It is now more difficult for prosecutors in police disciplinary hearings to prove police officers have engaged in professional misconduct, thanks to a recent decision from the Ontario Court of Appeal.
|An Ontario appeal ruling confirms it’s more difficult for prosecutors in to prove police officers have engaged in professional misconduct. (Photo: Shutterstock)|
In a decision some lawyers are calling “troubling,” the court said the issue has already been decided by the Supreme Court of Canada, and overturned a Divisional Court ruling that declined to give police a special standard of proof in hearings at the Ontario Civilian Police Commission.
“The decision only serves to further inoculate police from appropriate scrutiny,” says Ottawa criminal lawyer Michael Spratt.
While the standard of proof in criminal law is to establish facts beyond reasonable doubt, civil courts, including administrative tribunals, rely on proving claims on balance of probabilities. But Jacobs confirms there is a third, higher standard of proof for police that requires prosecutors to prove their case on “clear and convincing evidence.”
The appeal court said it is relying on a Supreme Court of Canada decision that already acknowledged this third standard of proof for police disciplinary hearings. The Divisional Court erred in not following the SCC’s precedent in Penner v. Niagara (Regional Police Services Board), says the appeal ruling.
The respondents took the position that “clear and convincing evidence” only refers to the quality of evidence generally required to meet the balance of probabilities standard in professional discipline matters. They also argued the top court’s statements in Penner were obiter dicta, or incidental expression of opinion. The appeal court rejected those arguments.
“In my view, we are bound by the Supreme Court’s statement in Penner that the standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities,” wrote Justice C. William Hourigan for the panel.
“I would grant the appeal and set aside the order of the Divisional Court dismissing the appellant’s application for judicial review to quash the decision of the Commission. The matter is remitted to the Commission for further consideration in accordance with these reasons,” he added.
According to Spratt, one of the arguments for creating this special standard of proof for police officers is they are hugely affected by negative disciplinary findings against them, and police officers have important work to do.
But “that seems to me to be a reason to more carefully examine police officers’ conduct and not a reason to insulate police from the normal standards that would apply for normal individuals,” Spratt says.
Personal-injury lawyers who advise their clients to settle for amounts that are alleged to be improvidently low could face malpractice claims many years after the settlement.
|Bryan Rumble says it comes down to what a lay person, not a lawyer, could be reasonably expected to know.|
“When is it reasonable for a lay person to know that she should sue her lawyer?”
The case stems from a car accident in 2002, in which Melody Lauesen was injured. Lauesen then retained the legal services of Fern Silverman, of Goldman Sloan Nash and Haber LLP, to commence an action. In 2005, Silverman advised her client to accept a settlement of $26,169.36.
Lauesen was unhappy with the low amount but chalked it up to a faulty legal system. In 2008, she requested Silverman’s help in getting statutory benefits for her injuries. In 2009, Silverman requested a $500 retainer, which Lauesen says she couldn’t afford. At that point, the solicitor-client relationship ended.
One year later, Lauesen consulted with another lawyer, Joseph Falconeri, who suggested she get a second medical opinion.
After receiving a fresh opinion that her condition met the statutory definition of “catastrophic impairment,” Lauesen was advised by her new lawyers to launch an action against her former lawyers for breach of contract, negligence and breach of fiduciary duty.
At a preliminary motions hearing, the judge threw out the case, ruling that the limitation period of two years — from the point of the settlement in 2005 — had long expired.
The appeal court, however, disagreed. In a unanimous decision written by Justice Kathryn Feldman, the court found that a lay person like Lauesen could not be expected to know that she had a claim until she understood the extent of her injuries and spoke to another lawyer.
“[A] reasonable person with the appellant’s abilities and in her circumstances would not have realized that she had a claim against the respondents, when no one, including the respondent, indicated to her that an error might have been made with respect to the settlement,” writes Feldman.
“It was only with that information, and with the legal advice of her new lawyer, that the appellant first knew or had the ability to know that she had a claim against the respondents.”
Bryan Rumble, the lawyer at Falconeri Munro Tucci LLP who represented Lauesen before the appeal court, says it comes down to what a lay person could be reasonably expected to know — not what a lawyer might be expected to know.
