I had taught my risk management course for a few years -- consideration was given to increasing the information that was to be taught to graduating students in the area of practice management. The course was being taught by a chiropractor, but was a little off the mark for what was necessary to establish a professional practice. This was not unusual since I knew of no professional school in Canada that was preparing professionals for anything other than their specific discipline. I graduated from law school with almost no knowledge relating to matters relating to practice. It was a matter of "trial by error".

In about 1980 or so, I was asked to co-teach a course in practice management and by 1982 I was left to start teaching both risk management and practice management. At its "height", I was teaching a third year course preparing the students for risk management issues in practice and a fourth year course in practice management. While it would have been easier just to provide the information myself, it was not a "legitimate" method of presenting information to the students.

As such, I cajoled, dragged in, begged, pleaded and coerced individuals to assist in the teaching of the course through guest lectures. From about 1982 until the completion of my teaching, the students had the privilege of having lectures given by the following individuals: Ernie Wolkin, Paul Carey, Greg Dunn, Jo-Ann Willson, Sil Mior, Jean Moss, Chris Paliare, Linda Rothstein, Ian Roland, Maureen McCandless, Doug Brown, Nick Tantalo, Harry James, Len Goodman, Don Nixdorf, and a further group of architects, accountants, bankers, and chiropractors.

These individuals who gave of their time and expertise to provide the students with invaluable information that very few people could afford to obtain on an hourly basis. I was never quite sure that the students understood or appreciated what they were receiving, but occassionaly years after graduation I would meet a student who would actually express appreciation for the depth of information that was being provided to them by these experts.

The information being given to the student through the lectures should have been enough. But a chance discussion with Dr. Brian Seaman, a 1982 graduate, of Halifax, Nova Scotia and a member of the Board of Governors of CMCC led to a new dimension in chiropractic education. An innovation that I have been proud of ever since.

2010-06-02T22:05:00.003-04:00

It has been a couple of wild weeks which have involved dealing with Human Rights Complaints; privacy issues; judicial review applications and the usual amount of aggravation.

But back to history.

By the middle of start if the 80's I was teaching 2 hours a week for the entire school year. It was actually quite enjoyable because the students were deeply interested in knowing and being prepared for what was going on in the real world. The third year course prepared the students for clinic and the fourth year course was to provide information on the establishment and operation of a health care clinic.

The issues in chiropractic in my first ten years of being involved in the profession were interesting, entertaining and adventurous. I took great pleasure in fighting some of the battles which continued with respect to the attitude of hospitals, governments and other health care workers. I didn't appreciate chiropractors being referred to as "mr" and I appreciated even less the attitude of a hospital or medical doctor who thought that patient information was not going to be provided to a chiropractor, even with the consent of a patient. Pro Bono work dealing with such nonsense was rewarding.

I recall one incident in the late 70's; early 80's where a west end Toronto newspaper writer decided he would do an expose on chiropractic. It was worse than junk science with no factual information -- just basic nonsense about the educational background and training of chiropractors at CMCC. It was a two part series. I recalled the writer's name and so I did a little research. It turned out the writer had been a pharmacist who had run afoul of his licensing body and had his license revoked for fraud. My letter to the publisher gave a polite request for the writer to refrain from any further such reports or he could deal with the fallout of the lack of integrity of the writer. My language was a little bit more colourful, but in any event he must have gotten the message. We never heard from the writer on the issue again. As I said, those were interesting times.

2010-05-14T18:28:00.004-04:00

Sometime in the last century, probably near the end of the 70's I was asked by Dr. Terry Watkins to participate on the Publication Committee of the Journal of the Canadian Chiropractic Association. At the time Dr. Michael Wiles and Dr. Janice Wiles were the editors of the Journal.

My first article in the Journal was entitled "Privilege". Interestingly, the principles set out in the article in 1977 are pretty much still applicable today. I have had the pleasure of writing further articles for the Journal over the decades dealing with matters involving risk management and business law. Dr. Watkin's leadership as the head of the Publications Committee was more than commendable and his dedication was paramount for the development of the publication to a worldwide respected journal under the subsequent leadership of Dr. Allan Gotlib.

It is my not so humble opinion that the profession of chiropractic in Canada owes its reputation to a few very well established and credentialed entities: the Canadian Memorial Chiropractic; the Journal of the Canadian Chiropractic Association; the Chiropractic Research Foundation and the Canadian Chiropractic Examining Board. There may be disagreement among readers but I find that the four groups have something in common -- actually something they lack -- an overwhelming desire to not pigeon hole chiropractic care and a philosophy based upon public protection.

Anyway, in addition to being published in the JCCA, my diatribes have also appeared in the Canadian Chiropractic Magazine and Dynamic Chiropractic. The articles speak for themselves. I hope that they have had some impact on profession.

So now back to the late 70's. I did a short two year sojurn of teaching at Senecca College in a Business Course. Again, fun and a distraction at the time, but alas you can only juggle so many tasks at one time. Actually not true, but when the task is not fun -- my favourite thing in life is being able to say hausta la vista!

2010-05-09T10:18:00.002-04:00

1982 was a pretty good year. Ian Coulter had become President of CMCC, Doug Brown nominated me as the first Honorary Member of CMCC which was given to me by Richard Luck at the CMCC Homecoming Gala and some time around that time I was invited to speak at the Alberta Chiropractic Convention. It was a wild event which must remain between myself, Dr. Luck and all those that spent the Saturday evening telling stories until 2:00 am (Dr. Carter, Dr. Gushaty, Dr. Ball, Dr. Ladell, spouses, Dr. Luck and maybe more). It was during this time that I learned that Dr. Luck has tried to walk on water. I also met Dr. Tom Amalo (but that is another story.)

It was also the year that I became the only Canadian (foreign) member of the National Association of Chiropractic Attorneys. I was given a warm welcome in Denver at their annual meeting. I quickly learned that anything that happens in the USA will reach the Canadian border within 5 years.

During the early '80s I travelled with respect to the chiropractic profession to Kansas City, Denver, Detroit, Lake Geneva (Wisconsin), Banff, and Vancouver. Interesting times.

2010-05-06T22:36:00.003-04:00

The Grand Ballroom of the Inn on the Park holds about 1200 people. There were about 1100 people in attendance. A few more people than were originally estimated. I was supposed to be introduced but since there were still tables being set up -- I merely went to the podium and started the proceedings.

I was not educated to be a comedian even though some of my students thought I might be a joke. But what the heck the most they could do is "boo" and it was not like they were paying me for the work. I started by telling a story which was supposed to be a joke -- it was a little religious in nature but it got some laughs. What I forgot was that right after telling a religious joke I had to introduce a Minister to say the invocation. He took it in good stride.

Before and after introducing any speaker, ie students, faculty etc I would tell a joke and do some one liners. It became a little disconcerting since I would (without bragging) get a great laugh and then about 30 seconds later there would be further commotion and more laughter. It took a while for me to realize that what I was saying was being translated into French at some tables which resulted in a delayed reaction.

I recall introducing Dr. Stu O'Brien who was a clinician at the time. Dr. O'Brien had a reputation of being a little too self-assured. In addition he never wore socks if he could get away with it.

When it came time to introduce Dr. O'Brien as he was walking to the podium I told him I had two questions for him. The first was whether the pair of socks that I produced were his. The second was -- "if he had to do it all over again -- would he still fall in love with himself". That got a big laugh and even a bigger laugh when he no longer could do his speech from memory and had to go back to his table to get his written copy.

The rest of the night went well and at the end, I produced my hankie -- waved at everyone -- said goodnight and turned the hankie into a cane. The trick went over very well.

It was an amazing evening and has made me remember with fondness the class of '82.

p.s. the Inn on the Park ceased to exist a number of years ago.

2010-05-01T15:20:00.003-04:00

7.

In 1981 I had been asked to introduce Dr. David Drum as a speaker at the graduation banquet. To show how ridiculous my memory is -- it was held at the Holiday Inn City Hall. Alan Thicke was the main speaker and there was an additional chiropractor who was speaking. I recall his name but will not mention it since his talk was far from successful. Actually, if you want to receive an ovation from an audience, I learned from him that just keep talking 20 minutes past your allotted time and the audience will clap until you shut up and sit down.

The difficulty was that I had to stand up and introduce David right after the long winded speaker. The audience was not happy and I had to try and get them back in the right mood. I suppose it went ok because, as I have indicated the next year they wanted me to be the Master of Ceremonies. and here is that story.....

As I recall, to the best of my recollection, I was asked in about February if I would take on the task which was to happen in May. This is the class which, in first year, I was to read the riot act to. It was made up of some fantastic individuals who would become leaders of the profession including Brian Seaman and Peter McGee.

I inquired as to the number of participants and was told about 350 people. Since I had not done a banquet before I was a little hesitant but being that I have never been smart enough to turn down a challenge I accepted.

My late father-in-law was a tailor. When he heard what was involved he decided I needed a new custom made tuxedo. Things were looking good. I then started on my list of stories, introductions, jokes, etc. That started taking at least an hour a day. I still have the same jokes in my repertoire.

By March the organizers indicated to me that the attendance had increased to about 600 people (and not because of my participation). Again, I was too stupid to worry.

I decided that I would step up the event and visited a magic shop. I bought two items. One to throw a flame and the other to turn a hankie into a cane. The latter was easy. When I showed the first trick to my secretaries I proceeded to burn the hair off my hand and arm -- so that idea was put to rest.

By the end of April I was told that attendance was now at about 800. It seems that all 150 or so students would be attending with their significant others and a litany of family members. Still no problem.

The date eventually arrived and I travelled with my wife to the Inn on the Park. As I was entering the building I was accosted by Mark Robson and a couple of other individuals who indicated that they had underestimated the participation. Apparently the crowd now numbered 1100 and tables were being set up as the event was to begin. I really must have been in a fog because I wasn't ready for the payback the students were giving me for the attitude that I must have had when teaching them. But what the heck they promised to triple my fee -- I negotiated for 4 times (4 times zero is ...... well you work out the math.)

I entered the banquet room -- there was pandemonium in people getting to their tables. I had to introduce myself. More to come.

2010-04-27T20:12:00.004-04:00

6.

Life was pretty consistent during the first, second and third years of my sojourn at CMMC. By the end of the 3rd year, I was spending some time with the Dean discussing the issues surrounding the practice management course taught to the students. After assisting Dr. Padachuk with the course for a year, it was determined that my course requirements should increase to include more issues of risk management and practice management.

The course eventually evolved into a two year course -- third year involved the risk management issues necessary to be dealt with prior to entering into the clinic; and the fourth year course involved matters of importance to a new practitioner including issues involving the establishment of a practice. My still active speeding reading allowed me to grade the 150 or so chiropractic legal reports and two full sets of exams - all in my spare time.

By 1982, I had met up with Alan Adams and Ian Coulter. Both individuals were superb academics and logicians who could approach a problem with the efficiency of a military officer. There were ups and downs, renovations to the premises and legal matters which shall continue to remain subject to the 75 secrecy code (as if there is one).

Dr. Coulter became the first non-chiropractic president of CMCC and was required to deal with some of the more important issues within the profession and CMCC's history including accreditation. His vice-president was Kitch Hayman and then Jean Moss and the dean was Alan Adams and then David Dainty.

In 1982, Dr. Rich Luck was chair of the Board of Governors, Dr. Doug Brown and in about February 1982 I was asked by Mark Robson of the graduating class of 1982 to be the graduation banquet master of ceremonies........

2010-04-26T20:16:00.002-04:00

5.

I spent the summer of 1977 revising my lectures – actually I did it while babysitting a newborn son, the second of three. The material was taking on a flavour beyond merely being the diatribe of a lawyer talking to a jury.

I can’t recall much of the teachings of 70’s other than a couple of incidents which are embedded in my diary of interesting escapades. The first involved a fourth year class that wanted to “strike” in the name of student power. It was an interesting battle of wills. In any event, the students were in school, in clinic and not picketing on the streets. The second incident involved me being asked by the Dean, Terry Watkins, to go into the first year class and advise them of the attendance policy of the school. It was like Daniel walking into an arena filled with Lions. The students led by Peter McGee advised me in no uncertain terms that such demands were beyond the realm of maturity. During those days, students actually attended the classes that they were paying for. The first year class was the class of 1982 – a very, very memorable class.

During me early years at CMCC I met up with legends in the chiropractic profession, many of whom have been friends through the decades. In particular there is the legendary, Douglas M. Brown, a prolific writer, a wit beyond compare, a defender of the faith in all things CMCC and many more things that would fill a litany of chapters in the history of chiropractic. We first met at a CMCC fundraiser. I was handling the wheel of fortune. He was handling another money grab. Not that I am overly competitive, but there was no way that I was going to let a chiropractor beat me at separating attendees from the cash in their wallets. It’s a lawyer thing. Anyway, we introduced ourselves and have been friends ever since.

I also had the privilege of meeting such individuals as Dr. Herb Lee, Richard Luck, Len Cunningham, Ken Smith, Darrel Ladell, Ed Demchuk, Paul Carey and Leo Rosenberg. Not all paths were crossed with the greatest of ease. In some cases, there were downright battles that were fought. But those are other stories.

By now, you should realize that while I am travelling through my history of chiropractic, I am not at liberty to set out all of my experiences, trials and tribulations. I am bound by what is commonly referred to as “solicitor – client privilege” meaning that there are certain adventures that can’t be told by me under pain of disaster. But there are still adventures that are outside of my constraints, so there is more to talk about.

2010-04-25T19:32:00.002-04:00

4.

After two or three months of preparing lectures, Prof. Rozeiu sent me a copy of the course outline last used. I was a little embarrassed. I had been preparing lectures concerning the establishment of laws, the Magna Carta, the Napoleonic Code, ad nauseum The course outline give to me set out lectures on Intentional Torts, Negligence etc. It was a relief to know that the lectures would actually have some relevance.

So, after hand writing out nine lectures, getting my best suit pressed and being sent off to school on the first day of lectures, I stood in front of the fourth year class in September, 1976. It was a stressful situation. The students were my age or older and frankly had just about as much experience in life as I had. I just had one thing that they didn’t -- a law degree.

I had always wanted to teach. In third year law school I had been offered a teaching position at McMaster University in the MBA program. I would be entered in the course, teach and continue my articles. It would be a great set up except that the Law Society would not allow a part time articling program and not wanting to postpone the inevitable ordeal I passed on the once in a lifetime opportunity. The next great opportunity presented itself at CMCC.

Sitting in the class at 1900 Bayview Avenue were such future chiropractors as Howie Vernon, Bob Haig, Roberta Koch, and John Cosgrove. Since I am doing this through long-term memory and without reviewing extraneous documents, I apologize to anyone whom I forget to reference.

My first lesson was not so much of what I taught the soon to be doctors of chiropractic but what the students taught me. It is a simple lesson that animal trainers and teachers learn early in their careers -- “show no fear”. If you do, you will be eaten alive. So, I held my ground and acted as if I was speaking from experience – all at the ripe old age of 27 years. I also learned the second important lesson: “The key to success is sincerity, and once you can fake sincerity you have it made.” The lessons were coming fast and furious.

I remember the year going by rather uneventfully. I met some interesting individuals on staff: Don Sutherland, Terry Watkins, Lee Anderson, Adrian Grice, Jean Moss, Glen Engel, Brian Schut, and Don Henderson. There were many, many more but even my memory doesn’t work that well. I do recall being at the Christmas Party and being one of the few people who did not eat the potato salad and being quite grateful for the next few days.

I also remember attending at Graduation in May 1977, being the first of continuous graduations that I have attended religiously since that first convocation. It was always my favourite day of the year!

2010-04-24T14:34:00.002-04:00

3.

I continued dealing with the plan of management set out by Allan Gotlib, overseen by Dr. Kilgannon and visited CMCC once or twice a week for adjustments, modalities and even a time on a table trying to stretch me to new heights. Each visit added to my belief that chiropractic could do for me what nothing else had been able to accomplish -- pain relief and much more mobility.

I eventually corresponded with Alfred Rozeiu in the early spring of 1976 (having now become a member of the legal profession) with respect to the potentiality of my teaching the course that used to be taught by Dr. Homewood and as required by the Drugless Practitioner’s Act of Ontario as it related to chiropractic licensure. We met, chatted and then he arranged for an interview with Dr. Herb Vear, the Dean of CMCC.

When I met with Dr. Vear, he invited me into his office and while he finished a phone conversation, I was able to view the multitude of pictures on his wall which were made up mostly of World War II fighter planes. Dr. Vear had been in the Air Force during the War. We spent most of the interview talking about his adventures and ordeals during the War. I didn’t have to say too much.

I was offered the position and Professor Rozieu subsequently advised me that I would be providing 9 lectures to the 4th year class starting in September, 1976. The course was entitled “chiropractic jurisprudence”. I had no idea what that was, so I spent a couple of months preparing lectures on “jurisprudence” as I understood the term in law school. Boy, was I wrong!

2010-04-23T08:12:00.009-04:00

Five in a row and still counting. I am really getting the hang of this. Another realization -- do a posting whenever you get five minutes -- so at 8:13 am. here it goes.

2.

That first visit to the Canadian Memorial Chiropractic College at 1900 Bayview Avenue in the City of Toronto was obviously not going to be my last. Allan Gotlib, as I recall, indicated that I would need 9 or so treatments. I remember asking if I could get them all at once. As I recall, I didn't realize that an intern, at that time, might have to see a patient for nine visits to get a credit -- actually I needed a lot more than nine treatments and still need treatment.

I have and continue to take exception to those people who say that when you see a chiropractor once you have to see him or her forever. it is a ridiculous statement no different than suggesting a trip to a dentist should be a one time visit. My bad habits continue and it takes chiropractic care to keep me on my feet -- 190 lbs standing on two 9 inch bases -- you can do the science.

Anyway, back to our story -- I continued with the care -- involving adjustments, modalities and even being hooked to a bed which tried to stretch me to a new height -- literally.

When I received the first adjustment -- I must say I acted rather abruptly and mentioned something about the legal system. Dr. Kilgannon was not all together happy about not being told I was a lawyer (I was only an articling student). Eventually the conversation became more cordial and we discussed the teaching of "jurisprudence" at CMCC. It had been taught by the esteemed Dr. Earl Homewood.

The next chapter of my adventure was into the world of jurisprudence at CMCC and meeting with Alfred Rozieu and Dr. Herb Vear................

2010-04-22T20:31:00.004-04:00

Another day another post. Actually two. I posted an index to assist in finding the articles on such things as valuations, contracts, associates, and agreements of purchase and sale. Good sailing.

