Franchise Legal Advice Featuring Blair Rebane of Borden Ladner Gervais

This article published by the Canadian Franchise Association is an absolute must-read for anyone considering the purchase of a franchise.  What is not mentioned in this article is the fact that franchise law differs from province to province.  In British Columbia, for example, you need an especially higher level of legal advice and protection when dealing with Franchisors because there does not yet exist any form of franchise legislation.

One of Mr. Rebane’s wisest pieces of advice from the article is as follows:

“It’s key to get someone experienced in franchising because they not only tell you what the agreements mean, but what is standard and what is not,” says Rebane. “As someone who has drafted and read hundreds of agreements, I can quickly spot atypical clauses and point them out.” He notes that finding a lawyer with years of experience will also save money. “Someone experienced can get through the documents quickly because they know what they’re looking for without having to research it.”

One of our members gave his account of why this advice is so important:

When I bought my brand-name Vancouver coffee franchise, I was naive and assumed that all I needed was a lawyer who understood business.  How wrong was I!  Franchising is a completely different beast.  I chose a very expensive law firm, and I’m sure that my expensive lawyer was experienced in some form of business – he said he was but I didn’t check any credentials -but it wasn’t Franchising.  As a result, I ended up in a really bad deal with clauses that only came to life after I ran the day-to-day business and saw the business practices of the Franchisor.  Perhaps my endless headaches could have been avoided…

 

For more information on this and other related topics, be sure to search our site and the variety of different categories.

 

Coffee Reduces the Risk of Suicide (Really, Sherlock?)

This article in Medial News Today, ‘Drinking Coffee linked to lower suicide risks in adults’

In short, they gave 2-4 cups per day of real coffee to a bunch of professionals. Then, being the sadistic folks they are, gave *decaf* to the other half.

Guess which group had a high percentage of suicide?  I’m sure you won’t be surprised.  That’s right.  The group that wasn’t given blanks.

I think we’d all be six feet under if someone took the caffeine out of our coffee.

The conclusion to the matter is simple:

Decaf should be outlawed and coffee should be covered under our medial plans.

 

 

Is the Main Street Blenz Going Down Forever?

What’s going on at Blenz?

If you didn’t read our article back in June, we talked about how the Blenz on Main Street suddenly closed and then silently reopened.  You can review that article here.

Today someone forwarded us this update from a Craigslist posting today.  Assuming the link may quickly disappear, we have archived the posting as a PDF file right here:

Craigslist commercial real estate ad for possible current blenz space

Is this shop open today?
If it’s open, why is it being advertised to the public to rent?

 

Sue-Go Juice: Did Jugo Juice Juice their Franchisees?

It looks like Jugo Juice is becoming ‘sue-go juice‘.

I had been running my own coffee franchise for nearly two years when I took my first Canada Line trip.  The very first thing I noticed was what seemed like a Jugo Juice at almost every location.  The first thought that came to my mind was ‘Those rascals!’ (of course using much more colour terminology). My only surprise is that there are not more names on the plaintiff list.

As discussed in other VCSFA articles, the Franchisor is in a clear position of power and has the advantage of being the creator of some very hand-crafted – and arguably one-sided – legal documents, namely the lease, the sublease (if applicable) and the Franchise Agreement.  The profile of Franchisee that seems to be preferred by Franchisors is typically, from my experience,  someone not steeped in either franchising, or small business.  They are often accountants, teachers, retail managers, and such, but more commonly – again from my experience – immigrants who may not quite have the language skills to battle on their own should such a need arise.  The point here is that not one of Franchisees I have met over the last few years in the food and beverage business – especially in the Vancouver coffee business – came with the expertise required to make such a huge financial and time investment.  As a result, I have seen devastated marriages and families as the money is bled out of their lives.

The worst part is that British Columbia doesn’t have *any* franchise legislation to help abused Franchisees. In their often nearly bankrupt condition – the time when they most need a lawyer’s help – they are left to fend for themselves.  As in this Jugo Juice case, I’m sure that we will see that a mandatory disclosure document may have saved these Franchisees the need to file this lawsuit.

One will often come across quotes from experts in law and business saying things like, “It’s buyer beware” or, “One has to check the legal documents carefully”.  That’s very easy for someone to say who has no experience in business or business law.  To reiterate, most prospective Franchisees are not coming from a position of being savvy in business – and the Franchisors know that.