“You have to look at what a reasonable person would do, but that ‘reasonable person’ has to be in the same situation as the person who is the subject of the claim,” he says. “So I guess if that person was a lawyer it would be a different situation.”
Rumble says, while this case doesn’t really develop the law around discoverability, it does prove that cases such as these — where allegedly improvident settlements lead to malpractice litigation — are viable, which could lead to more of them.
It also demonstrates the court’s general attitude around limitation-period defences for lawyers: “I think we can say that courts do not like to let lawyers use litigation periods to prevent claims against them. That seems to be a general trend.”
Update May 13: Clarification: A previous version of this article contained language that implied legal malpractice by Fern Silverman and Goldman Sloan Nash & Haber LLP. The Ontario Court of Appeal’s ruling deals only with the limitation period of the claim, and any other findings are yet to be determined at trial. The article was not meant to convey any finding of legal malpractice against Ms. Silverman or her firm. Legal Feeds apologizes for any misunderstanding.
This week, the Supreme Court of Canada will hear six appeals. The first three are criminal cases relating to search and seizure and reasonable grounds for arrest. The court is also hearing a case involving solicitor-client privilege in Quebec, as well as a curious tax case where the authority increased its own assessment after a taxpayer appeal.
March 21 – Ontario – Wu. v. R.
Charter of Rights: The appellant was charged with drug-related criminal activity. Charges were dropped after the trial judge found the detective investigating the case had no objectively reasonable grounds to request a search warrant. The appeal court set aside the decision and ordered a new trial. The SCC will determine, in an oral hearing, whether there were reasonable grounds to arrest and charge the appellant.
Read the Ontario Court of Appeal decision
Related news story:
Botched case highlights need for JPs to have legal training, Toronto Star
March 21 – Alberta – R. v. Villaroman
Criminal law: The respondent brought his computer into a repair shop, where a technician stumbled upon child pornography hidden in a music folder. The technician called the police, who got a search warrant to inspect the machine. The respondent argued at trial that his right to be protected from unreasonable search and seizure had been violated. The trial judge rejected that argument, but the appeal court quashed the conviction. The SCC will determine whether Charter protections are applicable in such circumstances.
Read the Alberta Court of Appeal decision
Related blog post:
Mere existence of illegal content on a portable device is insufficient to ground a conviction for possession, Canadian IT Law Association
Criminal law: The appellants were involved with the Hells Angels. They provided protection for a cocaine distribution business. At trial, the appellants successfully argued that their role did not involve the trafficking of cocaine. The appeal court substituted the acquittal for convictions in both cases. The SCC will review whether the appeal court erred in conflating the appellants’ activities with drug trafficking.
Read the Alberta appeal court decision
March 23 – Alberta – Edmonton v. Capilano Shopping Centres
Administrative law: When the Capilano Shopping Centre was assessed, for property tax purposes, at $31.3 million, it appealed to the Assessment Review Board for the City of Edmonton. Beyond merely rejecting the appeal, the review board’s assessor used vague language in the Municipal Government Act to increase the assessment to $40.8 million. On appeal, the court found the review board could only consider the appeal before it, and could not “cross-appeal” its own assessment. The SCC will provide interpretive clarity to the act.
Read the Alberta appeal court decision
Related blog post:
The return of context in the standard of review analysis, University of Montreal
March 24 – Quebec – Chambre de l’assurance de dommages v. Aviva Insurance
Legislation: The appellant is a regulator in Quebec that was pursuing an ethics inquiry against a claims adjuster working for the respondent. As part of its investigation, the regulator demanded certain documents that were withheld by the claims adjuster due to solicitor-client privilege. On appeal, the court rejected the regulator’s assertion that solicitor-client privilege, which serves private interests, cannot be used to stifle an inquiry with public interests at stake. The SCC will determine whether the relevant provincial legislation affords solicitor-client privilege.