Now I am moving in a different direction. I had sort of promised myself that one day I would put into writing all of the people who I have come into contact with in the health care professions starting back in 1976. Not that it matters to anyone in general, but I am going to try and do this in chronological order. This should keep me blogging for a few weeks or months. So here goes:

1.

My first contact with the chiropractic profession came when I returned to Toronto from attending law school at the University of Western Ontario. I had spent three years complaining of an ear ache and was astutely diagnosed as it being a matter of "tension" and being prescribed valium. Nice way to keep a person with ADDDDDDD (not yet a known problem) smiling through law school. A friend from back in early school was enrolled at chiropractic college and as an intern was rubbing his hands in glee when we decided that I should seek a proper diagnosis and treatment at his hands. The person in question was Allan Gotlib, who is now Editor in Chief of the Journal of the Canadian Chiropractic Association.

I attended for the assessment which as I remember it was termed a "subluxation". I had been x-rayed and after a consultation it was determined that an upper cervical adjustment was what was needed. Being anxious for the treatment but not exactly co-operative, soon to be Dr. Gotlib called upon Dr. Bob Kilgannon to assist in the treatment. It would work like a charm and a pain that I had suffered with for years was gone within days as I remember it. I still need treatment from time to time -- but that will be a story for a future time. Needless to say, I remember that first treatment as if it happened yesterday. Too bad it hadn't happened decades earlier.

More about that first visit and subsequent visits and more persons tomorrow and thereafter.

2010-04-21T19:23:00.002-04:00

Three days in a row. I really have to get back on the motorcycle.

I received my copy of Dynamic Chiropractic Canada. Nice article if I do say so myself. My secretaries like the titles more than anything, ie. "legal manipulations; don't worry be happy; tick-tock; the smell test; the big picture". In another life I might have been a writer for a rag that you would read in a checkout line in a grocery store -- but that is another story.

If DC requests another article -- it will be dealing with "running through the thorn bushes". Use your imagination.

2010-04-20T21:33:00.002-04:00

Two days in a row for posting a blog. Amazing.

Anyway, it was sunny and 21 degrees in Toronto today. Another day spent in the office and putting out fires. My latest article appeared in DC Canada -- title was to be "the big picture" but literary discretion always wins out. Now I am tossing around the next article. It will likely come to me at about 3 am in my sleep and then I will forget it by the next morning.

Still having a respit from dancing until my wife is ready to put on the dancing shoes. Having the honourary title of "least dedicated and most entertaining member" of the dance studio gives me certain indulgences in terms of attendance.

Apparently I have volunteered to participate in the Chiropractic Convention in Toronto in November. I am sure that I will be able to get myself in some kind of trouble at the function. After all, I wouldn't have it any other way.

Rules and Regulations

2010-04-19T20:38:00.002-04:00

I think that there may be rules of conduct when creating a Blog - like assuming a responsibility to post every day, twice a day or three times a day. My problem with HDADDDDD is that I move from activity to activity without regard to such rules. You either get my attention in 15 seconds or its time to move on. So, sitting and writing a Blog is something that requires commitment. Except for 37 years of marriage, 34 years of practicing law and 32 years of teaching -- commitments are a general pain. So I apologize for not providing any words of wisdom that can be put to paper.

Frankly, it is spring time in Ontario -- and there haven't been many springs in Ontario in the last few years.

So the motorcycle is now operational - even if the pipes have to be changed and I burned the hell out of the air horn. The sports car is getting serious mileage and is my favourite daily activity. Other than that -- everything is done on an ad hoc basis.

Responsibility

2010-03-19T15:15:00.003-04:00

Apparently there seems to be an unwritten rule that if you have a Blog you are supposed to maintain the Blog which means you have to contribute to the Blog. So much for rules.

Anyway, I made it through my Cuba trip with very little to report on. If the saying is: "what goes on in **** stays in ****", then I have nothing to report because nothing happened.

The interesting thing is that upon my return, I had two clients who actually said they missed me. (Obviously because I did not access a cell phone or a computer.) After 34 years of practice it was a nice experience.

I must unfortunately report that I may have taken a very large step to growing up or maturity. The weather in the Toronto area this week was glorious with sunny skies and temperatures in the high teens. Considering that I have a motorcycle and sports car ready to be taken out of winter storage - I left both of them hibernating. The first days of nice weather are dangerous in terms of driving and drivers. I can't believe I did not sucumb to the urge to be as crazy as the other drivers on the road. Oh well, growing up can be the pits.

I have now received confirmation that I somehow volunteered to do an opening presentation at the Canadian Chiropratic Convention in Toronto in November, 2010. Six months away. That is a tight schedule in terms of preparing to the point of looking like it is not a prepared presentation. I have promised myself that it should be a wild experience -- pictures, etc. I can't mention the title of the speech but considering that I came up with "legal manipulations" as my by-line in Dynamic Chiropractic Canada you can expect the topic and presentation to be irreverant. Besides, what are they going to do -- not pay me; fire me; give me an attitude adjustment ??.

be well.

Olympic Report

2010-02-20T19:44:00.002-05:00

Actually any report that I could give can be seen in the local newspapers -- so I will not bother to report other than two of my three sons are having a great time partying in Vancouver. It really looks like they are having a blast (for those of you born after the 80's -- that means having a good time).

The weather has been sunny, the temperature is above zero and no snow on the ground. I am tempted to crank up my motorcycle but that would bring on the snow without any question.

I have just about had enough of the winter even if it has been relatively mild. I have now booked the annual trip to Cuba for an overdose of mojitos and cigars. It is my destination of choice since there is no reason to take my computer. A week of doing nothing -- I can't wait to be bored to death. It is an interesting feeling - but just for a short period of time.

And when I get back, the next weekend the clocks are set back an hour -- I am always amused by the fact that it is reported that we get an extra hour of sunlight -- not if you wake up at sunrise. But, nevertheless -- it will give me a reason to get the motorcycle ready for when the snow and salt disappear. and then, and then, and then -- I get ready to bring out the car - none too soon. yee haw! but never fool with mother nature - she has a way of waking up and biting you on the rear.

Yada Yada Yada

2010-02-04T22:14:00.003-05:00

Alright so I have a limited vision of the world. My entire range of interests amount to: motorcycling; health care issues; ballroom dancing; television and such bad habits as cigar smoking. What the heck -- you only come this way once and it isn't a trial run.

But for the most part I spend my days dealing with cynics and persons who actually have to be paranoid. In my case, "just because I am paranoid, doesn't mean the world isn't out to get me." It is the nature of the legal profession. However, there are times that even I can get some major enjoyment out of the interaction that comes from being a part of the legal profession.

Even more so, I have spent decades dealing with risk management in the profession of chiropractic and all of the difficulties that arise in health care. Well -- will wonders never cease. Yesterday I received an email indicating that the CTV Olympic web site was up and operational. Within that site is a health and wellness area and to my utter amazement -- there it was -- the chiropractic corner. It is spectacular, fabulous and a tribute to the profession and the CCA.

So check it out -- once, twice or a dozen times -- and tell your friends, family, associates and strangers. It is worth a visit.

To the CCA -- congratulations on a job very well done.

http://www.ctvolympics.ca/health/index.html

and enjoy the Olympic games. me -- I will be watching from my couch, eating popcorn and drinking Pepsi.

Optimism

2010-01-26T19:33:00.004-05:00

If I recall correctly, I do not think that I ever sat through an entire episode of the Tonight Show going all the way back to the 60's. I have seen tidbits from time to time, but having ADDDDDD, and trying to be asleep by 11:00 there was not a chance that I was going to survive a full episode. But, like all the baby boomers who say they saw the Beatles live or were at Woodstock, I had to see at least a portion of Conan O'Brian's last episode. Conan made a point of indicating that he had no time for cynics -- they were not the type of person with whom he wished to associate with.

What is relevant to my posting is his comment about not wishing to entertain people who are cynics. I do not believe that cynicism and paranoia are synonymous. That is why, I have repeated over and over and over the phrase: "hope for the best, plan for the worse, and expect the unexpected".

That being the case, here is what I hope for the chiropractic profession:

I hope that the profession can continue to provide the care to the public that is so unique to the profession.

I hope that the profession can deal with its weakest links and ensure that the public is protected by those who are elected to the role of "self governance" for the profession.

I hope that the public's knowledge of chiropractic grows by leaps and bounds year after year.

I hope that every chiropractor comes to the awareness that continuing educations involves knowledge of all things ranging from clinical practice to practice management to research on a global and invidual basis.

I hope that every chiroprator comes to the awareness that the guardians of the profession are its educational institutions, its professional associations, and its publications.

I hope that every chiropractor comes to the awareness that there are living legends involved in the chiropractic profession who should be acknowledged and who supported in their advancement of the interests of the profession.

back to you soon.

Here I go again!

2010-01-16T20:55:00.003-05:00

First I was young and innocent. I knew very little and was happy in my ignorance. In the 50's there was no internet; no VCRs; four or five channels on TV and I didn't bother reading the newspaper. Learning all the countries in Europe was about as much as I knew about the world.

Then I went through my teens and eventually by my 20's I knew everything. In fact my parents would ask me questions and when I asked why, they would retort: "Because you think you know everything. But that will end by the time you reach 30". Sometimes I would take a position and my mother would say: "You're right and the rest of the world is wrong". (said with a great deal of sarcasm).

My opinion now is that I know more and more about less and less until I am going to know everything about nothing! Anyway back to the topic of this note.

Keeping that in mind, on occassion I will read "Letters to the Editor" in any journal, magazine or newspaper. That is what has happened in the last few days when reading a chiropractic publication, and I am rather disappointed by what I read.

The first letter dealt with the concern of the writer with respect to the amount of articles that are written concerning the fraudulent practices in chiropractic as they relate to consulting companies. While I could not care less about the organizations and consultants that make money on advising practitioners as to how to practice properly, I am deeply disappointed that the tone of the letter was with respect to the sympathy that the author had for the miscreants. Having sympathy for the practitioner who commits fraud and brings disrespect to the profession is just beyond my understanding. The author uses the word "fair" in dealing with fraudsters is just unbelievable. Give me a break.

The second letter is even worse. It deals with the justification for treating a patient anytime anywhere. It would bring a smile to any party who prosecutes inappropriate behaviour. Being licensed in Alberta, Ontario, British Columbia, New York, or Michigan does not let you set up shop or even treat anyone in any other jurisdiction. A professional is obligated to abide by licensing requirements. The end does not justify the means. And as far as treating 400 to 600 patients a day, whatever happened to an examination, diagnosis, and plan of management -- 400 treatments in even a 14 hour day (14 hours x 60 minutes divided by 400 treatments - well, you do the math) and simply put-- Give me a break.

These two letters can be summed up simply with the phrase -- Deja Moo -- as in -- I have heard this bullshit before and it gives me a subluxation.

be well.

January 2010

2010-01-07T10:00:00.002-05:00

Ok -- so I don't post every two hours, every day, every week or for that matter every month. Sometimes the adage works: "It is better to keep your mouth shut and have people think you are stupid than to open your mouth and remove all doubt".

Besides, I have been busy. Two more articles on line with Dynamic Chiropractic Canada. The one title" "Can you Pass the Smell Test" I really wanted to simply call "The Stink Test" but I bow to the greater wisdom of those who buy their ink by the barrel. The next article was entitled "Self-Defence" but again changed to "The Dangers of Self-Defense". The next is in the works.

I also had the pleasure of donning the Santa Clause outfit and doing another event at the Chinese Mall in Markham, Ontario. I did a Polka -- at the Dance Studio -- my title is: "Least dedicated Most entertaining".

As far as New Years' Resolutions -- well I went on a diet over the holidays and gained 4 or 5 pounds, so that is over and done with. My office is now neat, tidy and uncluttered. My staff will take care of finishing off that Resolution. So the only one left is to smile more; ride my motorcycle more; and live more. I also promise to put more information on the blog -- but don't count on it.

Finally, for those of you who travel to this site looking for info - you have to appreciate how blogs work -- you have to dig deep and go back, back, back into the postings.

Be good and be well.
allan

November

2009-11-03T13:24:00.003-05:00

When thinking of November the first thing that comes to my mind is Remembrance Day. On May 21st of this year I participated in "Soldier for aDay" at CFB Kingston. I have posted pictures and made a few jokes about my lack of abilities -- particularly when falling from the "confidence" course to flat on my back from about 8 feet in the air.

While the day was fun, embarassing, tiring and filled with adventure -- it had a very serious overtone. I am in awe of each member of the military - whether he or she is at the front lines of the combat or behind a desk in Kingston, Ontario. Each one of them has dedicated themselves to a mission on behalf of the citizens of Canada. Whether you support a war or are committed to Canada being only on peace keeping missions -- the members of the military commit themselves to following orders and putting themselves in harms way. It is not something to take lightly, but until you have attempted to walk one foot - never mind one mile - in the shoes of a member of the military, you are unable to fully appreciate the totality of their commitment.

So, to each member of the military, whether in combat; away from home; or at a desk in an office -- on behalf of myself and my family - God Bless You and your families.

allan

INDEX - NOT

2009-09-11T14:53:00.002-04:00

For those of you who are either uninitiated (sp?); or just plain wonder -- the world of blogs does not particularly lend itself to indexing. In addition, for those of you who have taken an income tax or business course you will be familiar with the phrase "Last in -- First out" or something like that.

Anyway, the most recent post is what you will first see on the site -- to get to some of the articles dealing with associate arrangements; purchase and sale of practices; practice valuations -- you will have to scroll down and go to "previous posts" and continue and continue until you reach the proverbial heart of darkness. In the case of the article on purchase and sale of practices -- there are about 14 or so postings -- so start at the earliest postings and move forward. Or I suppose I could send you the consolidated version. ;-))))

End of Summer

2009-09-08T22:23:00.003-04:00

I am playing out my bucket list with major exuberance. For the summer I was able to: go to my first nascar race; play soldier for the day; travel to New York, Ottawa and Cleveland. Playing with my motorcycle via Dr. John and doing whatever comes naturally.

The fall schedule is already lining up with serious work, lectures, writing and some hearings and minimal dollar trials. Amazing to me how many people think I have retired because of my departure from teaching -- even more amazing that I don't miss the teaching because of what I perceive as a change in the attitude of students. Decades ago -- if a teacher missed a class the students would revolt and demand that the class be taught. Now it appears as if a class is an inconvenience to students. I had a new graduate in my office who was in my last class two years ago and after graduation went to a management course. She indicated that the material she paid for was not much different than what was taught at CMCC. I guess if you pay for it, it has more value. I suppose I could have made a few dollars selling information -- but alas, the road less taken.

Welcome to the beginning of September and a wonderful part of the year in Ontario, Canada.

The Smell Test - an editorial

2009-07-13T10:11:00.001-04:00

The Smell Test

The issue concerning when actions and conduct do not meet the “smell test” can be summed up much like in the trial in which the judge was asked to define pornography. His answer was: “I can’t define it, but I know it when I see it.”

From the moment that we each were able to communicate with the world, we had an innate appreciation of what was inherently right and what was wrong. Unfortunately it did not take too long for that understanding to be skewed by our interaction with other human beings. It starts at the television set, moves on to the computer and computer games and becomes entrenched once we are foisted upon the educational system starting at day care, kindergarten or grade one. It seems that simple things like the use of appropriate language, sharing and being polite fly out the window as soon we start interacting with others.

The relationship of individuals and communication between persons becomes even more of an ordeal when an individual enters into a profession. Unlike occupations which may allow for solitude and the ability to act without interaction and communication, most professions, as in the chiropractic profession, require the ability or, at a minimum, the necessity of being able to rationally, reasonably and politely communicate with patients.

We all appreciate our patients or clients. We appreciate their trust and their willingness to place their health, body and soul in our custody. But alas, not every interaction is going to be so pleasurable that the patient’s trust overcomes the “literal pain” that a practitioner has to experience in order to comply with their professional responsibilities. Having to “endure” a patient may well bring to mind that age old adage that “the key to success is sincerity and when you can fake sincerity you have it made”.

Patients are an interesting flock of individuals made up of all kinds of different characteristics, quirks and habits. Some may have chronic problems. Some have acute problems. Each one requires care. However, when in your office they are patients, not friends, not family, not customers, not anything other than patients. And that puts the doctor and the patient in an interesting venue.

The doctor will use of his or her education, experience and repertoire to illicit from the patient all of the information that is required to arrive at a conclusion as to what is required for the patient’s best interests. Of course, depending on what brought the patient into the doctor’s office, the patient may well desire a conclusion that is not supported by the objective testing of the doctor.

If a practitioner has not had a patient in his or her office that has no objective symptomotology; been treated for a complain that should have been resolved months ago; has changed doctors a multitude of times; or is on a disability claim for which the patient is in a state of non-compliance, then the practitioner has not been in practice long enough or is just plain lucky -- and none of us can be that lucky.

A chiropractor cannot become a party to a patient’s economic, social or litigious environment any more than he or she can become sexually involved with the patient. It is an inappropriate relationship that allows for an abuse of the doctor-patient relationship whether in the office or involving third parties such as insurance carriers. The fact that a patient seeks health care is not an excuse to provide care if none is warranted. While at the time of the “visit” it may seem reasonable to provide the care, and whether there is billing for such treatment or no billing, imagine having to review your patient’s file some 2 years hence and in hindsight indicate the necessity, and therefore the validity, of providing that treatment. If it was not justified when provided, it will seem even more inappropriate when looked at by third parties many years later.

A chiropractor is more than a technician. A chiropractor is required by law to assess, diagnosis, create a plan of management, obtain informed consent, refer when necessary, etc., etc., etc. I have no idea of the length, width, breadth or volume of tests that are associated with the profession of chiropractic and health care in general. They must obviously be extensive, and in some cases, are required as a minimum guide to the therapeutic necessity for treatment or non-treatment of a patient’s condition.

I have seen, heard and defended chiropractors who have dealt with patients who desire treatment, beg for treatment; pray for treatment and are grateful for the treatment. But in hindsight when revisited years later, the 160 treatments given without a reassessment; the 10 treatments of a patient over 6 weeks with a cost into the many thousands of dollars; the patient who sought out 6 doctors before finding one who would justify his complaint; or the doctor who had sex with the patient because the patient was lonely and wanted the comfort just don’t satisfy the definition of what a reasonable chiropractor would do in the circumstances. In other words the justification for the treatment does not satisfy the professional standards notwithstanding what the patient may want – whatever the reason for the treatment -- it just doesn’t pass the “smell test”.