Every Franchisee I have spoken to has one thing in common – they trusted the name and the brand and their experience.  They trusted that the Franchisor would not knowingly put them (or allow them) into a bad deal.  The trust that potential buyers put in the brand is so strong that I have witnessed sound-minded, intelligent people sign documents that are so bad they would give you cramps.  I know one gentleman whose position is, “Well, they signed it.”  I disagree with this position.  If it were an independent cafe or restaurant and the people who created the documents were on the same playing field in experience, then I would steadfastly agree.  However, the very nature of a Franchise implies ‘trust’ and ‘success’ and they accomplish this image largely because of the sheer number of locations.  I will never forget a quote from my good friend.  He had just explained how he had received accounting and legal advice *not* to purchase his franchise coffee shop.  The outcome of his decision to purchase was the most devastating series of events I have ever witnessed.  After explaining his situation to someone the person asked ‘Well, why in the world did you purchase, then?”  His response?  I’ll never forget it.  It’s engraved in my mind forever:

I thought surely sixty locations couldn’t all be wrong.

They were wrong, though.  They all signed a similarly one-sided document and were reaping the reward of their folly.  Just like me.

Did Jugo Juice sincerely think – with all their experience in the retail beverage business – that these stores would succeed buried deep within the Canada Line?  Who has time, while rushing to a train, to have a nice, blended drink?  And, let’s just say you do have just enough time to grab a drink and get on the train, it says right here in the Translink Etiquette Guide (item #4) that you should ‘refrain from eating and drinking on the train’. So stopping to get one of these drinks will set you up to be a bad guy in the eyes of your co-commuters.  To me, this sounds like a business disaster waiting to happen. Just to make sure it wasn’t my personal experience and bias clouding my judgement, I started surveying my own customers to find out when was the last time they stopped and bought a nice drink at a transit station and if they would do so in the future.  The results of the mini survey were dismal: they all agreed that they would prefer to go a little further *above ground* and buy their speciality beverage.

Here’s what Jugo Juice gained out of the last few years since their 2010 Canada Line Expansion:

  • Incredible brand awareness: countless hundreds of thousands of people walked by (the key is *walked by*) those Jugo Juice logos
  • Increased probability of selling new stores: “Mr. Prospective Buyer, we are a big, well-known brand. You are buying into a big chain with a winning formula.  Look at the proof – we have stores in most Canada Line stations.”
  • Royalty payments: Did Jugo Juice offer ‘royalty relief’ during their time of suffering or was the full contractual amount continually (and probably automatically) taken from their bank accounts?  This will come to light, I’m sure.

What did the Franchisees – who likely invested all of their life-savings in these businesses – get out of the deal?  A court date?

It will be most interesting to follow this lawsuit and perhaps it will pave the way to better Franchisee-Franchisor relations in BC and ultimately the quick establishment of franchise legislation in our beautiful province.

 

 

 

Bell Mobility Gets Sued by Franchisees: A Deeper look into the Franchisee-Franchisor relationship

The Globe and Mail, on July 29th, published this article about how the Bell Mobility division of Bell is getting sued by its independent dealers.

In short, the Franchisees are suing their Franchisor for squashing their profits and looking out only for their own interests at the expense of the front line troops – the Franchisees.

This is another example of the potentially very challenging relationship a company must face if it chooses the franchise business model.  The motives, agendas, and heart of the Franchisor *must* be like a parent shepherding their flock of less experienced sheep towards a mutually profitable enterprise.  Once it is known (or suspected) that the Franchisor’s main goal is to take as much as possible from their flock and give back little, the relationship will be short-lived and it will be just the blink of an eye before court documents are filed.  Should one be surprised?  Divorce rates are well over 50% and there is much more than money to be lost in a divorce.

It must be noted that not all franchises are being sued.  In fact, we have had Franchisees of a few select coffee franchises claim boldly that they are a) making money and b) satisfied with their Franchisor.  So, it is absolutely possible to have a synergistic and win-win relationship with the Franchisor. However, when trust is breached as in the case of Bell, and if swift and serious action is not taken to repair the breach then all roads lead to the courthouse.

This is serious business, rest assured.

Sometimes Franchisors lose touch with their roots.  They don’t spend enough time in the field getting to know the customers and Franchisees personally.  They don’t know that everything is falling to pieces when a simple, transparent and humble chat would have revealed all. Perhaps the Franchisor would have to consider some compensation for past errors.  Perhaps all it would take would be a grave apology letter or speech from the Directors.  Unfortunately, the impression that many Franchisees get from their ‘shepherd’, as they suffer significant financial hardship, is that they are nothing more than mechanical cogwheels in their money-making machine, held in place by nasty and sometimes abusive contracts.

The Canadian – specifically the British Columbia – franchise world will, in the near future, see the collapse end of bad Franchise ’empires’ as associations like the VCSFA are able to help prepare potential buyers for their investment. We hope that Franchisors who are serious about maintaining a positive brand and all the goodwill their created in the eyes of their customers, will hear the voices of their front-line soldiers and take strong action.