Read the Quebec Court of Appeal decision
Related blog post:
Litigation privilege given same protection as solicitor-client privilege, Law in Quebec
A daughter who alleges she was disinherited by her father for having a mixed-race child will seek leave to appeal from the Supreme Court of Canada, after the Ontario Court of Appeal earlier this week upheld testamentary freedom in supporting the man’s will.
|The appeal court says neither human rights codes nor the Charter are sufficient to override someone’s final, private, legal bequest. (Photo: Shutterstock)|
Verolin claimed in her affidavit that her relationship with her father was close, and only soured after she told him that she was having a child fathered by a white man. Eric was emphatic over the years that her “white bastard son” would never set foot in his house.
When Eric died in 2013, at age 71, he left a will that bequeathed his entire estate, worth $400,000, to his estranged daughter, Donna. The will was unambiguous: “I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communication with me for several years and has shown no interest in me as her father.”
Last year, Superior Court Justice Cory Gilmore set aside the will, finding that the “clear and uncontradicted” reason for disinheriting Verolin was based on a racist principle, and that the man’s will “offends not only human sensibilities but also public policy.”
That decision, however, was struck down Tuesday by the Ontario Court of Appeal, which found in Spence v. BMO Trust that testamentary freedoms were absolute — that neither the Human Rights Code, nor the Charter, nor public policy arguments are sufficient to override someone’s final, private, legal bequest.
“The court’s power to interfere with a testator’s testamentary freedom on public policy grounds does not justify intervention simply because the court may regard the testator’s testamentary choices as distasteful, offensive, vengeful or small-minded,” the decision states.
The decision also notes that, while third-party evidence points to an uncontradicted racist motive, the will itself contains no racist statement, and inferring one would open the floodgates to challenges by disappointed beneficiaries.
Estate lawyers will no doubt view the appeal court’s decision as a big win that protects the interests of their clients. Justin de Vries, counsel for the respondent, declined comment beyond saying that his client was content with the decision.
Plaintiff’s counsel Michael Deverett, meanwhile, is currently preparing leave material for submission to the SCC. He’s hoping that the high court will see things differently.
“The Court of Appeal gave its reasons, and they gave case law to support it, and they said were not going to allow the floodgates to open. I get that. It’s just a question of whether or not the Supreme Court of Canada will agree.”
While the appeal court suggests that legal and unambiguous bequests are sacrosanct, Deverett doesn’t believe an expressly racist will could survive a court challenge. And he says there are examples where human rights protections against racism have trumped private economic freedoms.
Deverett, for example, points to an article written by none other than Chief Justice Beverley McLachlin entitled “Racism and the Law: the Canadian Experience,” in which McLachlin cites the 1939 SCC decision Christie v. York.
The case involved Fred Christie, a black man who was denied service at the York tavern after a Montreal Canadiens game. Christie’s lawyer argued that Quebec’s laws forbade such discrimination, but the Supreme Court at the time was of the view that private commercial freedoms were absolute.
The 1939 decision states: “ . . . the general principle of the law of Quebec is that of complete freedom of commerce. Any merchant is free to deal as he may choose with any individual member of the public. It is not a question of motives or reasons for deciding to deal or not to deal; he is free to do either.”
The point being, times have changed.
“If that were to happen today, there would be no question that that would not be sanctioned by the courts,” says Deverett. “I think that maybe it’s time for our view of testamentary freedom to be re-evaluated by the Supreme Court.”
Legislative intervention from Ontario’s Liberal government could also provide a useful avenue for reform in testamentary law:
“The thing is, we don’t have human rights legislation for wills,” says Deverett. “Legislation says you can do this, you can’t do this, you can do this, you can’t do this. And it’s very well set out with strict guidelines. . . . That’s an important point that the Court of Appeal was addressing, you know, that they’re not about to open a new avenue without direction from the legislature.”
One Toronto neighbourhood may be able to find some peace this holiday season after the Ontario Court of Appeal finally settled its property dispute — and along the way created some novel legal interpretation.
|The lane between homes on Brock Street and Cunningham Avenue. (Photo: Google Earth)|
The laneway, however, was being used by the owners of at least three homes sitting adjacent to the land on Brock Street. The Brock homes were situated near a rail overpass, so cars were unable to stop outside. Their only access to their homes was via the laneway.
