The Body Politic Vol. 3 No. 1 February 2005
Contracts:
The Good, the Bad, the Ugly
By Pam Fitch
T
here was a time not so long ago, “…7.7 The Associate understands and Many therapists believe that if they are the
when Massage Therapists joined agrees that upon termination of this contract treating a professional, then their file should
existing massage therapy practices with the Clinic, they are not entitled to carry go with them when they leave a clinic. This
with a nod and a handshake. Rarely was with them any copy or copies of the clients’ is not necessarily true.
there a written agreement, just a verbal files, nor are they allowed to ask for a copy…”1 In one recently reported case, a Therapist
acceptance of the “split” and an indication who gave the 2 weeks notice required by her
of what equipment the therapist needed to contract, was immediately asked for her key
bring to the treatment room.
Elements of a Contract to the clinic and shown the door. She had no
In order for a contract to be binding,
For better or worse, those cavalier days access to client files and was told not to come
three elements must be present.
have gone as the numbers of Therapists has back. Subsequent telephone inquiries to the
1. Offer
increased exponentially. More often than clinic were met with vague comments that she
2. Acceptance
not, Therapists now sign detailed contracts had “moved” but the receptionist was unsure
3. Consideration
and they are binding – unless what is being where. The only person who loses in this cir-
If these three elements exist, then
asked is so outrageous as to be unenforce- cumstance is the client – who cannot depend
either verbal or written contracts are
able. Frequently, the contracts are written in on the Therapist to be available when needed.
acceptable.
“legalese”, which may confound and con- When these scenarios play out, it
Verbal agreements may occur with face
fuse those with little experience in interpret- becomes obvious that the clinic owner is
to face or phone contact.
ing legal clauses. Consequently, Massage concerned that the therapist may take away
Written contracts may take the form of
Therapists may discover upon leaving a business from the clinic. But when the clin-
emails, memos, letters of agreement or
clinic that, what they thought constituted ic withholds client contact information from
formal contracts.
their working agreement, is not reflected in the Massage Therapist, it puts the Therapist
the actual contract they signed. This can at risk of professional misconduct because
jeopardize client relations and future busi- The disposition of client files is often a these actions would be deemed abandon-
ness prospects. contentious and little understood issue. ment of the client.3
This brief article is designed to help Many Therapists believe that if they are the This is one of the most essential issues
you achieve a contract that is in your treating professional, then the files should to iron out before signing a contract. Much
best interests. go with them when they leave a clinic. This like a marriage contract, it is easier to leave
But before we examine some typically is not necessarily true.2 a clinic when the means for separating are
problematic areas, here are the basics The files are always the property of the well understood at the outset of a contract.
on contracts. client. Ideally, the client should be informed How you decide on disposing of files may
There are two main areas that need discus- of the Therapist’s move and asked how s/he tell you a lot about what you can expect
sion and agreement before you sign your con- would like to store the files. Unfortunately, from this working relationship between
tract. One deals with the disposition of files or this does not always happen and clients are clinic owner and therapist.
how the files will be stored after you leave. The
other depends on how and where you are able “The disposition of client files is often a contentious and little understood
to re-establish yourself after you leave a clinic. issue. Many therapists believe that if they are treating a professional,
When considering these issues, pay attention
to the concerns of the clinic owner. If you then the files should go with them when they leave the clinic.
demonstrate that you appreciate and under- This is not necessarily true.”
stand their concerns, you may pave the way
to a healthier appreciation of your profession- all too often left in the dark if a Therapist’s A compromise that many Therapists
al issues. contract is terminated. If a clinic owner is suggest when negotiating this part of their
responsible for a referral of a client to a ther- contract is to suggest that the clinic retain
Disposition of Files: apist, then the owner may feel that s/he all the files but that the Therapist be given
“…7.2 The Associate is hereby prohibited should keep the files and may not pass on full access to the files upon request, in
from contacting any clients through any the forwarding contact information for the order to fulfill med-legal requirements and
means of communication outside treatment departing therapist. This can potentially to contact former clients should the need
time. All communication with the clients shall explode into a battle royale between the arise. If the contract is accepted in good
be done from the Clinic and shall relate strict- contractor and the massage therapist who faith and the contractor trusts that you will
ly to appointment times and re-scheduling…” wants the clients to know where s/he is not try to take business away from him/her,
“…7.3 The Associate promises not to moving in order to fulfill the policy require- then this is often acceptable to both parties.
keep any secondary personal or contact ments of the CMTO.
