CASUAL LEGAL: Would a Rose by Any Other Name Smell as Sweet?

Attention: AMSC Members – Please distribute to all appropriate personnel

Would a Rose by Any Other Name Smell as Sweet?

By Tamara D. Korassa

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

What is true for Shakespeare is not true for the law. The following are a few of the many legal circumstances where having the right name can influence whether a party has an enforceable legal right:

1. Enforceability of Contracts –To have an enforceable legal contract, there must be certainty as to the parties to the contract. Therefore, a contract should reflect the correct legal name of its parties. For corporations, non-profit entities and societies, the full legal name of the entity should be used and the use of trade names should be avoided unless used in conjunction with the legal name. For example 1234567 Alberta Ltd. (the corporation’s legal name) uses the trade name “Rose Consulting”. A contract with this entity should note the party as “1234567 Alberta Ltd.” or alternatively “1234567 Alberta Ltd. operating as Rose Consulting”. A legal name can be confirmed by performing a corporate search at Alberta Corporate Registry. Contracts entered into with individuals should list the full legal name of the individual and it may be prudent to record details as to the residency of the individual and in some cases, their birthdate, in the contract or in the file pertaining to the contract.

2. Land Titles – Charges registered against a landowners title will only be accepted by land titles where the name on the document charging the land matches the name of the owner on title to the land. This is particularly important where the owner of land (individual or a corporation) has changed their name. For example, land titles will not register an agreement charging land, encroachment or other charge where the party on the underlying agreement is identified as Eva Rose (the individual’s married name) but the title to the land is registered to Eva Tulip (the individual’s maiden name) without the title or the agreement being updated to reflect Eva’s true legal name.

3. Personal Property Registry – Having the correct name of a party when one is taking a security interest in personal property of the party is important so that a validly perfected security interest can be registered. The Personal Property Security Act (Alberta) (the “PPSA”) contains detailed requirements about how both debtors and secured parties names must be listed in any registration and timelines for when those names must be updated in the event a change of name becomes known to a secured party. As the requirements under the PPSA are technical and must be complied with to ensure a valid interest, it is recommended that a lawyer be consulted when taking a security interest in personal property.

It is also crucial to have the correct name in naming parties to litigation. Therefore, it is prudent practice to ensure you examine identification, corporate records or land titles documents to ensure the proper name is used in each circumstance. A note to keep in mind - a municipality will want to ensure that they are complying with the Freedom of Information and Protection of Privacy Act (Alberta) when collecting and storing any personal information collected from an individual.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.