MULTIPLE GUESSING

2009-03-28T10:53:00.002-04:00

The following is another example of an examination given to 3rd year students prior to their entering into a clinical environment. Good luck -- and remember -- this was given in 1996 and was in Ontario -- so in the words of so many lawyers -- "govern yourself accordingly". (and no apologies for the formatting -- this is hard enough to produce)

1.In order to establish negligence, the patient/plaintiff will have to:

a. prove the doctor touched him or her.
b. establish a lack of consent.
c. establish that an error took place.
d. prove the existence of a duty.
e. prove his or her costs.

2.A doctor cannot abandon a patient:

a. who doesn't pay the bill
b. who doesn't return for a visit
c. to whom no duty is owed
d. who sees another doctor
e. if he sends a letter stopping treatments

3.The Canadian Chiropractic Protective Association was established:

1.because of the lack of insurance coverage afforded to the chiropractors.
2.as a non-profit corporation.
3.not to provide insurance.
4.to oversee and manage claims for chiropractors.
5.to act in the best interest of the individual chiropractor.

Which of the following combination is most correct?

a. 1,2,3,4,5
b. 1,2,3,4
c. 1,4,5
d. 4,5
3. 1,2,4

4.The Canadian Chiropractic Protective Association has had to deal with problems such as:

1.chiropractors who are mischievous and devious.
2.chiropractors who have been alleged to have coerced patients into being adjusted.
3.uncooperative practitioners.
4. patients who will not settle law suits.

Which of the following combinations is most correct?

a. 1,2,3,4
b. 1,2,3
c. 3,4
d. 1,4
e. 2

5.With respect to a doctor's standard of care, which of the following statements are correct?

1.A doctor has no duty to warn a patient against high risk athletic endeavour, such as water-skiing.
2.A licensing board may change a doctor's duties and responsibilities.
3.Advertisements which claim specialized expertise may elevate a doctor's duty of care.
4.If a doctor fails to make an appropriate referral to a specialist, his treatment may be measured against the skill and knowledge of the specialist to whom he should have referred.
5.A doctor has no duty to warn a patient of driving hazards if the danger results from an obvious physical problem, such as restricted cervical rotation.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 2,4,5
c. 2,3,4
d. 2,3
e. 3,4

6.The creation of a doctor/patient relationship exits upon:

1. The doctor charging a fee.
2. The signing of an acknowledgement by the patient.
3. The doctor accepting the patient for care.
4. The doctor having the expertise to provide care to the patient.
5. The patient having contacted the doctor in his or her professional capacity.

Which of the following combinations is the most correct?

a. 1,2,3,4,5
b. 2,3,4,5
c. 3
d. 4
e. 5

7.Which may produce a doctor/patient relationship?

1.The doctor's telephone conversation with a former patient.
2.The doctor's response to a friend's questions about their health at a social function.
3.A receptionist giving out information in dealing with a prospective new patient.
4.Providing information on general health care at a lecture taking place at a public library.
5.Publishing an article on health care in a newspaper.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,2,3,4
c. 1,2,3
d. 1,2
e. 3

8.Professional liability coverage does not afford protection:

1.When the doctor is under the influence of drugs or alcohol.
2.When the doctor deviates from the standard of care in his locality.
3.When the doctor has failed to adequately train his staff.
4. If the doctor did not take x-rays.

Which of the following combinations is the most correct?

a. 1,2,3,4
b. 2,3
c. 1
d. 4
e. 1,4

9.With respect to chiropractic legal reports which of the following statements is correct?

1.The report should contain information concerning the accident, liability, examination, diagnosis and prognosis.
2.The cost of the report is the responsibility of the patient's insurance company.
3.The report is used to settle the issue between the parties.
4.The prior history of the patient is important to determine if the defendant caused the accident.
5.The cost of the treatment must be attached to the report, as an appendix.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,3,5
c. 2,4
d. 3,5
e. 5

10.When you are advised by a child/patient about a matter which constitutes abuse you should tell the child that:

a."I am required to report this matter."
b. "You were right in not keeping this a secret."
c. "Are you sure that this happened?"
d. "It's good that you are telling people."
e. "We will talk about this during your next appointment."

11.With respect to advertising, which of the following statements is correct?

1.The public interest in professional advertising requires that advertising in all media be truthful, clear, professional and responsible.
2.A chiropractor should not claim professional superiority.
3.A chiropractor should not make claims of guaranteed success.
4.Ultimately, advertising is a matter of professional ethics and responsibility, not law.
5.Advertising should not contain self-congratulatory statements.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,2,3,5
c. 1,2
d. 3,5
e. 1

12.With respect to "protection strategies" in office procedures, which of the following comments is correct?

1.A release of liability signed prior to treatment is enforceable.
2.As soon as a person comes into a doctor's office for an appointment, the doctor/patient relationship is established and the doctor cannot refuse to treat.
3.Fee discussions should be left to staff. The doctor should tell patients: "You'll have to discuss fees with our office manager. I'm only concerned about trying to correct your problem."
4.There is no need to ask for x-rays from a hospital emergency room if a doctor knows from previous experience he will receive no response.

Which of the following combinations is the most correct?

a. 1,2,3,4
b. 2,3,4
c. 1
d. 3,4
e. none of the above

13. Patient treatment records should be kept:

a.Six years after the tax return for that period was filed.
b. Two years after the patient injury.
c. Two years after the patient reaches majority.
d. Seven years.
e. forever.

14.The following situation is presented as a "res ipsa loquitur" (the facts speak for themselves) case:

a. A chiropractor's failure to diagnose lung cancer.
b. A patient's stroke after a cervical adjustment.
c. A D.C.'s misinterpretation of a patient's response to therapies leading to an improperly increased therapy schedule.
d. A chiropractor's failure to obtain a patient's informed consent when a risk of a particular adverse result was one in two million.
e. None of the above.

15.With respect to "protection strategies in securing informed consent" which of the following statement is correct?

1.If there is only a one-in-a-thousand chance of a complication occurring during treatment, it is not considered "material" and a doctor has no legal duty to advise the patient of its possibility to satisfy "informed consent" requirements.
2.If the patient signs an informed consent form, the doctor may still be liable for negligence.
3.Unless a patient specifically asks to have treatment risks explained to him, the doctor is under no duty to provide them. Once asked, however, he must reveal all material and inherent risks.
4.An informed consent must be obtained from a minor.
5.A patient gives his "implied consent" to a spinal adjustment when he goes to a doctor of chiropractic.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 2,3,4
c. 2
d. 2, 5
e. 5

SOMETHING A LITTLE DIFFERENT - testing one, two, three

2009-03-20T15:38:00.003-04:00

If you have been in practice for decades; if you just graduated from a health care program and are ready to get licensed; or you are just curious about what it takes to run an office -- check out the following which was an examination which I gave in 1997. AND for those of you who actually took the test - I apologize for any anxiety or panic attack that you might suffer.

CP 405 JURISPRUDENCE AND PRACTICE DEVELOPMENT

INSTRUCTOR: Allan M. Freedman
FINAL EXAMINATION
DATE: February 19, 1997

INSTRUCTIONS:

All questions must be answered.
All answers must be legible and may be in point form.
The value of questions appear to the left of the question.

1. List 4 ways in which a chiropractor may carry on practice.

4 marks

2. In the purchase of a chiropractic practice, list 4 examples of conditions which may be inserted in the Offer to Purchase.

4 marks

3. List two characteristics of a demand loan.

2 marks

4. List 5 things which should be covered in an associateship agreement.

5 marks

5. List one provision which would be inserted in an associateship agreement, but would not be inserted in a partnership agreement.

2 marks

6. List 8 factors relevant in considering the purchase of a chiropractic practice.

8 marks

7. In deciding a plan for the purposes of constructing a chiropractic office, list 5 factors to be considered.

5 marks

8. List 4 ways in which an accountant may assist a chiropractor.

4 marks

9. List 3 criteria necessary in order to be able to deduct business expenses.

3 marks

10. List 4 examples of capital expenses in a chiropractic practice.

4 marks

11. List 4 examples of operating expenses in a chiropractic practice.

4 marks

12. List 4 things which should be set out in a clinic policy statement of a chiropractic practice.

4 marks

13. List the 4 criteria which a chiropractor must establish in order to bill for OHIP services.

4 marks

14. List 5 types of insurance which a chiropractor should maintain for a chiropractic practice.

5 marks

15. What is a net net lease?

2 marks

16. What documentation should be provided to the bank prior to requesting a loan for a chiropractic office?

5 marks

17. What is the importance of setting out a partnership agreement in writing?

2 marks

18. What is the effect of a partnership agreement on 3rd parties dealing with the partnership?

2 marks

19. List 4 factors which are important in considering the leasing of space for a chiropractic practice?

4 marks

20. Under what circumstances may a contract be unenforceable?

2 marks

21. What is necessary to constitute a valid contract?

3 marks

22. What is the difference between fiscal year ends for a professional practice and the fiscal year ends for individuals?

2 marks

Contracts for chiropractors

2009-03-19T16:06:00.002-04:00

a 1991 set of lecture notes - they could have been from 1891 or 2008:

September 11, 1991
LECTURE TWO - CONTRACTS

Definition of a contract: A valid and operative contract may generally be defined as an agreement free from vitiating factors such as mistake or misrepresentation and constituted by the unconditional acceptance of an outstanding offer involving a reasonably precise set of terms, between two or more contractually competent parties who intend to create mutual and reciprocal rights and duties that may be the subject of judicial sanction if they are expressed in any required form, are free from the taint of illegality or immorality, and are not subsequently discharged by law, by agreement or breach or by sufficient supervening circumstances.

A contract is an agreement between two parties.

Contract law permeates all parts of a chiropractic practice from the purchase of equipment, lending agreements, providing of services and receiving payments.

All contracts are promises but not all promises turn into contracts. ie. I promise to buy your car. I promise to buy your practice. Both parties in a contract will have made a promise to each other.

Agreement to enter into an agreement is not enforceable.

This course is not intended to teach you how to either write a contract or determine the validity of a contract. We are more concerned about become familiar with the elements of a contractual arrangement in order to determine how a contractual obligation arises and under what circumstances the obligations come to an end.

It is amazing how many people execute agreements without reading or understanding the obligations to which they have become contractually bound. Not reading or understanding a contract is irrelevant to being bound to the contract. ie. purchasing equipment, services, lending or even real estate.

Do not presume that what is put down on paper is fair to both sides of a transaction.

A lawyer prepares a contract on behalf of a client, not on behalf of both parties to a contract.

What is advantageous to one party may not be advantageous to the other party.

Contracts do not have to be fair to be enforceable in court. The contract may actually be very disadvantageous to one party in a contract and yet still be enforceable.

What does it take to have a valid contract?
offer and acceptance
consideration
competent parties
genuine consent
legal purpose

A contract is an agreement enforceable at law. Not all agreements are legally binding. The parties must intend to assume legal rights and duties as opposed to engagements of a social nature. ie. missing a theatre party.

The contractual intention does not have to be expressed in a formal way. The conduct of the parties may be enough to prove the existence of a contract. ie. entering into a restaurant
Even if the parties intend to enter into a contract it may still be unenforceable if it does not comply with legal requirements involving a)form or b)the necessary elements of validity.

FORMS OF CONTRACT

Specialty Contracts: one that must be "in writing and under seal". Must comply with the Statute of Frauds, ie. guarantees and purchase of real estate, any agreement not to be performed within one year from its creation (partnership agreement).

The writing of the contract may involve only a written memorandum ie. associateship agreement with memo vs. contract

Part performance may be a method of avoiding the obligation for a contract to be in writing.

OFFER AND ACCEPTANCE

Is it an inventation or is it an offer to sell. Why is it important? Carbolic Smoke Ball case.

There must be an intention.
If a chiropractor says in exasperation in a chiropractic meeting: "I would sell my practice for ten thousand dollars right this minute if I could get it?" If someone in the audience says you've got a deal is there a contract? Remember it must be enforceable.

The offer and acceptance must be communicated. An offer must be made and the offer must be accepted.

There are circumstances where acceptance does not have to be communicated. ie. rewards and contests.

In some cases, conduct will prove the acceptance of all of the terms of the contract, parking stubs or admission ticket to sports events, with certain exceptions

An offer will lapse and cannot be accepted if either the person who makes the offer retracts it before it is accepted, the offer dies, or it not accepted within the time specified or if no time is specified then within a reasonable time, ie. purchasing commodities such as food.

The offer must be accepted in the manner stipulated or indicated in the offer. If an offer requires acceptance by mail then no other method of acceptance may be acceptable.

Method of acceptance is important because it will determine whether there is in fact a contract. ie. if the contract expressly or impliedly requires acceptance is to be by mail then the contract is closed as soon as the letter of acceptance is placed in the mail, even though there is some delay.

If the method of acceptance is neither expressed nor implied in the offer the acceptance may be made by any method ie mail, telegram, fax or telephone but the acceptance is not effective until it is actually received.

A refusal of an offer causes it to terminate and cannot be accepted unless the offer is repeated., ie. sell my practice for 100,000. I'll buy it for 75,000.00. No. O.K then I'll buy it for 100,000.00. However, a mere inquiry as to whether the terms of the offer can be changed is not considered a counter offer or a refusal.

An offer may be revoked or withdrawn at any time before it is accepted. To be legally withdrawn the revocation must reach the person to whom the offer was made before that person's acceptance has become effective.

CONSIDERATION

A contract requires consideration to make it valid. Consideration has been defined as "some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by another."

If a person gratuitously promises to supply his services, the person could not be held responsible for a breach of contract but could be held liable for damages for negligence if the work was not done properly.

In charitable matters pledges are generally unenforceable unless specific consideration can be shown for the promised subscription ie. the building of a room in a hospital.

Adequacy of Consideration: Consideration must be of some value in the eyes of the law, but it need not be adequate. ie stamp collector or baseball collectors or chiropractic practices for sale.
Friendship, gratitude, natural love and affection are not valuable consideration and will not make a promise legally binding.

Past Consideration. Past consideration is not legally enforceable since promises of this nature are really gratuitous.

Forbearance may be proper consideration. If you do not sue me then I will provide some other service for you.

Illegal Consideration: ie. a promise to bribe a public official, an agreement to give false evidence

COMPETENT PARTIES

Generally the law regards a sane, sober adult as being capable of managing his or her own affairs and therefore able to make contracts of a binding nature. However some persons are regarded as less than fully capable and their ability to make contracts is restricted for their own protection: The major classes of persons who enjoy this protection are:

1 Minors:
2 Mentally incompetents
3. Intoxicated persons ie. drugs or alcohol

Should not be allowed to be taken advantage of. Such contracts are generally voidable. Voidable contracts are contracts which are valid and enforceable but may be accepted or avoided by one or two of the parties. The person to be protected may elect to treat the contract as either binding or not binding as the person wishes.

1. Minors: divide into four types of contracts:
Valid Contracts: apprenticeships and contracts of services for the infant's benefit
Void Contracts: clearly prejudicial to the infant or detrimental ie. guarantees or releases of claims for injuries or compensation
Voidable Contracts: may either accept or avoid the contract. A voidable contract can be divided into two classes:

a. A contract which is binding on the infant unless he takes some step to repudiate the contract during his or her infancy or within a reasonable time after reaching his or her majority. The are contracts involving acquisitions of an interest in property of a permanent nature with a continuing obligation, ie. leases or purchases of shares in companies

b. contracts which are not binding on the infant unless ratified after he or she reaches majority. These are the majority of the contracts for things like purchase of cars, bicycles, and personal items

The effect of avoidance does not indicate that the infant will be reimbursed for any consideration already expended. The exception is the contract in which no benefit has been given the infant.
Minors must pay for necessities of life ie. food and shelter with the proviso that these are suitable to the infant's circumstances or "station in life" and are needed at the time of the purchase.

Consideration must be fair.

The situation will not change because an infant lied about his or her age.

Parents under Federal and Provincial Legislation may be responsible for providing the necessities of life for a minor or someone in need of protection

A child may be the agent of the parent. This would be considered an agency relationship and could be created by express or implied approval of the relationship to third parties. Ie. advising a storekeeper that the child can buy anything he or she wants. or by implication when a child from time to time makes purchases in a store on a parent's account.

Intoxicated Parties:

A contract is voidable if it is established that:

1.the condition of intoxication or insanity made the person incapable of understanding what he was doing, and

2.the other contracting party knew of the condition

In any event such persons will be responsible for the necessities of life.

If such a person elects to avoid a contract, he or she must repudiate it within a reasonable time after recovering from his incapacity and ascertaining what he or she has done.

Other parties having Limited powers to contract:

Corporations: it is a creature of statute and is limited by legislature and by the by-laws of the corporation ie. mining companies, banks, charitable institutions

GENUINE CONSENT

Consent is not genuine if it was obtained through misrepresentation, either innocent or fraudulent, or by means of undue influence or duress. May not be real if there was a mistake about some fundamental condition of the contract, ie. 1988 car instead of 1990 car.

Misrepresentation: A false statement of a material fact. A material fact is one that induces or brings about a contract. ie. 1988 instead of 1988 not that it has fuzzy dice unless the parties agree that it is material. Can be an innocent misrepresentation if the party thinks it is true and it was said without intent to deceive, or can be fraudulent if it was intended to deceive either deliberately or with reckless regard for the truth.

For innocent misrepresentation then rescission of the contract, and put the parties back in the position they would have been in if the contract had not been made. Rescission could be lost and then must be dealt with by damages.

For fraudulent misrepresentation then could be a tort. Could claim either rescission, damages or both.

Undue Influence: The improper use of any power exercised over the mind of a contracting party so that consent is not voluntary. This would create a voidable contract. Person alleging the undue influence must allege and prove the undue influence. ie. wife and husband. Independent legal advice.

Duress: Some unlawful pressure imposed upon a person which compels him or her to enter into an agreement against his or her will ie. violence. Again, voidable and must be proven.
Mistake: mutual mistake voids a contract since it was not supposed to happen.

CAVEAT EMPTOR: a bad bargain does not void the contract.

LEGAL PURPOSE

A contract is not enforceable it its object is contrary to established law (illegal) or against public policy. Otherwise people may contract as to anything.

A contract to commit a crime or perform a tortious act is illegal and void.

Some provincial and municipal laws require certain professional people and tradespeople to be licenced to pursue their profession or trade. If they are unlicenced then such contracts would be unenforceable at law.