This unfortunate example of poor city planning led to the nasty neighbour spat. In 2013, the Cunningham owners — having found no explicit right of way in their deed for at least 40 years (the statutory limit for title investigations) — decided that they were within their rights to block access. They erected a pole in the middle of the lane.
The Brock owners, left without access to their homes, applied for an injunction against the Cunningham owners. As it happened, the deeds for the Brock homes did refer to a right of way created prior to 1960, even though the stipulation had vanished from the Cunningham chain of title. The application was granted, leading eventually to last week’s showdown at the Court of Appeal.
On Friday, the homeowners on Brock Street secured their laneway, with the OCA ruling that historical right-of-way claims that had fallen off the registry were exempted from a 40-year expiration date, as long as the right way was being used and enjoyed continuously.
“Fairness suggests that a right of way that was once registered and continues to be openly enjoyed and used should be exempted from the operation of the 40-year rules set out in Part III [of the Registry Act],” wrote Justice Janet Simmons on behalf of the court. “This must have been what the Legislature intended — and is what a proper interpretation of [the act] requires.”
“In my view, however, to . . . qualify for the exception . . . a claimant must show open enjoyment and use continuously from the expiration of the 40-year expiry period . . . “
James Morton, who represented the appellant Cunningham owners, says the court’s pronouncement on historical, unregistered rights of way will have significant bearing on land disputes in urban centres in Ontario.
“It does suggest that land title is not as absolute and fixed as I would have thought,” says Morton, “and it certainly suggests that the 40-year search rule is not as fixed, which is problematic to some degree for lawyers because,” he sighs, “it means you cannot rely completely on the . . . search documents.
“It’s certainly going to pose a problem for land title insurers who are going to have to somehow recognize that there can be these unregistered and effectively unfindable interests in land.”
Asked whether the court has conflated the concept of a land “claim” (which until now had to be explicit) and a “right” (which is implicit), Morton acknowledges that it may very well have done so — although not without due consideration.
“I do think it’s fair to say that they conflated the two,” he says, “but they conflated them intentionally. To my thinking, it creates some uncertainty in the land title system, but the court is balancing uncertainty with fairness, and they came down with the view that fairness required a little bit of uncertainty.”
Litigator Joe Groia was back in court this past week to challenge the Law Society of Upper Canada’s findings of misconduct for incivility against him following the Bre-X scandal some 15 years ago.
|Groia, who is now an LSUC bencher, spent three days this week in the Court of Appeal making further arguments in his civility case.|
Groia’s counsel argued that the penalties levied against him were arbitrary, lacked “meaningful explanation” and “intelligible reasons” and asked they be overturned.
They further argued that in denying his appeal earlier this February, the Divisional Court erred when it when it failed to consider that Groia’s conduct was never criticized by the trial judge and in applying a new misconduct test in making its determination.
“The Divisional Court established a new test for when uncivil conduct amounts to professional misconduct. This test is satisfied when such conduct ‘calls the administration of justice into disrepute,’” wrote Groia’s legal team, led by Earl Cherniak of Lerners LLP, in its factum.
“The new but vague test, and its application by the Divisional Court, creates an unreviewable prosecutorial discretion in the hands of the LSUC, and results in uncertainty and lack of meaningful guidance for lawyers, who are now at the whim of their regulator.”
The case has prompted an ongoing debate around what exactly constitutes incivility in the courtroom. It has turned into a tug of war on where to draw the line between the need to allow for zealous advocacy by fearless counsel and the importance of civil communication in the courtroom.
Groia’s factum said that question, as well as the question of who determines the boundaries — a trial judge or the regulator — are at the core of the appeal.
“The result in this case is a tragedy for the public interest, the legal profession and for Mr. Groia. If his conviction is allowed to stand, trial judges will no longer truly control the proceedings before them, lawyers can no longer rely on how trial judges choose to conduct a criminal trial, and clients can no longer rely on their lawyers to speak their minds freely in open court, for fear that they too will be prosecuted by their regulator,” the factum of appeal states.
“Respect for judges, lawyers and the dynamics of a criminal trial will have given way to the LSUC’s ultimate control of the trial process.”