information in their possession related to The disposition of client files is often a Leaving a Clinic
any client…” contentious and little understood issue. “…8.3 The protective zone of non-com-
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February 2005 Vol. 3 No. 1 The Body Politic
petition is set at 12 kilometers radius from Exclusivity and become an employee. In that case, the
Main Road to Modelbrook…”4 Other Pesky Clauses employer is responsible for legislated employ-
Another way that clinic owners may “…8.1 The Associate’s services are ment standards that require EI, CPP and
attempt to protect themselves from future exclusive and the Associate shall not be Income Tax deductions. The employer must
competition with a Massage Therapist who entitled to enter into contracts for service give reasonable notice for termination and
has left a clinic is to stipulate a “protective with other proprietors without the written may expect loyalty and fidelity from the
zone of non-competition” within which the consent of the Clinic.” employee. At the same time, the employee
therapist is forbidden to work. If the zone is loses the right to claim independent contrac-
reasonable (1-3 km radius), then it is You should not confuse your career tor status so there will be fewer tax deductions
expected that the Therapist will not work unless you are self-employed elsewhere.
within close proximity and become a com-
with your life.
petitor to the original clinic. If the zone is — Dave Barry 1
Excerpted from an actual massage therapist’s contract putting the
therapist at considerable risk of professional misconduct.
greater than 5 km, then this aspect of the 2
CMTO Policy #23 on Record Retention, established 1996, revised
contract may become problematic when “…8.2 In the event that the Associate 2000. Also refer to The Massage Therapy Act, Ontario Regulation
the Therapist leaves. Many municipalities desires to provide any services at any office, 544/94, Part III, Records for legislative guidelines
are less than 5 square kilometers. If a clin- clinic, barbershop, beauty salon, hairstylist, 3
CMTO Policy on Record Retention, established 1996 and
ic in a small town set 5 km as the zone, the nail salon, chiropractor, medical centre, or revised 2000
4
See Footnote 1
Therapist would be accepting not to work hospital or physiotherapy outlet or franchise, 5
See Footnote 1
in the municipality at all. A therapist might garage or bakeshop or any place of activity for 6
Amanda Baskwill, “Independent Contractor or Employee:
choose to sign a contract with a large zone profit or non-profit, the associate shall be Understanding the Difference”. The Body Politic, Dec. 2004, p.11
of non-competition set at more than 10 km banned and prohibited by this contract from 7
Power Point Presentation by Don Burke, partner and specialist
in business law in Kelly, Howard and Santini, Ottawa,
– but if the contract were to go to a court doing so for a period of one year from the date
November 2004.
challenge, then the judge could rule that of release of this contract…”
this is an unreasonable distance and throw Exclusivity draws into question one’s sta-
out the case. tus as an independent contractor.5 If one signs Remember!
Generally, courts are loathe to become a contract as an independent contractor, this Before you sign
involved in contract disputes unless it is should not preclude a Therapist from working on the dotted line…
clear that one of the parties did not have in another location. Requirements for exclusiv- If you want a contract that’s in your
the capacity to make a decision or if the ity are not necessarily wrong but there should best interests, and one that reflects your
contract was accepted under duress. The be significant reason or compensation for professional values, ethics, and stan-
courts might take exception if it appeared such a clause. dards, make sure you consider each these
that “undue influence” was put to someone It is also important that Therapists deter- points carefully.
to get them to sign a contract or if there mine whether the contract is one of an • Seek independent legal advice
appeared to be fraudulent or uncon- employer/employee relationship or one of • Be aware of common practices in
scionable terms. But in the end, the likeli- hirer/independent contractor. If the contract clinic/spa contracts
hood of you taking a clinic owner to court sets out employee expectations such as des- • Read the entire contract before signing
may depend on how much such a settle- ignated hours for lunch or breaks and limits • Be familiar with legislation and
ment is worth. Often, parties to bad con- vacation time, as well as requiring exclusivity CMTO policies
tracts are forced to simply walk away and adherence to an employer code, it may • Ask questions and seek clarification6
because the legal costs are prohibitive. well be in the Therapist’s best interest to
Common Misconceptions about Contracts
1. If a contract isn’t fair, then it isn’t legal. Not true. Unless a Do not assume that a bad contract equals a bad contractor.
contractor asks you to do something illegal, or to go against Just make sure you clarify your mutual understanding of the
your professional obligations and standards of practice, the agreement before you sign.
contract is considered binding. 4. If you get an offer to work, you must sign the contract
2. If I didn’t understand the contract, then I can break it. immediately. Wrong. Reputable clinics will likely expect that
Can you? If you signed the contract, then you are bound to it. you will take a day or two to consider their offer. On the
Take any offer you get to another, more experienced profes- other hand, some clinics may offer you a job and expect
sional such as a lawyer or an accountant for their opinion. If that you will sign the contract on the spot. They may even
you have questions, the time to ask them is before you sign. tell you that you cannot take a copy of the contract away
3. If a contractor asks you to do something that you believe from their office. If that is the case, then it’s important to
goes against your Standards of Practice, then the contractor insist on having 24 hours to think about it. If the clinic owner
should be reported to his/her professional college. Not nec- won’t give you a copy to take away, think long and hard
essarily. If the contractor asks you to do something and you about the clinic’s apparent level of trust. If there is suspicion
are not comfortable complying, then it may be as a result of or wariness at the outset, it will likely not improve the longer
the contractor not appreciating your professional obligations. you work there.
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