Interest Act

Gambling Debts

Consumer Protection

Non-competition agreements: contracts in restraint of trade

need consideration and cannot be contrary to public policy (ie reasonable)

Contracts in restraint of competition

contracts in restraint of marriage

ASSIGNMENT OF CONTRACT

Generally a person may transfer his or her rights under a contract but may not assign his or her obligations without the consent of the other party to the contract.

A contract may allow or restrict the assignment of rights under the contract. It is not illegal to do so.

To assign rights under the contract:

1.must be in writing

2.the assignees must give the debtor written notice of the assignment otherwise payment to the original creditor by the debtor would be valid

3.the assignment must not increase the debtor's burden or diminish his or her rights and remedies.

4.the assignee acquires the same rights subject to the same defences as the original creditor had.
Assignment of obligations: Can be done with the consent of the other party. Original party remains liable unless specifically released by writing. ie. assignment of lease.

Assignment of Accounts Receivable: billing less monies received represent accounts receivable. Used for security to the bank.

Assignment in Bankruptcy.

LIMITATION OF ACTIONS

Statutory limitation with respect to the time in which action might be taken. Exists in all law suits., ie. negligence, highway traffic law

Six year for simple contract from when the debt arose or it begins to run when entitled to bring action but may change with part payment, written promise to pay or even a written acknowledgment of the debt to start new limitation period. NOW IN ONTARIO -- TWO YEARS

BREACH OF CONTRACT

may be minor or a fundamental condition or may be a breach of the contract as a whole. The remedy available for a breach may depend upon the nature of the default.

If there is a complete breach then the other party is discharged from the contract and may make a claim for damages.

If the contract has been substantially completed and there is a breach of a minor nature then the other party will not be discharged but will be entitled to damages.

Could be liquidated damages where the parties have agreed to the amount of damages if there is a breach. This must not be a penalty provision.

Mitigation: The party who has suffered the loss must take reasonable steps to avoid any unnecessary loss.

Specific Performance: When damages would not be an adequate remedy, specific performance will be enforced if the court can compel the defaulting party to perform the contract. No personal service or if property has disappeared. However, the remedy for breach of contract for the sale of goods is usually money damages. ie. personal services
Injunction: force a person to do something or not continue to do something.

DISCHARGE OF CONTRACT

Discharge by performance.
Discharge by mutual agreement.
Discharge by impossibility of performance:
1. lose licence
2. fire, earthquake
3. incapacity relating to personal service
4. change in law ie. war materials

PARTIES
OBJECT
CONSENSUS
ABILITY
MISTAKE
INTENTION
CONDITIONS SUBSEQUENT AND PRECEDENT
LIMITATIONS ON CONTRACTS: matrimonial homes cannot be dealt with except in accordance with the Family Law Act

Problems with verbal vs. written contracts:
memory fault
proof

Contracts are not necessarily important for the people who are entering into them. They become important when there is a breach of the agreement or people who want out of the agreement.

Option agreement

Interpretation Rules: Contra Preferendum

Conditions, Representations, warranties, guarantees: difference and effect

Tendering

Exculpatory provisions which release a party from liability

Concept of an Offer to Purchase and Offer to Lease

Consesus Ad idem

Collateral Contracts

A PROMISE IS A PROMISE

2009-03-19T16:02:00.002-04:00

After I had finished the 32nd and last year of full time - part time teaching I had indicated that I would be willing to start posting my lecture notes on the internet. It is a somewhat burdensome task and one that required serious consideration. However..... after giving the matter full consideration I am prepared to put the blog to work.

I have no idea if this is going to be of any value -- I suppose if I had the desire I could just wordsmith all the lecture notes and create a text. Not going to happen!

So here it is -- the first set of notes relate to a lecture on Contracts that took place in 1991 - and still applicable. At least once a week I will find another "non-scripted set of notes" - many of them taken from student note service and given just a very cursory glance with respect to spelling, grammar and syntax.

If they are of any help -- great. I will watch the blog counter to determine whether I am simply talking to myself -- which is not unusual.

be well
allan

Time

2009-03-13T14:58:00.001-04:00

Tick Tock, Tick Tock

I once had the opportunity of experiencing a hearing involving an Estate that took about 4 years to resolve. The hearing would start, go on for a couple of days and then be delayed because of adjournments, motions, etc. etc. By the time it came to final submissions I had approximatley six boxes of documents that had been collected and/or referred to as exhibits. It did not help that the individual on the other side of the matter was a retired judge and he had very little at stake in terms of the costs of the hearing.

At the end of the hearing, the other individual went through all of the documents and summed up his position. When my time came I stood up, straightened out my barrister’s robes, tighted my “power belt” (I had suffered another injury to my back and besides chiropractic care, I had been prescribed the use of the power belt – every time I stood up it looked as though I was tightening a gun belt!), looked at the massive amount of documents spread over the counsel table and then had an epithany. I decided to ignore the documents.

I began by indicating to His Honour that we are all born with really only one thing in common. We might have different colour hair (or none at all), be of different colour tones, have different colour eyes, different sizes, weights, genders but we all have one thing in common – we all, each one of us, has only 24 hours in a day, and no one should be able to take that away from us. We had just spent days, weeks, months and years involved in a matter that could have been resolved in two to three days and it was unconsionable that the entire court system was being held hostage to deal with a matter that involved so little but cost so much. Not only was the Judge interested in the summation, but I actually guarnered the attention of the elderly clerks who assist in the proceedings but are gnerally bored to tears. At the end of the day, I was personally fulfilled, the retired judge was upset and the court exercised its discretion in recognizing that the matter had been dragged on for far too long.

The moral of the story is simple. Guard your time and use it wisely. And like any other asset or investment make sure that you control it and it is not wasted foolishly in the hands of others.

elfs

2009-03-12T05:29:00.001-04:00

My 2009 blog postings seem to appear and then disappear -- must be an "X File".

Almost Done

2008-12-14T20:35:00.002-05:00

I survived the Saturday afternoon event doing a Santa Clause stint at a Chinese Mall and teaching a line dance. Then Sunday morning a four hour presentation involving independent examinations. Now, once I get past a hearing on Wednesday, I have to finish a chapter on Legal Issues in the Alternative Treatment of Cancer. Deadline is Saturday and the clock is ticking. Interesting thing about "pressure" -- when you think about it - most machines and people work under great pressure -- ie. water pressure, oil pressure, work pressure!

Logic

2008-12-12T10:02:00.003-05:00

With respect to the continuing saga of the bump on the head -- actually it was a "huge" cut to my forehead. Since I concluded that there is nobody to sue -- I am now blaming the entire event on the full moon. However, I have learned another example of the difference between being a pessimist and being an optimist.

In this case, a pessimist would say that the bandaid on my forehead is indicative of an injury. An optimist would call it a bullseye!

2008-12-11T15:56:00.003-05:00

My second article in Dynamic Chiropractic Canada has been posted -- find the link set out below. Not quite as irreverent (as compared to irrelevant) as the first -- I must be mellowing.

By the by, I made the mistake of getting bopped on the noggin yesterday -- once the bleeding stops I should be fine -- but I mentioned to someone that I might be considered an invalid and he proceeded to remind me that the term might be appropriate for me if you change the emphasis on certain letters in the word "invalid" and then change the translation to "null and void" as in "invalid". You figure it out -- my head hurts!!!

results

2008-12-03T11:48:00.006-05:00

So I did the dancing and awaited the results. Since it was a Pro-Am Tournament all the old adages apply --ie. "no pain, no gain" and all of the other wonderful sayings including reminding participants of sportsmanship; and it is not whether you win or lose it is how you play the game, etc., etc. I got the results -- 34 dances - 34 first place standings. (there were about 320 dance competitions from 9:45 am to 5:00 pm) I have asked for a recount and I am very nervous that since I had to use a vicks inhaler for my sinuses that there could be a request for drug testing. Seems that some people are questioning the sanity of the judges.

I am continuing to decorate Santa's sleigh for next weeks charity event. Pics to follow.

Have a great day.

Journeys

2008-12-01T13:18:00.002-05:00

You just never know where life will take you. One of the lessons that I have learned is that you do not try and swim upstream in a torrential current -- you will just waste a lot of energy, time and enjoyment. Going with the flow can be a lot of fun. However, that statement should not be interpreted to mean that you should not take the road less travelled. Just hop on the bus and see the world.

In June, 2007 I started my wife (and me) on ballroom dance lessons (Arthur Murray - Thornhill School no less) as an anniversary gift. She has excelled and I have just started to untangle by two left feet. I have also just started to be able to count the beats of a song and just about know when to start dancing. ;-)

This past weekend I participated in a Pro-Am Competition at the Royal York Hotel in Toronto. Thirty-four dances comprising (believe it or not) the waltz, tango, fox trot, rhumba, salsa, merangie, swing, cha cha, samba, and hustle. I didn't step on anyone's toes and I didn't fall on my face.

So, I climbed (or crawled) up the hill and got to the top. It was fun and an accomplishment that I would not even have thought about two years ago. I was not swimming upstream and I was not following the crowd -- I merely got on the right bicycle, peddled like the dickens, sweated and worked and went for a great ride!

My advice of the day -- pick a journey and go for the ride -- it will not always be easy but at the end of the journey the view from the hill is fabulous.

!!@###**!!

2008-11-23T11:56:00.003-05:00

Want to know what is going in health care in Ontario -- check out the following site -- you can scrounge around to see what is going to be happening to a number of professions (funny thing -- no mention of chiropractic) -- and then do whatever you do to calm down. Have a great day!

http://www.hprac.org/en/projects/Interprofessional_Collaboration.asp

2008-11-18T09:44:00.003-05:00

Okay, okay, okay -- I know that I haven't written or posted anything for a little while - but it is not like I haven't been busy. I have had to do a "privacy" presentation. I would tell you about it -- but unfortunately it's private.

I had to do another TBL (team based learning). If you have never participated in a learning session based upon a TBL then you haven't had the pleasure of learning in a format which can actually be informative and active. Much better than a lecture. I had to do another article for DC Canada (one day I will learn how to say no, no, no). Then there are the lost weekends -- lectures, conferences, meetings in Calgary and New Orleans. But I am back in town and getting ready for a ballroom dancing competition (really).

So after I finish doing my chapter on Legal Issues in the Alternative Treatment of Cancer for a new text, I can get back to my diatribes on my Blog and again start posting pictures and generally being a "troller".

have a great day.

ramblings and rantings

2008-10-10T14:13:00.002-04:00

I was asked whether there really, really was an Apology Act in Ontario. Yes, Virginia, while it has not yet received Royal Assent, it is on its way. And it is sort of relevant to the world, and it is a shame that it is necessary, somewhat like good samaritan laws.

I can't believe that I am going to mention the Toronto Maple Leafs, but here goes. There is no justice in the world. The Leafs are, as this is being written, unbeaten in the 2008-2009 season and are only in third place -- there is no justice. Even worse, "what do the Toronto Maple Leafs and the Titanic have in common? They both look good until they hit the ice." Go Leafs Go.

When is an Apology an Apology or not an Apology?

2008-10-07T17:09:00.001-04:00

An Act respecting apologies

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

1. In this Act,

"apology" means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate; ("excuses")

"court" includes a tribunal, an arbitrator and any other person who is acting in a judicial or quasi-judicial capacity. ("tribunal")

Effect of apology on liability

2. (1) An apology made by or on behalf of a person in connection with any matter,
(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not constitute an acknowledgment of liability in respect of a claim in relation to that matter for the purposes of section 13 of the Limitations Act, 2002 ;

(c) does not, despite any wording to the contrary in any contract of insurance and despite any other enactment or law, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available to the person in connection with that matter; and

(d) must not be taken into account in any determination of fault or liability in connection with that matter.

Evidence of apology not admissible in court

(2) Despite any other enactment or law, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

Commencement

3. This Act comes into force on the day it receives Royal Assent.
Short title

4. The short title of this Act is the Apology Act, 2008 .

EXPLANATORY NOTE

The Bill provides that an apology made by or on behalf of a person in relation to any civil matter does not constitute an admission of fault or liability by the person or an acknowledgment of liability in respect of a claim in relation to the matter, does not affect the insurance coverage available to the person making the apology and is not admissible in any judicial or quasi-judicial civil proceeding.

2008-10-05T20:34:00.002-04:00

STEPHEN WRIGHT'S DEADPAN HUMOR
Courtesy of The Freeman Institute

"Dealing With People Who Drive You Crazy!"®

Here are some Stephen Wright quotes:

Someone sent me a postcard picture of the earth. On the back it said, "Wish you were here."

Last night I played a blank tape at full blast. The mime next door went nuts.

If a person with multiple personalities threatens suicide, is that considered a hostage situation?

Just think how much deeper the ocean would be if sponges didn't live there.

If a cow laughed, would milk come out her nose?

Whatever happened to preparations A through G?

Why do they sterilize needles for lethal injections?

Why don't they just make mouse-flavored cat food?

If it's tourist season, why can't we shoot them?

So, what's the speed of dark?

Isn't Disney World a people trap operated by a mouse?

How come abbreviated is such a long word?

If olive oil comes from olives, where does baby oil come from?

I went for a walk last night and my kids asked me how long I'd be gone. I said, "The whole time."

After eating, do amphibians need to wait an hour before getting OUT of the water?

If you're sending someone some Styrofoam, what do you pack it in?

I just got skylights put in my place. The people who live above me are furious.

Is it true that cannibals don't eat clowns because they taste funny?

Whose cruel idea was it for the word "lisp" to have an "s" in it?

Since light travels faster than sound, isn't that why some people appear bright until you hear them speak?

If it's zero degrees outside today and it's supposed to be twice as cold tomorrow, how cold is it going to be?

Rantings and Ravings

2008-10-05T11:44:00.003-04:00

October 5th -- My motorcycle is in the shop for some TLC and since I would otherwise be riding on a Sunday -- I will take out my frustrations on the internet. So here goes:

Questions with no answers?:

1. Why does a chiropractor have to obtain "informed consent" when dealing with orthotics? What is with that -- anyone ever die from fallen arches?

2. Isn't it time that everyone started realizing that there is a huge difference between ensuring knowledge of what is taking place and the specifics of informed consent as in -- doctors have to make sure that patients know what it is going to cost for treatment but that knowledge is different than dealing with risk.

3. Use it or lose it -- abuse it and lose it -- seems to apply to chiropractic use of orthotics and x-rays to more than any other profession.

4. How can practitioners not know the difference between hiring an employee and a consultant when Canada Revenue Agency and everyone else seems to know the difference?

5. You can be an associate and you can be an independent contractor and you can even be both since they are the same!

6. History taking, record keeping, diagnosis and plan of management is not something that chiropractic colleges require from student/interns to keep them busy. They are professional responsibilities.

7. Don't have malpractice insurance -- shame, shame, shame!!

8. You can buy malpractice insurance -- does it come with an undertaking to protect the profession and spend money, time, energy and expertise to deal with the BIG PICTURE. There is only one organization that gives as well as takes.

9. If "IT" doesn't pass the stink test -- it is only a matter of time until (you fill in the blank)!!

10. for whatever reason, my short tenure of doing articles for DC Canada appears over -- so my irreverance, sarcasm, and task of irritating everyone equally will have to be presented on this Blog.

be happy and be well
allan

More of List

2008-09-30T21:22:00.003-04:00

things I have done and seen

57 white water rafting
58 London, England
59 a weekend on a boat house
60 Florence, Italy
61 spending a day with Gordie Howe
62 preparing a power point presentation
63 Geneva, Switzerland and Lake Geneva Wisconsin
64 being the only passenger on a Piper Navaho
65 one bar mitzvah, two bar mitzvah, three bar mitzvah
66 a henna tattoo “born to sue”
67 Oslo, Norway
68 cross country skiing
69 ’ 65 triumph spitfire
70 14 weddings in 11 months
71 helicopters landing on a ship
72 Hamburg, Germany
73 go karting
74 a magic trick that works
75 Costa Rica
76 rollerblading
77 ’ 68 mustang and an 8 track tape deck
78 Paris, France
79 gondola ride
80 a convocation speech on two hours notice

Comment of the Day

2008-09-30T21:10:00.001-04:00

The issue of the day is the same old same old. For those of you who have not yet been educated on the principle of DEJA MOO -- think of Déjà Vu (as in, I think I have done or seen this before). In the case of Deja Moo – it is -- I have heard or seen this “BS” before.

That being the case, how many times do doctors have to be told to watch what goes on in their offices. If it is the doctor/owner – make sure that what leaves the office is correct. The proverbial “buck” stops at your desk. The latest case involves what might be a fraud on the part of an associate who is providing insurance claims for services that have not been rendered in order to provide the patient with free uninsured services. While the owner did not conduct the fraud – if it is his or her name on the receipts then the issue is very problematic.

If is a case of the associate not knowing what is going on in an office and finding out that the owner whether a doctor or non-professional owner is providing inappropriate billings then the associate must take immediate steps to ensure that they demand that the appropriate billings be rectified and to most likely terminate his or her relationship with the clinic.

In any event, “when you sleep with dogs, you will surely wake up with fleas.”

Purchase and Sale -- the end

2008-09-25T10:30:00.002-04:00

After having done all that there is to determine whether a purchase or sale should take place, it is important that the parties ensure that the completion of the transaction is closed in accordance to professional responsibilities (whatever chiropractic rules, regulations, standards, laws apply) and in accordance with the usual and customary business practices.

There are procedures for completion of a transaction, and having regard to the number of parties involved in a purchase and sale, the closing must take place with the assistance of a lawyer. For a vendor, the work for closing can involve:

contacting the landlord
dealing with the landlord's lawyer
preparation of an assignment of lease
preparation of a bulk sales declaration
preparation of a bill of sale
preparation of undertakings to do certain things after closing
preparation of the statement of various adjustments relating to prepaid costs
preparation of a non-competition and/or non-solicitation agreement
acknowledgment by the employees
dealing with any bank financing.
dealing with any equipment leases
dealing with telephone and websites
attending to the signing of the documentation
forwarding the documentation, receiving and disbursing funds
etc. etc. etc.

For the purchaser, the lawyer will deal with:

searches for liens, etc.
preparation of the affidavit relating to the bulk sales
reviewing the lease and documentation
dealing with bank financing
reviewing the closing documentation
receiving and disbursing funds
filing the closing documentation
etc etc etc.

When all is said and done, at the end of the day, the parties should both be satisfied that the practice has been properly transferred from the vendor to purchaser. It is in the interests of all of the parties to ensure that the transfer of the practice has been done in a proper fashion. This includes not only the vendor and the purchaser, but the patients, employees, and the profession because a proper transfer of a practice is important to the integrity of the profession.