 

 

 

What Would a Union of Baristas Mean to the Coffee Shop Owner?

If you haven’t read all about it, a recent article spoke of a group of well-meaning folk in Halifax would like to create a union of coffee shop employees.  Yep, you read that correctly – baristas – your daily latte slingers.

Unions all started with a good purpose – employees were getting abused and treated unfairly.  These kind of things still happen today.  The people trying to create this niche union feel things could be better.

The Vancouver Coffee Shop Franchisees Association formulated for similar reasons – we saw acts of injustice taking place towards Franchisees of popular coffee shop chains by their Franchisors.  The Franchisees were in a position of vulnerability and subject to gross abuse by means of hand-crafted contracts by skilled lawyers – especially in BC where there is currently no franchise legislation.  In a sense, the VCSFA is a kind of ‘union’ of like-minded people.

Do the baristas need to actually unionize, though?

It was notable to us that Second Cup was mentioned on several occasions as a possible inspiration for the union.  Second Cup is a coffee shop Franchise well known in Canada, specifically around Ontario.  Second Cup has few locations (possibly just one?) in BC and operates primarily in the other provinces, so we are not yet entirely familiar with their specific Franchisor-Franchisee relationship.  That said, we know how the relationships between staff and Franchisee can be strained as a result of financial pressures from operating a franchised coffee shop.  Perhaps this trickled down to the staff?  Perhaps the Franchisees were locked into tricky contracts that pummelled their finances and they started viewing their staff as expenses rather than prized assets?  One can only speculate but it’s important to understand both sides of this story.

The coffee shop business, with it’s high operating costs and usually severe competition, is not well suited for providing high paid jobs – at least not many of them at the same location.  The argument against this position – and it’s valid – is that you can attract ‘talent’ by paying more and offering benefits.  In the coffee business, much like the restaurant business, there is a threshold where eventually paying more is not an option. Hence the gradual acceptance of the tip jar (usually an old stained mug to be precise). In many of the coffee shops we know, a good barista will earn no less than an average of $2/hour extra just from that old stained mug.

If the customer is willing to pay more for their drink there is no reason why a unionized labour force wouldn’t work but we are not convinced that the current market will allow for such a price hike.  One can look towards Australia where tipping is not part of the culture.  Word has it that a barista makes between $12 and $16/hr.  Accordingly, word also has it that the drinks in Australia are priced higher and the volume per cup is much less.

The coffee shop needs to remain a very flexible job as it serves a very unique employment position in our country.  If the Union of Professional Baristas (or whatever they decide to call themselves) is willing to work reasonably with the owners of both franchised and independent cafes, it *could* work but we think issues can still be worked out between the owner and the barista.

Sears Faces Class Action by Hometown Franchisees

In the following article covered by News 680 is the announcement that Sears is now facing class action by its Hometown Franchisees.  The Franchisees are going to go after Sears for failing them in the following ways:

  1. For competing against them in their territories
  2. For lowering local advertising budgets
  3. For dictating conditions
  4. For eroding Franchisees’ profits by corporate decisions that are not in the Franchisees’ favour

The following quote from the article summarizes the Franchisees’ situation:

“We are tired of disappointing our customers because we lack the resources to serve them properly,” – Jim Kay

The VCSFA has heard countless stories of situations where Franchisees – specifically coffee shop franchisees – have been unable to provide the right product at the right price, or, been unable to provide a consistent brand experience to meet the customers’s expectations that the customer is expecting before he or she enters their place of business.

It is paramount that the prospective buyer of an existing or new franchise investigate the ‘atmosphere of support’ experienced by existing franchisees.  A lot of Franchisees could have protected themselves against complete financial ruin, family hardship, or worse – had they only probed the managers or Franchisees of existing stores.  This is *completely free* and most Franchisees, given enough time and in the atmosphere of trust, will divulge all their good and bad feelings they have about the Franchisor which is one of the most valuable pieces of investment information you can obtain.

No matter what kind of franchise you plan to purchase, do your homework before you purchase. Multiple locations is not always an indication of a successful franchise.

As always, don’t hesitate to contact the VCSFA should you have any questions.

 

What do Burger’s and Coffee Have in Common?

The answer to the title of this article is, “They are poster-boys for the franchise business for better or for worse.”