So whether you are starting into a new venture and buying a practice or retiring from practice, good luck and congratulations.

More things I have done and glad to have done them.

2008-09-18T16:55:00.005-04:00

excuse the spelling!

41. Las Vegas – but not too often

42. Cliffs of Dover

43. measuring once and having to cut twice

44. watching Les Miserables more than once; more than twice

45. Midnight Mass

46. a cigar and a hammock

47. dancing the hustle 25 years later

48. walking a dog

49. reading Freakanomics

50. singing along to the 60’s and 70’s

51. singing the Canadian and American national anthems when you don’t have to

52. the Rock of Gibraltor from the deck of a ship

53. Law and Order episodes

54. being silly

55. making someone laugh

56. singing Danny Boy

Purchase and Sale - Posting 13 - second to last

2008-09-18T16:55:00.003-04:00

7. The Agreement should be subject to, and completed in accordance with, the "bulk sales" legislation of the jurisdiction in which the transaction is completed. This legislation requires that the Vendor complete a statutory declaration indicating that there are no secured or unsecured creditors of the "business". If the creditors are not satisfied at the closing of the transaction and the declaration is not provided on closing, the transaction may be set aside by the creditors of the practice and the Purchaser may find herself or himself in the position of having to deal with the prior debts of the Vendor.

8. The purchaser will likely expect the Vendor to represent and warrant that the clinic premises are zoned for usage as health care facilities and, in addition, that there are no notices of municipal deficiencies or outstanding work orders affecting the said clinic premises and its uses which might affect the ability of the Purchaser to carry on practice at the clinic premises.

9. Since the purchase price is inevitably established based upon billings of the practice as sustainable after the closing, the Purchaser requirement to complete the transaction is generally conditional upon the Vendor having continued to operate the practice in a normal and customary fashion from the execution of the Agreement until closing. In addition, the Parties generally agree that at the time of closing there will not be any issues outstanding which would affect the Purchaser's ability to maintain the practice in its usual and customary operation. The Purchaser may also require that the Vendor maintain office supplies in the normal and customary quantity for the operation of the Vendor=s practice until the closing date.

10. An Agreement usually provides that the Parties will be liable for and shall pay all federal and provincial sales taxes which may be their respective responsibility in connection with the transfer of the purchased assets by the Vendor to the Purchaser. Subject to any legislative amendment, the purchase of a chiropractic practice is not generally subject to G.S.T.

11. The preparation of the documents necessary to transfer title to the assets are usually prepared by the Vendor at his or her own expense. In addition, it will be expected by the Purchaser that the Vendor will on the day of closing provide a statutory declaration confirming the representations and warranties contained in this Agreement. The completion of the documentation is crucial to ensuring that the Parties fully understand their rights and obligations, and in particular, the terms relating to the non-competition and non-solicitation agreements.

12. If there are any outstanding obligations to be taken care of by the Purchaser and/or Vendor an undertaking to complete the obligations will be required to be executed by the relevant party prior to the completion of the transaction. Undertakings might include the registration of a release of any lien on any of the assets being transferred to the Purchaser together with the payment of any final accounts owed by the Vendor such as utility payments, or accounts.

13. As part of the transfer of the practice, the Purchaser will acquire all of the interest of the Vendor in the name of the Clinic and the Purchaser will generally be entitled to use the present name of the Clinic. In order to facilitate the transfer of the name, the Vendor will file a notice of discontinuance of the business name for the location of the Clinic with the appropriate government registry. In the case of a Vendor who is using his or her personal name as the practice name, the Purchaser should ensure that he or she conforms to the regulatory boards requirements relating to the use of a name other than that of a practitioner. As an example, while it may be acceptable for Dr. Jones to carry on practice as Main Street Chiropractic Clinic it may be improper for Dr. Jones to carry on practice as Smith Chiropractic Clinic. It is imperative, and may be a statutory requirement of the province or state in which the practice is located, to register the name of the practice after the acquisition of the practice.

14. The parties will usually acknowledge in the agreement that there are no representations, warranties, collateral agreements or conditions affecting the agreement other than those which are set out in the agreement. As such, it is important that the parties address any representations which they may find necessary such as representations relating to the operation of the practice. It is by virtue of this provision that the expression "caveat emptor" or "let the buyer beware" becomes a crucial part of the transaction.

15. If the premises in which the practice is located is the subject of a lease arrangement, the vendor will be required to provide the consent of the landlord to an assignment of the lease for the premises, together with an acknowledgement by the landlord that the lease is in good standing.

16. The purchaser may request that he or she be allowed, after the execution of the agreement, to attend at the premises to observe the vendor in all aspect of the practice. The vendor will want to ensure that any observation by the purchaser will not in any way whatsoever impede the vendor in practice or the goodwill of the practice. In some cases, the vendor may not want the purchaser attending at the premises until all conditions have been satisfied or waived by the parties. It would appear that this would be a prudent act since any attendance by a purchaser can be disruptive in some fashion to the practice. In the event that the conditions are not met and the transaction is aborted, and a subsequent purchaser must be found, the environment of the practice may be interfered with in a detrimental fashion. It would therefore be prudent to ensure that a sale of a practice not become a matter of public knowledge until the completion of the transaction is assured and imminent.

It will generally be a term of the agreement that the vendor will, at the time of closing, terminate all employees of the practice. The vendor will be required to pay all compensation to which the employees will be entitled to the date of closing including salaries, statutory deductions and vacation pay. The vendor will be required to substantiate to the purchaser that the monies have been paid to the employees. The purchaser will acknowledge that he or she will be a successor employer to the business being acquired herein. The implication of a "successor business" is that the employees are deemed to have commenced their employment from the day they started working at the clinic. This issue can be problematic if the employee had been at the clinic for example for a period of 5 years prior to the transfer of the practice. If the employee is terminated without cause by the purchaser one year after closing, the employee might claim entitlement to compensation for an amount resulting from six years of employment. It is unlikely that the purchaser will be able to overcome this predicament and as a result the purchaser should ensure that he or she is satisfied with any employee who will be remaining with the practice.

In addition, the purchaser will require that the vendor will provide on closing an acknowledgement by the employees that they have no outstanding issues in existence with the vendor or purchaser for which any action might be taken with respect to their past or continued employment at the Clinic. Finally, the vendor will agree to be responsible for all compensation that might otherwise be payable to the date of closing and will, on closing, provide to the purchaser an indemnification with respect to any compensation which may be required to be paid by the purchaser after closing for matters arising prior to closing. Again, this may not, however, be enough to deal with a claim for compensation relating to wrongful dismiss for a period of time prior to the purchase of the practice.

Purchase and Sale - Posting 12

2008-09-16T20:32:00.003-04:00

AF: Having concluded the discussion on the "value of a practice", the issues concerning the sale and purchase of a professional practice left to be dealt with involve the following:

6. the terms of the Agreement
7. the execution of the Agreement
8. the completion of a due diligence investigation of a practice
9. the completion of the transaction
10. issues arising after the completion of the transaction

TERMS OF THE AGREEMENT:

We have already reviewed the parties to the Agreement; the price to be paid for the practice; and the assets to be included in the transaction. The following are some of the additional provisions that are customarily dealt with in the sale and purchase of a chiropractic practice.

1. Deposits: Obviously the Vendor will desire a large deposit and the Purchaser will want to pay a minimum deposit. It may be appropriate for multiple deposits to be paid as in the case of a certain amount paid with the execution of the Agreement with a further deposit paid after the expiration of any conditions contained in the Agreement which result in their being a firm and binding Agreement. In any case, it is customary that the deposit be paid to the Vendor's agent or lawyer to be held in trust until the completion of the transaction.

2. Conditions: It is customary for a sale/purchase of a chiropractic practice to be conditional upon the occurrence of one, some or all of the following conditions, namely:

a. The Purchaser verifying, to his or her satisfaction, the financial and patient records of the practice. The matter of "verification" actually constitutes the conducting of a "due diligence" search which will be dealt with in a subsequent article. The verification should be conducted so as not to interfere with the Vendor's practice or staff.

b. The Purchaser receiving and satisfying himself or herself as to the terms and conditions of the lease agreement for the clinic premises, and the written consent and approval from the Landlord of the premises for full assignment of the said lease agreement and may include the entering into of a renewal agreement extending the term of the Lease for a particular time period of, for example, at least 5 additional years from the date of the expiration of the present term. Alternatively, the Purchaser may desire to enter into a new lease for the premises.

c. The Purchaser obtaining satisfactory financing. It is important that the Purchaser receive a firm commitment from the lender prior to waiving any condition for financing. In addition, the parties may negotiate financing to be provided by the Vendor or through a leasing company and what security, if any, is going to be given by the Purchaser to the lender.

d. The Purchaser making satisfactory arrangements with the office staff and associates of the practice for their continued employment and involvement with the practice after closing.

e. The Purchaser obtaining licensor to carry on practice as a chiropractor within the applicable jurisdiction. This condition must relate to obtaining a license to carry on practice and not merely the graduation from an educational institution.

The conditions contained in the Agreement may be for the benefit of the Purchaser or the Vendor or both. Most of the above conditions may be for the sole benefit of the Purchaser and, as such, might be waived by the Purchaser. However, certain conditions might be for the benefit of both Parties, as in the case of licensure. Obviously both Parties have an interest in ensuring that the practice be transferred to a licensed practitioner.

3. The Purchaser will be interested in ensuring that the Vendor is a resident of Canada at the time of Closing. If the Vendor cannot execute a statutory declaration indicating that he or she is a resident of Canada, the Vendor will have to produce a certificate from Canada Customs and Revenue Agency authorizing the completion of the transaction or alternatively the Purchaser will have to withhold certain funds from closing and submit the funds to Canada Customs and Revenue Agency.

4. The Purchaser and Vendor will have to agree on the specifics relating to the Vendor's agreement not to carry on a practice within a specific location for a specific period of time, otherwise known as a non-competition agreement. The Vendor will generally agree not to carry on practice, as a chiropractor and/or acupuncturist, directly or indirectly, whether as a principal, partner, associate, investor or advisor, within a specific distance from the practice location for a specific period of time (ie. 2 to 5 years) from the date of completion of the agreement. In addition, the Vendor will generally be required to agree for a period of from between 2 to 5 years from the date of closing to not solicit, treat or otherwise advise patients of the practice. It would be wise for the Parties to agree on what patients might be seen by the Vendor after closing as in the case of immediate members of the Vendor's family and those other patients of the practice who might otherwise be inclined to be treated by the Vendor after closing. By setting out specific patients the Agreement will be evidence of the fact that the parties have put their mind to the issue of the reasonableness of the non-competition agreement. In addition, the Purchaser may wish to ensure that the Vendor agrees not to recommend any patient or former patient or the referring sources of Vendor's patients to any other chiropractor other than the Purchaser.

At the present time, there remains a genuine issue as to the enforceability of a non-competition provision. The Court of Appeal of Ontario has recently determined that a non-competition provision would not be enforceable if the issue could have been dealt with effectively by the use of a non-solicitation provision. At a minimum, it is important to consider having a determination of what the damages might be if there is a breach of the provision. If the Purchaser is required to prove the damages which he or she might have suffered as a result of the Vendor breaching his or her non-competition agreement, there may be difficulties if the Purchaser's billings have not actually been affected by the Vendor commencing a practice within the specified geographical area. The Purchaser may also wish to have inserted in the Agreement an acknowledgement by the Vendor that the granting of an injunction would be reasonable upon the Vendor breaching the non-competition agreement.

5. The Purchaser will want to ensure that all of the telephone numbers of the practice are included in the purchase price and that the Vendor will execute all of the documentation which might be necessary to transfer the telephone and facsimile numbers.

6. The Purchaser will want to ensure that the Vendor will be the owner of the assets to be acquired by the Purchaser free of all encumbrances, liens, and security interests. In addition the assets should be in good working order at the time of closing.

Purchase and Sale - Eleventh Post

2008-09-09T21:07:00.000-04:00

EW: The assets other than goodwill can be a significant component in the overall value of a practice. With the pace of changing technology and the move to multi-disciplinary and rehabilitation clinics, both the overall cost related to these assets and the degree of obsolescence are becoming more important to its value.

Before assessing a value for a particular asset, a purchaser should first determine if they will utilize that asset in their practice. An asset they won't use has no value as far as the practice is concerned. This issue is extremely important from the vendor's perspective also. To maximize sale value, the vendor should be searching for purchasers who practice in a similar style and who utilize the same types of equipment.

What is the most appropriate measure for value of a particular asset? To determine fair market value, many approaches can be taken. For a practice that has wound down and has no value beyond the equipment, net realizable value might be used. In some cases, this may result in what one may term a "fire sale" price. For a going concern, on the other hand, replacement cost would be a more appropriate measure. In other words, what would it cost to replace the same equipment? Replacement cost can be difficult to assess. As an example, consider the practitioner who has included, in a sale, his well maintained twenty year old x-ray unit. On the one hand, one cannot find a similar machine depreciated for twenty years. On the other hand, its value may be the same as or greater than a newer unit because of its workmanship and features. Obsolescence also affects valuation for similar reasons. As an example, it may be difficult to find an appropriate replacement cost for an old computer. Remember, value in use is the key.

How does one arrive at an appropriate replacement cost? For inventories and supplies, using their purchase costs would be appropriate because of the turnover of the items within a year. For equipment, computers and furniture, there are a few approaches:

1. Book Value: This is the depreciated value from the financial statements. This approach is often used for its simplicity. On its own, it may be useful where the assets are not of significant value. However, extreme caution should be used. At a minimum, the original invoices for the assets should be available and depreciation policies and rates should be reviewed. Often, accelerated rates may be used for tax purposes. A review of the repairs and maintenance account on the financial statements for the previous years may provide a picture of both the maintenance and the degree to which those assets may be wearing down. Where there are significant modalities and rehabilitation equipment involved, this approach is insufficient because the margin of error becomes greater.

2. Replacement Cost New: An approach which is often recommended is to obtain prices from dealers for the listed equipment. The prices obtained are, in fact, the cost to replace the equipment - new. Certainly, in practical terms, it is a useful measure because it addresses the issue of the same equipment. On its own, however, it tends to overstate the value in most cases.

3. Replacement Cost Used: Although this would approximate fair market value, it is often the most difficult to determine. The lack of a large market for used equipment and furniture is partly the reason. This is not to say that one can=t find used equipment - only that in valuing an existing asset it is difficult to find one that is the exact age or condition. To deal with this issue, it is often useful to obtain an independent appraisal. This is particularly important with assets of significant or potentially significant value. For example, if real estate were part of the transaction, one would not hesitate to request an appraisal of the property.

Leasehold improvements is an asset that has many a practitioner confused. Since the landlord owns the property, don't they ultimately own the improvements? Yes.....and.....no. The landlord may own the assets but the tenant owns the right to use those improvements during the term of the lease. This right to use the improvements has value because a purchaser would have to invest in their own improvements if they were to move into new premises. One method to arrive at a value would be to take the original cost and apportion it over the term of the lease. The remaining cost on the date of sale would be the value. From the purchaser's point of view, they should ensure that amounts were expended for actual leasehold improvements and not the recreation room in the vendor's home. An examination of actual invoices would be useful. Also, the lease should be reviewed to see who was responsible for paying for the leaseholds. Sometimes landlords will offer to pay for leaseholds as an incentive to attract tenants. From the vendor's point of view, aggressive tax planning, whereby leaseholds have been written off as repairs can backfire on a sale. This is one reason why planning for a sale is critical.

Finally, two other issues can impact on the value of these assets: Taxes and a corporation. Sometimes the value attributed to certain assets can give rise to unwanted tax implications, such as recaptured depreciation for the vendor or increased sales taxes for the purchaser. From the purchaser's point of view, the more value attributed to assets other than goodwill will result in greater tax savings over time due to the accelerated rate of depreciation.

The corporation can impact the asset values because of the tax implications of using a corporation. A vendor who sells the assets out of a corporation will have to consider the additional tax cost of removing the proceeds from the corporation. We will address other aspects of the impact of a corporation in a future article.

Ultimately, the approaches used to value the assets specifically will depend on the situation, what types of assets, their significance to the overall sale price and the information available.

More of the List

2008-09-05T22:11:00.003-04:00

and the list continues ------

18 white water rafting

19 London, England

20 a weekend on a houseboat

21 standing on the Uffice Bridge

22 spending a day with Gordie Howe

23 preparing a power point presentation

24 Geneva, Switzerland and Lake Geneva Wisconsin

25 being the only passenger on a Piper Navaho

26 one bar mitzvah, two bar mitzvah, three bar mitzvah

27 henna tattoo

28 Oslo, Norway

29 cross country skiing

30 ’65 triumph spitfire

31 14 weddings in 11 months

32 helicopters landing on a ship

33 Hamburg, Germany

34 go karting

35 a magic trick that works

36 Costa Rica

37 rollerblading

38 ’68 mustang

39 Paris, France

40 gondola ride

32 years and time for a change!

2008-09-03T21:28:00.003-04:00

Today was not unlike most other days. It is Wednesday. It is September 3rd, and in Toronto, the weather is sunny and warm. At CMCC the students are back in class and the world evolves in spite of itself.

But, for me things are not the same old same old. For the first time since September, 1976 I am not lecturing a class at CMCC. It is kind of sad. I still showed up at the College before 8:00 a.m. albeit on a motorcycle. Had some meetings, did what I had to do and then that was it. No class, no lecture, no nothing. So it was either time to go to the office or to do something different. The choice was easy.

I met up with Dr. John Cosgrove (’77) and on motorcycles we traveled to Collingwood to go for a motorcycle ride with Dr. John McLean (’51). Yes you are reading that correctly. He graduated in 1951, has a full head of hair, doesn’t wear glasses, is 85 years of age and rides one of the biggest motorcycles around – an 1800cc Honda VTX – and he rides it like he stole it!

For those of you who may be evidenced based practitioners (whatever that means) – all you have to do is look at Dr. McLean and realize that there must be something about being a chiropractor and naturopath that adds something to the quality of life.

Most of us hope to be mobile when we are 85 years old. Me – I want to be mobile on a two wheel motorcycle when I am the same age as Dr. McLean – that is 85 years young!

So back to today. I have decided that it is time that I start listing the things that should be done during a lifetime. A little like “100 things to do before you die”. But not quite. My list is for me -- the things that I have done that most people have not. I urge you to do the same. If the list is short – then you should start changing your ways.

My list goes something like this:

1. graduated from law school
2. taught for 32 years
3. writing articles for publication
4. eating donkey sausage in Cinzano
5. a sea cruise
6. a bungie jump
7. ballroom dancing
8. motorcycling – as in two iron butt rides of 1000 miles in 24 hours and 1500 miles in 36 hours
9. flying over the grand canyon
10. Lake Louise
11. driving the Blue Ridge Parkway
12. proctoring an examination
13. receiving a phone call on a plane
14. winning a bowling tournament with a score of 312 out of a possible 300
15. mojitos and cigars in Cuba
16. fishing but not wanting to catch any fish
17. New York, New York

I don’t know how unusual any of that list might be – but I sure would like to review the list of other people to know what I am missing. I already know that I am not going to climb a mountain (ask Dr. Gord Lawson – he has been there and done that); or run across a desert in Africa (ask Dr. Luc Laviguere – he has been there and done that).

So if you have a list share it and I will post it. It isn’t bragging – it is giving others an indication of what can be done. So as the day comes to a close – I look back and realize that I can add another number to my list -- I went motorcycling with an 85 year old chiropractor. Who would have thunk it !!!!!!

Purchase and Sale - Tenth Post

2008-08-30T21:11:00.003-04:00

AF: Having dealt with the value of the practice, it is important to keep in mind that the purchase price will be based not only of the value of the practice but additional factors such as the timing of the practice in terms of whether the vendor requires an expeditious completion of the transaction; how the practice is to be financed; and what is included in the purchase price. As in the discussions which have taken place concerning associateships, many of the issues involved in a Sale/Purchase of a chiropractic practice are interwoven as part of a big picture. It would be foolhardy and quite impractical to deal with any particular issues such as billings or a purchase price without looking at other issues such as staff turnover, what assets are included or the patient base. As such, the topic of which have been dealt with previously may well be raised again in a different context or as indicated, in the "big picture."

What should be included in the transfer of a practice, and just as importantly what constraints do the parties have in dealing with assets of the practice?

It would appear to be trite to indicate that a vendor can only sell what a vendor owns. However that is not necessarily the rule that governs a commercial transaction. The better principle to work by is that a "vendor has the right to transfer any interest which he, she or it may have in an asset subject to any constraints which may be placed on that transfer." For example, with respect to a computer that a doctor may have purchased, he or she may sell the computer to a purchaser, if there is no lien placed upon the equipment; if the equipment is actually owned and not leased; and if the doctor is the owner as compared to a management company. In any event, even if the computer can be sold, it is surely also trite to indicate that the computer software cannot be sold B it can only be assigned pursuant to the software agreement which generally exists and governs the acquisition of the software by a person purchasing the software from a retail vendor.

If equipment is the subject matter of a lien by a lender such as a financial institution, it is imperative that the vendors ensure that the lien can be lifted prior to the completion of the transaction or by using the proceeds obtained at the closing of the transaction. Vendors obligate themselves to discharge such liens pursuant to the Agreement of Purchase and Sale. This principle likewise applies to equipment that is leased. If the purchaser is to assume the lease then the Vendor should ensure that the lease agreement can be transferred to the purchaser and at what cost prior to signing any sale agreement. The leasing company may require that the vendor purchase the equipment or "pay off" the lease prior to any transfer of the equipment.

If the equipment is owned by a management company then it is imperative that the Vendors ensure that the management company is a party to the sale agreement. A vendor would not want to be surprised, at closing, by a management company that he or she may not control which is unwilling to transfer the assets.

The Purchaser should review the practice location of the Vendor very carefully to ascertain what is to be included at the time of the closing of the transaction. The list of assets being transferred would include a comprehensive list of each assets and might include the following: receptionist desk, chair, reception shares, end table, pictures, filing cabinets, telephone system, radio, television, refrigerator, fax machine, photocopier, computer, assignment of computer software, exterior sign box and sign, treatment tables, view box, x-ray, developer, office desk, chairs, skeleton, fire extinguisher, smoke detector, plants. This list is by no means comprehensive. A purchaser would be well served by visiting the location at least twice to ensure that a comprehensive list of assets to be included in the purchase agreement was actually created.

With respect to assets such as an x-ray machine, photocopier, computer, etc., a purchaser should have a provision inserted in the Offer whereby the Vendor agrees that the assets will be in good working order on closing. While the assets should be in the same condition which existed at the time that the Offer was presented (with or without a clause requiring them to be in good working order) it is not uncommon for a purchaser to fail to examine and try all equipment prior to the Offer being signed. This is a clear example of when the principle "let the buyer beware" applies.

In addition to the assets previously mentioned, a purchaser should have specific regard to the following assets:

1. Patient Files: The files should be transferred to the purchaser in their entirety. This should include all old files (which may be used to reactivate a relationship between the doctor and a patient) in the possession of the vendor together with all x-rays relating to the files. The vendor should require that the purchaser maintain the records for at least 7 years after the completion of the transaction and in addition, the vendor should ensure that he or she has reasonable access to the files or a copy of them if required by law (this might include matters such as a malpractice claim; billing dispute; a licensing board issue; or an income tax audit).

2. Financial Records: In so far as the Purchaser might require financial records for the ongoing care of patients or the maintaining of the practice, the purchaser should obtain such financial records. Again, the vendor should ensure that he or she has access to the records as may be reasonably required and that such records are not destroyed except in accordance with the sale agreement.

3. Supplies: Any supplies which are customarily maintained at the practice should be included in the purchase price. The vendor should agree to maintain the level of supplies in its usual quantity.

4. Inventory: If the vendor maintains products such as orthotics, vitamins or back supports, the purchaser will want to ensure that they are being acquired at the cost that the vendor paid, and secondly, that the inventory is in merchantable condition, that is, that each of the products is saleable, ie. the packaging is in a proper condition and/or the product has not reached or is about to reach its expiry date. In addition, the purchaser will want to ensure that the level of the inventory of the vendor is maintained in its usual capacity.

5. The computer software will require, as indicated, an assignment of the software licence agreements. If such software is created by a particular software producer, the licence agreements should be reviewed carefully to determine whether there are any restrictions affecting the transfer of the software in addition to the cost associated with the transfer.

The Vendor should ensure that any assets which are to be transferred to the Purchaser are subject to a Bill of Sale being provided to the purchaser. If assets are leased then the terms and conditions of the leasing arrangements should be reviewed carefully and dealt with in accordance with the lease and the purchase agreements. It is most important that the Vendor review any appropriate documentation relating to the ownership and leasing of equipment prior to executing an agreement relating to the sale of a practice. Being surprised after signing an agreement can be an expensive enterprise.

From the position of the Purchaser the assets which are specified in the Agreement of Purchase and Sale must be in existence at the time of closing, in good working order and free and clear of all encumbrances. A Purchaser who has paid a significant amount of money for a practice will be loath to have to expend any further funds to equip the office, whether that involves the replacement or addition of assets. The fact that a Vendor has an extensive amount of assets is of little concern to a Purchaser who is generally concerned only with the amount of the purchase price and the ability to maintain the practice in its previous state after the completion of the transaction.

Purchase and Sale - Ninth Post

2008-08-28T21:54:00.005-04:00

OTHER ISSUES

There are other approaches for the valuation of a practice, but they are generally used to confirm a value determined by another approach.

Other factors can enter into the valuation of a practice and make it more complicated. A major factor is the involvement of a corporation. With its inherent separation from the individual, income tax implications can enter into the calculation. Similarly, the allocation of the purchase price between tangible assets and goodwill can cause subtle or large changes in overall value.

Another factor is the effect of an associate or partnership arrangement. This may affect the ability to sell and, in the case of partnership, the income tax implications can affect the price.

The multi-disciplinary clinic brings its own issues. Will the potential purchaser be acquiring all aspects of the clinic? If so, there are different valuation issues for the other specialties.

Finally, consideration should be given to the potential for a "special purchaser" who perceives an even greater benefit and who may be willing to pay more than the average purchaser.

It should be evident to both potential purchasers and vendors that the value is a reflection of the practice as a whole. The illusion that a practice is worth a fixed percentage of historical revenue, regardless of the present circumstances, should give way to a clearer understanding of what factors really count in determining the value of a practice.

AMF:

The effort which is required to determine the value of a practice should take into consideration the fact that unlike real estate and commercial operations such as restaurants, and retail establishments the transfer of a professional practice involves to a very large extent the transfer of a practitioner's history as a doctor. The bottom line for any purchaser must be his or her ability to have earnings continue to be generated from the practice.

For a prospective vendor and/or purchaser the rumors, generalities, rules, policies, attitudes and guidelines involving the price to be paid for a practice abound in multitudes. "Everyone" has an opinion and "everyone" will provide guidance to a purchaser or vendor in terms of what he or she can expect to pay or receive from a sale of a practice. While it would be optimum to quote a textbook, study or economic principle that could be used as the guiding light for participants in a transfer of a professional practice relating solely to that of a chiropractor, alas, such does not exist to the knowledge of the writer.

If experience is any indicator of what transpires in the transfer of a chiropractic practice, (and having spent twenty-five years participating in the professional guidance of chiropractors) then generalities based upon experience may be the best indicator of what will result from the negotiations involving the establishment of the price relating to the transfer of a chiropractic practice. It is the experience of the writer that when all is said and done, and the experts have reviewed the practice to establish the sale price based upon billings, taking into account past revenues, receivables, equipment, leasehold improvements, etc., etc., etc., the parties ultimately will arrive at a value having regard to the billings. In the area of real estate acquisition it has been stated that the three most important factors in establishing the value of a property are location, location and location. In the area of practice valuations relating to chiropractic practices, the three most important factors are billings, billings and billings.

In addition, It is the experience of the writer that the parties must direct themselves to considering how revenue is generated from the practice. Obviously any general rule is subject to exception and should be adopted with careful consideration. No purchaser should be acquiring a practice for a "generally accepted" percentage of billings averaged over a number of years when the billings are decreasing.

However, just as important are the consideration which add to the discussion concerning the value of the practice in terms of the equipment, leasehold improvements and other assets. It is unlikely that a purchaser will be willing to acquire substantial equipment for a substantial price when such equipment does little to increase the billings of the practice. It is the position of the writer that historically, while a value is given to equipment and other assets, the value of the practice will be somewhere between 2/3 and 3/4 of a year's billings averaged over three years. From that starting point the value will go up or down depending on all of the factors which have been previously discussed including such matters as location, security of the lease, referral base, type of practice, turnover period, security of billings, name of practice, state of equipment, staff, financing by the vendor, etc.

For the purposes of establishing a value attributable to a chiropractic practice the golden rule can be enunciated in two words: "Status Quo" -- that being, "the more that can stay the same, the more the practice is worth!"

Purchase and Sale - Eight Post

2008-08-26T20:45:00.001-04:00

EW: The conceptual framework for valuation of a practice has been examined in the previous article. We now look at practical approaches to determining value. They include: Net asset value, comparable market, and approaches based on earnings.

NET ASSET VALUE

This approach is used where the practice has wound down and there is no value beyond selling the equipment and other tangible assets. It is also used where the goodwill of the practice is of a personal nature, and therefore, not transferable or saleable. This personal goodwill represents the personal skills, techniques, experience and contacts of the individual chiropractor. Lastly, it is used in the valuation of a successful practice, going-concern, where the tangible assets are determined and valued separately from the goodwill.

Net asset value can be determined in a few ways. The simplistic approach would be to value the tangible assets (eg. Equipment, furniture, etc.) at their depreciated book value on the financial statements. This may be applicable where their value in use closely approximates book value. Often, adjustments have to be made to book value, either increasing or decreasing the value. An example of an adjustment would be for land and building, where they are included in the sale of the practice. They would have to be adjusted to reflect outside appraisal. Another type of adjustment may be to reflect costs of liquidation where a practice may be closing or be subject to a bankruptcy situation. In that situation, a purchaser could be acquiring someone=s used equipment at bargain prices.

COMPARABLE MARKET

This approach determines the value by comparing it to other practices that have been sold close to the date of valuation. Most of us are familiar with this approach, especially as it pertains to real estate. Unlike real estate, however, transactions involving chiropractors tend to be private and there are not many comparable practices for sale at any given time. Many times, practitioners will make reference to a practice which they have heard has been sold at a given price and suggest that they be entitled to at least the same since their practices are similar. Since there are a multitude of factors which affect the value (see previous articles), NO TWO PRACTICES ARE ALIKE!

Clearly, to be useful as the primary valuation approach, one needs a large sample of practices sold with all relevant factors addressed. Because of its inherent drawbacks, this approach is most often used as a reality check with which to assess a value using another method.

EARNINGS BASED APPROACHES

In all cases, earnings based approaches assume the continuation of the practice after its sale known as a going concern assumption. The purpose is to determine a price which will provide to the purchaser a return on their investment at a rate of return that is acceptable to them, given the risk inherent in the practice. To many this may appear odd, talking about a practice as if it were, say, an investment in stocks or mutual funds. However, one must use the same theoretical approach to purchasing this type of business or any other. That return on investment, as described in the previous article, is the expected cash flow that the practice is expected to produce in the future. Expected cash flow is most often represented by maintainable earnings. In other words, what level of revenue less expenses can be expected to occur in the future based on the existing practice.

Capitalization of Maintainable Earnings

In its most simplistic form, this method looks at historical profits over a period of years and adjusts those profits for unusual items. Those items could include removing salaries to family members, eliminating revenues from revenue sources which will not continue in the future and adjusting for conditions which will change with the sale of the practice. The profits would typically be averaged to come up with a figure for maintainable earnings. However, to use previous years profits, or use an average only apply if the historical profits are an indication of the future. A practice which is on the downswing or is suddenly incurring excessive expenses would not be assessed based on distant history. Similarly, a practice which is experiencing significant growth should not be penalized by sticking to outdated numbers. In those cases, the more recent profits are often an indication of maintainable earnings and would be used.

Once a maintainable earnings amount is established, it is then necessary to capitalize those earnings to determine a value. This process involves assessing the risk inherent with achieving the level of earnings and deriving a capitalization rate. In previous articles, we have listed many of the factors affecting risk. The capitalization rate is more often referred to as a multiple. Therefore, the lower the risk, the higher the multiple. Multiples can vary from 2 times to five times earnings depending on the risk and whether a salary for the practitioner has been assumed in the expenses. There are a number of variations of this method. Even so, it is still the most comprehensive approach because it encompasses the revenues and the expenses, as well as the assets.

Maintainable Fee Revenue

This popular method, in its most simplistic form, looks at historical revenues over a period of years and capitalizes an average at a rate which reflects risk in order to determine goodwill. Similar to the earnings method, revenue should be adjusted for non-recurring income and, often ignore historical revenue in favour of more recent relevant data, particularly where there have been recent changes in the practice. The capitalization rate which considers all the risk factors is calculated by percentage. The lower the risk, the higher the percentage. Utilizing this method, a value for a chiropractic practice could vary from 20% to 70% of annual maintainable revenue plus tangible asset value.

This method suggests that revenue is the key determinant of cash flow. It further assumes that there exists a constant relationship between revenue and that cash flow. Because of its simplicity, the maintainable revenue approach has become a "rule of thumb" for the valuation of many professional practices, including chiropractors. Its simplicity is also its weakness, because it ignores the fact that some practices may pay higher than average rent, or be more efficient with their overhead. Some may have associates to whom they pay a portion of the fees billed. Because of these deficiencies, this method should be used with caution and can be used as a reality check with a valuation based on earnings.

Purchase and Sale - Seventh Post

2008-08-25T20:41:00.003-04:00

Goodwill

Thus far, we have been discussing a number of concepts and factors affecting the value of goodwill. In most cases, it comprises most of the eventual price so it is extremely important that both vendor and purchaser understand what type of goodwill has value. There are two types of goodwill: Commercial and personal. Because of the nature of professional practice, they often overlap and make valuation difficult.

Commercial goodwill is the goodwill which has value and can be sold or transferred to other parties. It represents the perceived benefit to prospective purchasers of getting into practice with an established office, existing patient base, staff and premises. It's value is in direct proportion to the ability to maintain the earning capacity of the practice.

Personal goodwill has little or no value and is not transferable or saleable. It represents the personal skills, techniques, experience and contacts of the individual chiropractor. The degree to which these factors cannot be emulated by a prospective purchaser will affect the ability to sell the practice. A typical example would be where a chiropractor practices a unique procedure that no one else does, including prospective purchasers. If this procedure is the only source of revenue, the practice will have no value for goodwill.

In looking at the conceptual framework for determining the value of a practice, a prospective vendor should be more aware of what factors determine that value and therefore implement changes to their practice to improve its ultimate liquidity and sale price. Prospective purchasers should have a better understanding of what elements to look for in a practice in order to find the right practice for the right price.

AMF: For both the Purchaser and the Vendor it is important to keep in mind the bottom line B how much is being paid and how much can be retained after the payment of debts, including taxes.

The Purchaser must remain concerned about the ability of the "asset" being able to generate the income which has been represented to have existed at closing by the Vendor. Was there "value" to the "asset". All things being equal, the Aasset@ should be able to provide income which has been anticipated by the Purchaser to be derived by the practice after closing.

Empirically and by anecdotal discussion with purchasers, there is no reason why the billings generate previously by a practice cannot be maintained by the purchaser with a "drop off" rate of no more than 15%. The drop in patient income after closing should be able to be maintained at an amount not less than 10%. In order to accomplish this fact, the Purchaser must be in a position to maintain the "goodwill" after closing as it had been maintained prior to the transfer of the practice. The status quo is the most vital part of a practice in that the less that is changed the better. There is a sense of security for a patient who attends an office and is able to be assured that things will remain the same in terms of staff, location, treatment technique, billings and other office protocols.

There is danger to making any immediate changes to the practice which will cause a patient to question whether the "office" has changed to an extent whereby the patient is content to seek care elsewhere. This includes the addition or replacement of equipment or furniture.

There will always be some "drop off" by patients who are members of the Vendor's immediate family or for some reason may have a relationship with the Vendor which will result in the patient remaining with the Vendor after closing notwithstanding the non-competition and non-solicitation provision. The Purchaser should recognize that these patients exist and should ascertain from the Vendor the extent of the list and how it will affect the future income of the practice.

A practitioner should keep in mind that as long as there is a purchaser willing to pay for that portion of a chiropractic practice which exceeds the actual value of furniture, equipment and leasehold improvements (whether that value is established by replacement cost, undepreciated value or actual cost) goodwill will continue to be an asset which can be created, maintained, bought and sold.