A CBC story about Marufa Ahmed and her husband Mohammed Hashen, caught the eye of a VCSFA reader who forwarded the article to us. Marufa and Mohammed purchased a Lick’s burger franchise (they operate in Ontario), gave up 18 months of their lives, day in and day out, only to have the store taken from them.  Here in Vancouver, the VCSFA has received reports of ex-coffee Franchisees who spent well over half a million dollars (CND$) on their investment and over 60 months of their lives only to lose it in an even worse way than this couple.

What the reader needs to understand is that Franchising is not your ‘own’ business.  In fact, if one were to take a few steps back he or she would realize it is perhaps the furthest thing possible from having ‘your own business’, other than the fact it requires a capital investment and the financial business model is similar.  The time when the Franchisee sooner or later comes to realize this, is when they encounter the triangular relationship between the Landlord, the Franchisor, and the Franchisee.

The ‘relationship’ is held together by hand-crafted and very clever legal documents.  In some reputable franchises, the Franchisor actually works side-by-side with the Franchisee to establish the best possible rent rates.  They are transparent and they work diligently to make sure their front line soldiers (the Franchisees) are comfortable with the decisions. Conversely, in other franchises,  the Franchisor will sign lease documents with the Landlord with ‘unknown motives’ and will keep the Franchisee completely in the dark throughout the experience.

We have a current member who asked his Franchisor for lease details over 36 months ago (he was trying to sell) and the Franchisor refused to provide the information he needed claiming ‘we don’t know what the future holds’.  Then, when the very last legal deadline to begin lease negotiations with the Landlord was upon them, they slowly started the process, but still keeping the Franchisee completely in the dark throughout.  The Franchisee today still has no idea what will happen to his store in the fall because nothing has been provided him on paper and there are less than three months remaining in his lease term.  This is definitely not ‘owning your own business’.

We have just become aware of another location where the Franchisor may have paid above market rents in comparison to other similar businesses in the area, and the Franchisee will now be paying for that decision each month.

Before purchasing a Franchise, it is extremely important that you investigate – in great depth – this relationship between the Franchisor, Franchisee and Landlord.  If something seems fishy, or there is any lack of transparency, run and do not look back.  On the contrary, if you find that all the books are open and all the relationships where you stand to lose or gain are open, then you may have found a good Franchisor.

As always, do not hesitate to contact the VCSFA if you have any questions.  We are always happy to help.

Article by Tony Wilson about Franchise Legislation in BC

Tony Wilson is respected around town (Vancouver) as a Franchise Lawyer which is why when he writes an article in the Globe and Mail, the VCSFA pays attention.  In this recent article “Franchising is Big in BC – So Where’s the Legislation?”, Mr. Wilson talks about the British Columbia Law Institute’s (BCLI) consultation paper on franchise legislation in BC.  He explains BC’s odd position of being one of few provinces that remains without franchise legislation and even brings up an argument that the legislation may not bring notable changes as follows:

But will it [bring change]? If most franchisors in Canada – including those headquartered in B.C. that are selling franchises in Ontario, Alberta, Manitoba, PEI or New Brunswick – must comply with the legislation in effect within the disclosure provinces anyway, it is arguable this will add little more in terms of compliance costs to B.C.-based franchisors. They will simply adapt their FDDs to include B.C. Franchisors in other provinces will do the same.

Thankfully the VCSFA has had the honour of meeting with some of the people involved in this consultancy report and have been able to express our position on the matter.

Although Mr. Wilson is correct that many reputable Franchises are currently operating in compliance with other province’s franchise legislation and that they will be able to quickly adapt to any implemented BC legislation, this doesn’t take into account the fact that there are BC-born Franchises that have been operating without it for years *here in BC* and continue to sell stores.  Take for example the following ‘bigger name’ coffee shop franchises from our Francouver list that are either BC-born or operate primarily here:

  • Bean Around the World
  • Blenz Coffee
  • BG Urban Cafe (formerly “Bread Garden”)
  • Serious Coffee
  • Take 5 Cafe
  • Wave’s Coffee
  • Wired Monk

We have received local Vancouver reports from current and previous Franchisees involving horrific business practices that have resulted in bankruptcies, broken families, or other similar tragedies. In fact, some of the stories are so bad that you would be hard pressed to believe that the events could have possibly taken place in Canada.  Some people have been begging us to bring some of these stories to light and the companies behind them, but we are convinced that by means of the current court systems and eventual Franchise legislation in BC, that nasty people will be unable to continue in their nasty ways.

Do not think that just because a Franchisor is complying in other provinces that they will play nice and follow suit in BC.  We need clear and reasonable legislation right here at home.

In conclusion, let it be known that the VCSFA takes a very strong position *in favour of immediate Franchise legislation* so that it becomes very difficult for Franchisors to commit premeditated acts of business atrocities in our beautiful country, and especially in our province of British Columbia.