Purchase and Sale - Sixth Post

2008-08-13T15:41:00.001-04:00

Purchase and Sale - Fifth Post

2008-07-31T19:54:00.002-04:00

The next issue which will be considered by the parties is the type of practice being carried on by the Vendor. Does the Vendor carry on a particular type of practice which may limit his or her marketability? For example, if the chiropractor practices acupuncture or is a naturopath or has some particular expertise, ie. a sports fellowship or predominantly deals with paediatrics or geriatrics, the marketplace with respect to a potential Purchaser may shrink. The more specialized the practice the less potential Purchasers that may be available to acquire the practice. The greater the marketability of the practice the greater its value. Inevitably, the Vendor and Purchaser must be compatible in terms of their practices.

While it will be difficult if not impossible for a practitioner to change his or her practice technique in the time available for a transition of a practice, it may be beneficial for a Vendor to bring to a practice another practitioner who is in a position to assist the practice for the purposes of making it more saleable. Such would be the case in the event that the chiropractor is also a naturopath and is only able to sell the practice to a chiropractor who does not have dual licensure. The Vendor could enter into an associateship agreement with a naturopath to assist a Purchaser is acquiring the practice and maintaining the clinic's ability to provide care outside of the knowledge of the Purchaser.

For the purposes of establishing a value to the practice, it will be necessary to ascertain the basis from which patients are derived. Are the patients referred to the clinic from a source which may not exist after closing (ie. a relative of the Vendor)? Do the new patients come from an internal referral source (ie. existing patients)? If such is the case, the goodwill is of more value than a source of patients which will disappear after closing.

What are the billing practices of the Vendor? The Purchaser will be stepping into the shoes of the Vendor so he or she must be prepared to assume the same billing procedures of the Vendor. This applies to issues concerning what the Vendor bills in terms of quantum together with any policies that might exist in terms of discounts to students, children and seniors, and any credit policies which the Vendor may have.

Any Purchaser who alters the policies concerning billings to patients, or for that matter any office issues including office hours, methods of practice or even the office design does so at his or her peril. Again, any change in the status quo is an invitation to disaster.

EW: In the previous article, some of the factors in determining the price were addressed. Since value ultimately results in a number, taking those factors into consideration, how is value established?

First, it is imperative that both vendor and purchaser have an understanding of what value really means. After quickly suggesting that it means the worth of something, an examination of some valuation concepts will provide greater clarity to the determination of value.

1. Value is determined as at a specific point in time. That point in time could be the date of sale or the date of an offer of purchase and sale. It could also be determined as of the date of death or separation, as in the case of a marital or partnership dispute. The distant past is irrelevant unless one is determining a value as of some previous date. I have encountered some vendors who have an inflated view of their practice=s value. They argue that one use a fixed formula based upon some average of previous years= activity (however that is measured). Meanwhile, they have allowed their practices to decline more recently. The old expression, "What have you done lately," really takes on importance in that situation. The future is uncertain even though one might have certain expectations. Therefore, a valuation would consider the current state of the practice, the profession, as well as the related health care industry and economic environment.

2. The vendor is selling the future. In any purchase and sale transaction, the purchaser and their advisors are assessing what to expect in the future. Past results are essentially used as a guide to help determine future results. This is why practice statistics and financial information are requested for a number of years. As stated above, the future is uncertain and it is the purchaser who assumes that risk. With that in mind, the higher the perceived risk of attrition or financial loss in the future, the lower the price.

3. Expected cash flow determines the price. Ultimately, it is the cash flow that the practice is expected to produce which determines the majority of the value. The remainder of the value is made up of tangible assets, such as equipment, furniture and leaseholds. In some cases, real estate sold as part of the transaction will influence the price. The other key component is the risk associated with obtaining that cash flow. The risk is evaluated by assessing a number of factors which were identified in the previous article. Because of their importance, I will restate them. They include, but are not limited to:

1. the location of the practice;
2. the right to practice at that location;
3. the type of practice;
4. the staff; including referral base;
5. the name of the practice;
6. the billings of the practice;
7. the intentions of the vendor after closing.

4. A higher value attributed to "tangible assets" will generally result in a higher price. What this implies is that two identical practices will be sold for different prices where one has more tangible assets than the other. Even though a chiropractic practice is not capital intensive, compared to other businesses, there is still a perception of reduced risk to the purchaser. This applies to a lender as well. Financial institutions are generally willing to lend more against tangible assets than goodwill. In fact, many transactions have been aborted because some banks refuse to lend against significant amounts of goodwill, while they are more lenient in situations where the tangible assets are in a higher proportion. Greater value attributable to tangible assets also means greater tax savings through accelerated depreciation.

5. The liquidity of a practice is a key determinant of value. This refers to the ease with which the practice can be sold. As in real estate, the greater the number of potential purchasers, the higher the price. Conversely, the greater the number of practices for sale, the lower the price. Unlike real estate, there are not many practices for sale at any given time. Nevertheless, from a vendor=s point of view, all things being equal, one would be inclined to offer a practice for sale when there are no other practices for sale in the area. "Special purchasers" who perceive an even greater benefit will be willing to pay more than the average purchaser. One example could involve a practice where the chiropractor also practices acupuncture and it comprises a significant portion of the revenue. A purchaser who is also able to practice acupuncture will more than likely see more value than one who does not practice acupuncture. A second example could involve an associate or partnership. The associate or partner may perceive greater value and thereby offer a higher price than a total stranger. However, the more personal the practice the harder it is to sell and the lower the price.

Purchase and Sale - Fourth Post

2008-07-23T09:32:00.002-04:00

We have dealt with the issue of "why" and "who" we should now deal with "when". Consideration should be given as to "when" a practice is most suitable for selling in terms of not only its worth but the related issues such as an expiration of a lease, the retirement of debts, the marketing of the practice (in terms of new graduates willing to purchase a practice), a new billing year to government or private insurance carriers, and any other issues which may affect the goodwill of the practice and ultimately the purchase/sale price.

As was indicated in the first article, it is best to be proactive in so far as a practitioner might make an informed choice as to when a practice will be sold. It is not merely a matter of waking up one morning and determining by the afternoon that a Purchaser should be found and the practice disposed of. Any consideration of such an option is dealing with a practice on a crisis basis. More important, a Vendor should work towards selling a practice. Having regard to the factors which make up the goodwill of a practice for which a Vendor will be compensated, a Vendor might well spend some time reviewing a practice and ensuring that the practice is in a shape which will attract the best price. This issue is no different from dealing with the sale of a residence which requires a painting or cleaning before it is placed on the market.

For example, if it is accepted that a practice which uses a location name is more attractive to a Purchaser than that of a practice which uses the name of the practitioner (ie. Ontario Chiropractic Clinic vs. Smith Chiropractic Clinic) it would be wise for a doctor who is presently using his or her name to change such a name to a location or something other than his or her personal name. The use of a generic name allows for an easier transition on a sale from a Vendor to a Purchaser. There are legislative limitations which are placed upon a Purchaser using the name of the Vendor.

Given some time, a Vendor can take care of such a situation. For practices which are sold in an untimely basis, such situations may not be able to be remedied and the sale price may be detrimentally affected by the personal nature of the name of the practice. Further on in these articles, we will deal with other considerations which should be taken care of a Vendor for the purposes of obtaining the best valuation possible further on in the articles.

When dealing with actual disposition or acquisition of a practice it is important to keep in mind the initial issues which we had discussed in terms of the Agreement which will be entered into between the parties, namely, who, what, when and how. In the case of who, we had reviewed the issues concerning the possible parties to the agreement. It is imperative that all of the relevant parties join in the agreement. Even if the practice had purportedly been operated by a corporation, it is imperative that a Purchaser ensure that a licensed chiropractor be a party to the agreement. A corporation in provinces which do not allow chiropractors to incorporate their professional practices cannot own a professional practice. Such corporations cannot own and transfer patient files which by their very nature are the subject of confidentiality. Such corporation cannot own the goodwill associated with a chiropractic practice which is regulated by statute, but it might well have "goodwill" of its own.

While a corporation may be a proper party to the agreement, having owned the chattels and leasehold improvements, it cannot be the sole party to the agreement. It is just as important to have a spouse be a party to an agreement if the practice is a family asset.

To the Purchaser and Vendor the most important part of an agreement may very well be the price which is to be paid for the practice. There are a number of opinions which appear to be in vogue and are used for the purposes of validating a purchase price for a chiropractic practice. Before we arrive at the conclusions relating to the formulae for ascertaining the purchase or sale price of a practice, it will be useful to deal with the issues involved in evaluating a practice.

There are a number of factors which come into consideration for the purposes of arriving at a value of a practice, namely:

1. the location of the practice
2. the right to practice at the location
3. the type of practice
4. the staff
5. the patient profile, including referral base
6. the name of the practice
7. the billings of the practice
8. the intentions of the Vendor after closing

As far back as 1987, the case of Rasmussen and Rasmussen (Ontario District Court, O.J. No. 1303) dealt with the considerations involved in valuing a chiropractic practice. Mr. Justice Forget dealt with a number of factors which are relevant for the purposes of determining a value to a chiropractic practice and concluded that a chiropractic practice has a "goodwill value".

In the opinion of the writer there is no more important determination in the value of a practice than that of ensuring that the "status quo" will continue after closing. The less changes that will take place the more valuable the practice becomes.

With respect to the location of the practice, it is important from the position of the Purchaser to ensure that the location of the practice will continue to remain as it is at the time of the transfer of the practice.

If there are substantial changes which will be made to the geographical area of the practice the more likelihood that the goodwill of the practice will diminish.

The second issue to be considered with respect to the matter of valuating a chiropractor=s practice is that of the Vendor's right to carry on practice at a particular location and subsequently the Purchaser's right to continue to do so after closing. This issue will either involve a lease or the ownership of the building in which the practice is carried on.

In the case of a lease, consideration must be given to the terms of the Lease Agreement dealing with such issues as:

1. the remaining term of the lease
2. the right of the Vendor to assign the lease to the Purchaser
3. the right of the tenant to maintain associates
4. the uses to which the premises may be used
5. the right to new the lease
6. any option to purchase the leased premises
7. any exclusivity rights of the tenant

Obviously the more rights that the tenant has the more valuable the lease. A lease with a high rent and long term may be considered to be a liability. A long lease with a low rent may be considered to be an asset. The totality of the terms must be dealt with in order to ascertain whether a lease will be attractive to a tenant.

However, there may be a more important consideration which should be considered by the Vendor and will impact on the Purchaser. If the Vendor assigns the lease which has a further term to run, ie. 3 years of a 5 year term, it is customary that the present tenant (Vendor) will not be released by the landlord from his or her obligations under the lease. If the new tenant (ie. Purchaser) defaults in his or her obligations under the lease, even two or three years after the completion of the transaction, the Vendor may be called upon by the landlord to satisfy the obligations of the Purchaser/tenant.

It may be more prudent for a Vendor to have the Purchaser enter into a new lease agreement with a Landlord so that the Vendor will not have any continuing obligations to the Landlord. However, as in most of the issues involving a sale of a practice, there are a number of interwoven issues which must be considered in terms of other issues.

If a Purchaser and Vendor agree that part of the purchase is to be paid over time, ie. one, two or three years, the Vendor may want to obtain some security for the outstanding debt. If there is also bank financing involved, it may be likely that the accounts receivable and assets have been pledged to the bank as a first security. The most appropriate security left to the Vendor to ensure payment of the outstanding indebtedness of the Purchaser are the files of the practice and a right by the Vendor to take over the lease. If the Vendor is owed part of the purchase price by the Purchaser or the Vendor is responsible for the lease obligations, the Vendor may wish to retake possession of the premises to attempt to mitigate his or her damages.

If the Vendor is the owner of the building in which the practice is carried on, there are at least two issues which will have to be dealt with by the parties. First, is the building to be including in the transaction? This becomes more of an issue if the practice is that of a home practice. If the dwelling is not included in the transaction, will the Vendor be able to sell the building to another party, or even more importantly is the value of the practice or the building's value affected by the fact that the two assets are not being sold as a joint basis.

If it is unlikely that the building and practice can be sold together either because of the costs involved or because of another issue, such as zoning, it may be appropriate to have the practice relocated prior to its sale by the Vendor. A Purchaser and Vendor may both have difficulties with respect to an immediate relocation of the practice after closing and as such it may be an issue which the Vendor will have to deal with if he or she hopes to obtain the highest price possible from a sale of the practice.

If the Vendor and Purchaser are entering into a lease arrangement for a building owned by the Vendor, the Purchaser may wish to obtain an option to acquire the building in the future. If such is the case, it is important that the terms of the option be agreed upon without leaving any issues open for debate (ie. how is the price to be determined, when is the closing, what fixtures are to be included).

If the transaction is to include the building and particularly if the building involves a principal residence, there are tax considerations which should be considered by the parties prior to the completion of negotiations.

Purchase and Sale - THIRD POST

2008-07-18T23:26:00.002-04:00

Part II

Once you have come to grips with the concept of selling or buying a practice, and, if you are selling, you have ascertained that the timing of the practice is most appropriate for the purposes of obtaining the best value for the practice, the next issue to be dealt with who are the parties to the transaction and who else might be involved in the matter. While the obvious parties are the purchaser and the vendor, it should be remembered that there a number of other individuals who will be privy to the agreement and will have some impact on the transaction.

The Vendor may simply be a chiropractor who has established the practice and is now desirous of disposing of same, or may include a management company which owns some of the assets or a spouse which may have an interest in the practice. Even more customarily, there are individuals or entities which may have an interest in the practice and who will have to become involved in the transactions. These parties may include the bank of the vendor which will have to consent to the discharge of any encumbrances registered against the assets of the practice; a landlord who may have to consent to the negotiation of a new lease or the transfer of an existing lease; the parties who might be leasing equipment; the companies who may licence software; employees who may be remaining at the practice after the sale and of course the patients. In the case of the purchaser the parties may be quite similar in that in addition to the actual purchaser, the landlord, bank and employees may play an integral part in the transaction.

From the Vendor's standpoint there are different considerations with respect to dealing with the individuals, as indicated above, who may play a part in the transaction. With respect to the Vendor, it is important that the actual persons who have an interest in the transaction be made a party to the transaction, ie. any corporation or a spouse.

With respect to the bank, a vendor should ensure prior to the commencement of negotiations what encumbrances, if any, will be required to be discharged at the time of closing and the costs associated with such a discharge. If a practitioner is carrying on two practices simultaneously, a discharge may be required of all debts owed by the practitioner to the bank notwithstanding that the debt is owed to the bank for a matter unrelated to the practice. This may be a requirement of the bank and unless consent is given by the bank to the closing without payment of all indebtedness of the Vendor, the Vendor may be required to make such payments in accordance with the statutory obligations which will be discussed later in the articles.

In the case of the landlord, the situation is not quite so simple. While the consent of the landlord may be required to complete the transaction or the landlord may be asked to negotiate a completely new lease, the timing by the Vendor with respect to the aforementioned request is highly critical. It is quite likely that any proposed Agreement of Purchase and Sale submitted by a Purchaser will be conditional on such matters as bank financing or graduation. If there is a likelihood that conditions other those involving the lease (ie financing or graduation) will not be fulfilled it may be more than a nuisance if a Vendor contacts the landlord for consent to transfer a lease. The request might be costly in terms of the investigation which the landlord may undertake as a result of the request by the Vendor and for which the Vendor will be responsible. It may be more appropriate to deal with the conditions concerning the lease when the other conditions have been fulfilled. However, it is imperative that the lease be reviewed by the lawyer acting for the Vendor prior to any Agreement being executed by the Vendor.

An even trickier situation involves that of the employees. If, as part of the transaction the employees will be required to continue at the practice, the Vendor should have some reasonable expectation that the employees will remain. Obviously, if the Vendor is relocating to a community many, many miles away, ie a different province, and the staff is comprised of family members, then it may be unlikely that the staff will be remaining. However, the timing of telling the staff of the possibility of the sale by the Vendor is highly delicate and should be dealt with as such. I have experienced situations in which the Vendor informed the employees of the pending sale at the outset and I have also experienced situations in which the Vendor refrained from advising the employees until it was absolutely necessary. Obviously it is a matter which should be dealt with very carefully depending on all of the factors affecting the parties.

Unless the agreement relating to leasing of equipment or such things as computer software require immediate consideration by a vendor, such matters should be able to be dealt with in the ordinary course of events, ie. after the signing of the agreement. However, in all cases, the agreements and commitments of the Vendor must be reviewed prior to the execution of the Agreement.

In addition to the other parties who will have an impact in the transaction, it is just as important to consider the involvement of the lawyer and the accountant. In the case of each of these individuals, they should be contacted prior to the negotiations being undertaken by the vendor and the purchaser. Both the lawyer and the accountant should be allowed to advise the Parties of the issues which will be involved in the transaction, ie. the responsibilities of each of the parties both before and after closing and any additional considerations with respect to such matters as income tax, and professional matters. There are a number of considerations in the completion of the transaction which can have an impact on the finances of the parties. Once the negotiations have been completed it is difficult for a lawyer and accountant to bring new issues to the table. While the agreement may not yet have been completed there is a matter of integrity in the negotiation process which can do damage to the relationship of the parties in the event that either Party is required to reverse his or her earlier position.

The Parties may involve a Real Estate Agent or Business Broker in the transaction. This individual may be acting on behalf of a Vendor who has listed his or her practice for sale. The individual may be acting on behalf of a Purchaser who is seeking a practice. In any event, the agent may assist in locating the practice, evaluating it, assisting with a transfer of a lease, assisting in the preparation of the Offer to Purchase, obtain financing and generally assist in the completion of the transaction. Unlike lawyers who are prohibited from contacting the client of the other lawyer, whether it be a purchaser or vendor, the agent is not restricted from such contact. As such, an agent is in a position of intervening when difficulties may arise between the purchaser and vendor with respect to ensuring that there is an orderly transfer of the goodwill of the practice. The writer has participated in the sale/purchase of practices where it is unlikely that the transaction would have been completed. Both the vendor and the purchaser had become dejected because of the problems which were arising with respect to bank financing and a transfer of the lease. The agent was able to assure the parties that the difficulties were not insurmountable and, in fact, the problems were overcome by the intervention of the agent.

Finally, the Vendor must take into account any issues involving patients. At what point in the selling a practice should the patients be made aware that the Vendor will be terminating his or her relationship with the patients. The decision is obviously one of choice by the doctor but it is imperative that it not interfer with the continuation of the goodwill of the practice. It is likely that there will be a transition period to allow the purchaser to become involved with the practice. It is during this time that the patients will be introduced to the purchaser. More on this subject will be dealt with during a discussion of the Agreement of Purchase and Sale.

Purchase and Sale: Second Posting

2008-07-14T14:36:00.000-04:00

INTRODUCTION:

A.F. Where to begin? There are a multitude of issues which arise in the acquisition or disposition of a professional practice. Beyond those issues dealing with a price, what assets are included, and when is the sale to take place, there are more difficult issues to deal with all of which may well come down to those five customary questions, namely, Awho, what, where, when and why@ -- and don=t forget Ahow@! Each of these questions can have an impact on the purchaser or seller in terms of whether a practice is saleable and under what terms and conditions.

When dealing with the different questions concerning the purchase and sale of a practice, the doctors will undoubtedly be concerned about price and what is included in the Adeal@. However, from experience garnered from years of involvement in the transition of chiropractic practices, it is the opinion of the writer that the most important question of all is Awhy@. The answer to this question leads logically to dealing with all of the other issues involved in the disposition of a practice.

WHY is the practice being sold? Is the vendor retiring from practice? Is the retirement voluntary or is the practitioner being forced to retire because of ill health, financial or professional difficulties? This might be the appropriate time to provide a definition of a bona fide commercial transaction, which might be described as a transaction between a willing purchaser and a willing seller for good and valuable consideration and acting at arm=s length from each other. In the Aordinary@ course of events the willing purchaser and willing seller would negotiate a price for the practice which is based upon objective factors resulting from the experience of prior sales and professional evaluations of the practice. Almost all practices have a worth -- some more than others. In some cases the worth of a practice has to be established for purposes other than a sale, ie. a matrimonial valuation, estate valuation, insurance claim. In the later instances the objective tools used for valuations are applied to assume that a sale of the practice would be between a willing purchaser and a willing seller without unusual factors. It is these factors that might come into question in dealing with Awhy@ the practice is being sold.

If the vendor is ill; if he or she has died and an estate is disposing of the practice; if there
are severe financial difficulties being experienced by the vendor the value of the practice and the method of dealing with a disposition of the practice will have to be tailored to deal with the difficulties. Both the purchaser and the vendor must be cognizant of any factors which may affect an orderly transition of the practice from the vendor to the purchaser. At the end of the road, that is to say, when the practice has been sold and delivered to the purchaser, the only thing that should have changed in the office is the doctor. The location remains the same, the equipment remains the same and hopefully the staff and patients remain the same. To put the matter in a proper perspective, there are three relevant bodies in the practice, namely, the doctor, the staff and the patients. The only body that should change is that of the doctor.

If the vendor is selling for retirement purposes or to relocate his or her office, these reasons must be considered in terms of where the practitioner is relocating. Is the vendor leaving practice permanently? Is the relocation permanent? While the intentions of the seller may be sealed in a contract with the use of a non-competition and non-solicitation provision, it is important to avoid any hard feelings which may be transmitted to patients of the practice by a seller who didn=t appreciate the seriousness of an agreement by which he or she agreed not to treat patients of the practice or establish an office within a certain geographical area of the practice which had been sold. Again, why is the seller selling and where is he or she going?

E.W. From a financial standpoint, the vendor must be clear on their motivation and committed to complete the transaction. Often, practitioners decide to sell without preparation, only to find that their net return is insufficient to satisfy their objectives. The main reason this occurs is because they haven=t clarified their objectives in the first place. If one decides to retire, for example, while the practice is on a downward trend, the net proceeds would not be the same as the practice being sold at its peak. If you were depending on a maximum selling price for your retirement, you should plan to put your practice in shape before putting it up for sale.

There is also the issue of selling for the wrong reasons. A practice may be offered for sale in order to get out of a costly lease or other fixed overhead, for example. Don=t be surprised when a prospective purchaser cannot be found! Clearly, a seller seeking to escape problems will realize a minimum return, if any.

Motivation and commitment go hand in hand. Once a decision is made to sell, the seller must be prepared to follow through. Waffling on the decision to sell can have devastating results; from lost revenue due to confusion in the practice, to potential litigation if a sale transaction is not completed. Having a clear objective and a strong commitment can help ensure a smooth transition.

Purchase and Sale of a Professional Practice

2008-07-11T23:11:00.002-04:00

The following article and those dealing with this topic were originally written by myself and Ernest Wolkin, C.A. http://wolkin.ca/ and appeared in Canadian Chiropractor http://www.canadianchiropractor.ca/ . This topic will be presented in a number of postings.

PURCHASE / SALE OF A CHIROPRACTIC PRACTICE

Allan Freedman, LL.B.
Ernie Wolkin, C.A.

A.F. As the chiropractic profession continues to progress through its second 100 years of history, a natural result will be the increasing number of chiropractic practices that will be transferred from one doctor to another doctor through a voluntary or involuntary financial transaction. With respect to the matter of the voluntary transfer of a chiropractic practice, the customary transaction involves the purchase/sale based upon a willing purchaser acquiring the practice from a willing seller based upon fair market value. An involuntary sale might include either a disposition by a trustee in bankruptcy or an estate on behalf of a deceased practitioner.

Through a series of articles, we will be reviewing the various issues involved in the sale and purchase of a chiropractic practice, including the terms, conditions, warranties, representations, searches and valuations involved in dealing with a sale and purchase. There are different considerations involved in the various transactions depending on which Aside of the fence@ the practitioner finds him or herself. Just as important is the fact that there are a number of different parties who may be involved in the transaction, namely, the vendor, purchaser, their spouses, lawyers, accountants, real estate agents, appraisers, bankers, and landlords. It is the intent of the authors to acquaint the reader with an understanding of the issues involved in the transactions in order that the doctor will be in a position to meet the challenge of acquiring or disposing of a chiropractic practice in a professional manner in order to achieve not only the highest financial gain but to ensure that there is an orderly transfer of the practice to ensure that interests of the patients are maintained as being the most important factor in the transaction.

We have approached this topic in a novel fashion. The various topics which will be discussed in the series of articles will be commented upon within both the legal context and accounting context. The reader may well find that the comments of the two authors may not always be in agreement. In some cases, the important considerations relating to matters of finance may not necessarily be the same considerations relating to those of a legal nature. In other cases, the information presented by the authors may seem completely redundant. In any event, in those instances where the author is Allan Freedman, LL.B., the initials "AF" will be used. In those instances where the author is Ernest Wolkin, C.A., the initials "EW" will be used.

It should always be kept in mind that it is always left to the purchaser and/or seller to ascertain what might be in his or her best interests. For the most part, what we are about to endeavour upon is novel in approach and fraught with risk. Hopefully, when the series of articles has been completed, the reader will be better educated and in a position to deal with the contingencies of a sale or purchase of the practice. After all, we are all, at some time, going to be leaving professional practice in the 21st Century!

Valuations:

2008-06-14T14:28:00.002-04:00

If you are contemplating going through the process of obtaining a valuation of your professional practice, you should be prepared to deal with the production of information concerning your practice. The following is a list of some of that information. It is imperative, however, that every practice, every transaction and every valuation be dealt with as a unique exercise which may require additional and important information and disclosure.

1. A copy of financial statements of the practice for the last three years together with a copy of the front page of your income tax return confirming your professional fees.

2. Details concerning your gross billings since your last year end.

3. Are your gross billings all a direct result of patient billings? If not, what percentage of the gross billings is attributed to billings generated by associates? Details of any portion of gross income that is related to income from associates or the sale of vitamins, orthotics, back rests etc. and the amounts of each?

4. A copy of the present lease for the premises in which the practice is being maintained.

5. If there is a corporation involved in the operation of the practice?

a. Is there an agreement between the corporation and yourself?

b. Provide a copy of the financial statements of the corporation for the previous 3 years.

6. Can your practice be defined as being “straight, mixer, activator, etc., etc.?
.
7. Do you have any specialty designations, ie. Fellow of Sports Sciences, Radiologist, etc.?.

8. Is there a majority of patients who require acute or maintenance care?

9. Do you receive referrals from any particular source? If yes, what is the source of the referrals, and would that source of referrals continue after a sale of the practice?

10. A list of the equipment in the office.

11. How many chiropractic support staff are involved in the practice?

12. How many of the staff will remain at the location should a sale of the practice take place?

13. Is your spouse working in the office? If not, did she/he work in the office?

14. What is the name of the practice? Is it registered?

15. Are there any associates in the practice? Have there been any other associates of the practice (chiropractic or otherwise)? How many? Details have to be provided as to when they were involved in the practice and why they left?

What are fees for services established by your office? Initial visit? Subsequent visits? Breakdown between billings, ie. 3rd party insurance, WSIB, patient payments?

Upon receipt of the above information, an opinion as to value should be able to be prepared with respect to the practice. However, there may be further information which might be of assistance in the preparation of the opinion having regard to the peculiarities of the particular practice. For example, should the location of the practice be in a community which is peculiar to a particular segment of the population or is otherwise unique, that issue would have to be taken into account. Examples of such peculiarities might include ethnic or language characteristics or communities which are inundated with or lack practitioners. Each characteristic has some bearing on the attractiveness of the practice. The "bottom line", for the most part, rests with the ability of the purchaser to maintain the "status quo" of the practice, which invariably allows the practitioner to maintain a cash flow to allow for payment of expenses, the return of the purchase price, and receipt of a reasonable profit.

Further Postings

2008-06-09T10:09:00.002-04:00

While initial interest in the Blog has been interesting and worthy of continuance. I should let you know what is in the future. It is my intention to post information on the valuation of a practice -- the course notices from teaching for 32 years and issues relevant to any interested party. I have not allowed for comments -- even my time is limited -- but if there are issues to be dealt with -- my email address is all over the Blog.

Postings

2008-06-05T14:23:00.003-04:00

For those of you who are sitting patiently by waiting for the next posting -- I have finished a 3.5 hr presentation to the Vocational Rehabilitation Association and doing a presentation at CMCC this weekend. Thereafter, in between writing a chapter for a medical text edited by a faculty member at McGill, I will start posting further articles, etc.

otherwise, shut off the computer and enjoy summer!!!!

allan freedman

Question:

2008-05-18T19:38:00.003-04:00

2. Which of the following statements relating to carrying on practice are correct?

a. A benefit of being a sole practitioner is the equity in ownership of the practice.

b. The benefit of being an associate is the control over office procedures.

c. The benefit of being an employee is the lack of a capital investment.

d. The benefit of being a partner is the immediate income from salary.

e. The benefit of being a sole practitioner is the deductions paid weekly for income taxes.

Associate Agreement - Part 2

2008-05-13T19:34:00.002-04:00

SIGNAGE

If the sign of the practice is to be changed, who is going to pay for the sign? If the names of both practitioners are to be set out on the sign, are there going to be steps taken to ensure that the associates are not represented as being "partners"? The appropriate principle of law indicates that persons carrying on practice together may be looked upon as partners if they either agree to be partners or they hold themselves out as partners. It is imperative that the signage or letterhead of the Clinic set out the fact that the practitioners are carrying on practice as associates, as the case may be, without misleading or confusing patients or anyone else who interacts with the practice. This same principle applies to letterhead for the practice if the names of the practitioners are to be set out on the same letterhead.

ADVERTISING

While the question of who is going to pay for advertising might seem like the most important question to be considered by the parties when dealing with this issue, it is not as important as dealing with the question as to who has control over its content. Obviously, the advertising content must be in conformity with the licensing board standards of the profession. However, neither party may wish to sign a "blank cheque" to allow the Clinic or the associate to engage in extensive advertising or even minimal advertising without the other practitioner's consent.

NAME OF THE PRACTICE

The agreement should set out clearly as to how the chiropractic practice is to be referred to, ie. "chiropractic clinic" or "Smith Chiropractic Practice". This may be important in maintaining the goodwill associated with the practice. The issue may not be very important if the associate has his or her own computer billing system, letterhead and, most importantly, a telephone, all of which allows the associate to establish a "practice within the practice". In any event, the use of a practice name should not be confusing to any patients attending at the Clinic.

TELEPHONE

In the case of a telephone, the options are that the Clinic will provide a telephone or the associate will provide his or her own telephone. The decision will have important consequences to both parties. If the Clinic provides a telephone system to the associate the Clinic can control the goodwill of the practice particularly when or if the associate chooses to leave the practice, together with more control on auditing practice issues concerning such matters as patient appointments. The associate might wish to use a separate system to allow for an easier transition upon a termination of the relationship. Expenses relating to long distance telephone calls will have to be delineated in the agreement.

Time and Space:

Unless otherwise stated in the Agreement, it may be presumed that the Associate has unrestricted access to the premises. If that is the case, it is incumbent upon the Senior Practitioner to ensure that he or she has properly outlined in the Agreement any limitations which should be placed upon the accessibility to the premises by the Associate. The access may relate to time and/or facilities. In the case of "time" the premises may be available on a full time basis or a part time basis. The parties may outline the specific days and time during which the premises are available to either of the Practitioners.

The Associate may also be designated certain treatment rooms which may be accessible to the Practitioner. In any case, the more important issue is whether the accessibility is exclusive to the Associate as compared to those situations where premises are available to a number of individuals at the same time, as in the case of a group practice.

For the purposes of the Senior Doctor, consideration should be given as to whether any additional associates will be brought into the practice at some time in the future. If exclusive use of part of the premises is given to an Associate, the Senior Doctor will be restricted from negotiating the use of the same facilities during the same time period to another associate.

Access to Computers:

While the issue of "computers" as it relates to Associateship Agreements is usually thought of in terms of billings, the issue should also be considered in terms of patient record keeping and future accessibility.

In the case of patient information, is the computer to be used by the Associate? What is the cost of adding the Associate as a designated practitioner on the Computer? Consideration must be given by the Senior Doctor as to what accessibility will be granted to the Associate in terms of the contents of the computer and more importantly what will happen upon a dissolution of the relationship. The parties must remember that the compute software is licensed and not owned by the Senior Doctor.

INSURANCE:

There are various types of insurance which must be considered by the parties to the Agreement, namely: malpractice insurance, occupier=s liability insurance, life insurance and disability insurance.

Malpractice Insurance:

There should be little discussion over the issue of whether the parties will maintain protective insurance. The only issue may be whether the parties will be obtaining coverage from the same company. The importance of this issue arises in those instances where the practitioners have assisted in the mutual treatment of a patient or action is taken against all of the practitioners as a result of an accusation that the practice constitutes a partnership. What the parties will not want is a situation where each of the practitioners is being insured by a different company whose position with respect to the handling of the complaint is being dealt with differently, ie. One company is of the opinion that the complaint should be settled while the other company wishes to vigorously defend the claim.

Occupier's Liability Insurance:

The Senior Doctor should maintain occupier's liability insurance which will deal with matters of potential liability arising from such things as "slip and falls" and "equipment difficulties" such as a table leg breaking and injury resulting to a patient. It is unlikely that malpractice insurance will cover such situations.

It is important that such coverage includes not only the owner/tenant of the premises and the employees and agents of the Senior Doctor but also any Associates at the premises. While this would appear to be a trite issue, at least one instance has arisen in which an Associate was placed in jeopardy as a result of not being included as a "named insured" on such a policy of insurance.

Life Insurance:

If there is to be a provision in the Associateship Agreement dealing with a buy-sell provision, it is imperative that there be life insurance to assist in the transaction. This is particularly important in those associateship agreements where the parties involve an established practitioner and a new graduate. This issue will be discussed in greater detail with the issue of the buy-sell provision of the Agreement.

Disability Insurance:

Since the Senior Doctor will wish to be compensated for his or her investment in the Practice notwithstanding the inability of the Associate to practice due to illness or injury, and in the event that there is a minimum payment being provided to the Senior Doctor, it is important that the parties consider the appropriateness of the Associate maintaining disability and overhead insurance.

Whose Patients are They?

The most often asked question relating to the issue of "patients" is: Who do the patients belong to? While the question may seem inappropriate having regard to the fact that it is improbable that a patient has signed an agreement with the Senior Doctor, and even if the patient has signed an agreement it is unlikely that it is enforceable, professionally or otherwise, the question has some importance in terms of the issue of a non-competition or non-solicitation provision.

As indicated previously, the parties to the associateship agreement may agree to any provisions as long as same are not illegal or contrary to public policy. The issues concerning "patients" usually involve the question of how patients will be designated to a particular practitioner, ie. On a rotational basis if a particular patient is not requested, and secondly what occurs if the associateship arrangement is terminated.

Termination of the relationship, as it affects the patients causes concern to the practitioners. The issue of what happens to "patients" upon termination of the agreement may relate to the matter of a non-solicitation provision, in that a practitioner may agree not to treat or approach a previous patient after leaving the premises. As long as the practitioner is not abandoning the patient, (alternative care is being provided to the patient in accordance with professional requirements and standards) the parties may agree that some sort of compensation is payable by the Associate to the Senior Doctor for each patient that leaves the practice with the Associate after the termination of the Agreement.

In addition, it is important that each doctor maintain a copy of the patient records in the event that both doctors, at some point during the association, have provided care to the patient. As a result, the Agreement may require that the Associate compensate the Senior Doctor for the copying of the patient records upon the termination of the relationship.

Consistency in Technique:

Having regard to the various techniques which may be practised by a chiropractor, ie. Acupuncture, activator, etc., it is important that consideration be given to the issue of whether there should be consistency in the method of practices by the practitioners. A patient should not be subjected to mixed messages relating to practice techniques. A patient should not be told by one practitioner that a particular modality is essential to a chiropractic practice when the other practitioner does not use such a technique or advises the patient that such treatment is not as appropriate as a "hands on" approach. If the practitioners make use of different technique approaches whether such techniques involve something as simple as the use or non-use of modalities, it is important the issue be dealt with in a pro-active sense so that the patients are provided the message that the practitioners wish to disseminate.

Associations:

While this provision may not be a serious matter which requires much negotiation between the parties, this issue may involve the parties considering the consistency between the practitioners as to their approach to practice. As such, if the Senior Doctor requires the Associate Practitioner to maintain membership in a provincial association or other professional group then such a requirement should be set out in the Associateship Agreement.

2008-05-11T06:39:00.001-04:00

QUESTION: RE ASSOCIATES

Which of the following statements relating to associate agreements are correct?

1. A non-competition agreement is only valid if consideration was paid to enter into it.

2. Associates must keep separate patient records.

3. Associates who treat each others patients will be considered to be partners.

4. Buy-sell agreements are not inserted in Associate Agreements.

5. Associate Agreements should set out what happens if either doctor becomes disabled.