Groia’s tone and behaviour during his late-1990s defence of John Felderhof, the former Bre-X Minerals Ltd. vice chairman, were the basis for the finding of professional misconduct against him. Following a June 2012 disciplinary ruling, the LSUC suspended Groia for two months and ordered him to pay $250,000 in costs. He appealed and in November 2013, the society’s appeal panel cut Groia’s suspension in half, but agreed with the hearing panel that his behaviour during the Bre-X trial was out of line. It also reduced the costs award against Groia to $200,000.
He appealed to the Ontario Divisional Court in February of this year, but that was dismissed with $30,000 in costs ordered paid to the LSUC, and he turned to the Court of Appeal to challenge that ruling. In the Divisional Court hearing, a request by the LSUC seeking the original penalties against Groia be reinstated was also dismissed.
At the court of appeal, the LSUC, led by Thomas Curry of Lenczner Slaght Royce Smith Griffin LLP, argued that while a lawyer has “a duty to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case” it must be done “by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing.
“Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality, because, unless order is maintained, rights cannot be protected,” the LSUC stated in its factum, requesting the court dismiss the appeal with costs.
In terms of the test used by the divisional court, LSUC’s counsel argued it was “inconsistent with the weight of authority concerning the deference owed to the regulator engaged in a line drawing exercise such as this.”
“There was no basis for the Divisional Court to interfere with the formulation of the test for courtroom incivility on the record before it. The Appeal Panel was owed deference on the point.”
A list of interveners, including the Advocate’s Society, Attorney General of Ontario, Canadian Civil Liberties Association, the Canadian Defence Lawyers Association, Ontario Crown Attorney’s Association, and the Ontario Criminal Lawyers Association participated as well, requesting the court reverse the decision. Although they too disagree on certain points of the civility debate.
The AG, OCAA, and CDL agree the new misconduct test from the Divisional Court is an “unworkably high standard.” The TAS and CCLA stand by the test, although the CCLA argues it was misapplied in Divisional Court.
“The important issues that divide the parties and the interveners require adjudication by this court,” the interveners stated in their reply factum. “However, it is Mr. Groia who has paid a terrible price in this case: by his financial commitment to continue to defend Mr. Felderhof long after his ability to pay legal fees ran out; in the damage to his reputation; and by placing his career and livelihood in jeopardy to mount a defence to the charges when the LSUC argued that it was an abuse of process for him to even try to do so.
“By defending himself, he vindicated the right of all trial counsel to defend themselves from similar LSUC allegations of incivility and abuse of process. This conviction truly cries out for reversal,” the interveners stated.
Media representatives and counsel for the LSUC declined to comment as did Groia and his counsel until there is a decision.
The Ontario Court of Appeal has set the stage for a major ruling on bankruptcy protection after striking down a lower-court decision that sought contempt proceedings against a defendant who had already declared bankruptcy.
|Michael Jaeger says federal provisions under the BIA offer broad protections from creditors as well as unnecessary court proceedings.|
The case stems from a $105,000 award for which the defendant was liable to the plaintiff. A couple of years later, the plaintiff, who had still not been paid, sought examination of the defendant’s finances in court.
The defendant failed to show up for the first examination and then declared bankruptcy one day before the second examination. The plaintiff filed a motion for contempt, and months later the judge issued his decision that, regardless of the bankruptcy, the contempt motion should proceed.
In his decision, Superior Court Justice John Harper wrote:
“I am of the view that the motion for contempt before me is one that goes directly to the issue of the court’s ability to enforce its judgments. The order I made was an order that called for the defendants to do certain things. Whether he did them or not cannot be caught up in his choice of the timing of his filing for bankruptcy.”
Defence counsel appealed the motion, insisting that the Bankruptcy and Insolvency Act provides for an automatic and all-encompassing stay of proceedings, and that only compelling reasons, such as allegations of fraud, can be used to lift the stay. Here, no such allegations were presented.
Plaintiff counsel argued that the decision to set a date for a proceeding was not a “final” decision but rather an interlocutory one, and therefore could not be appealed. Defence counsel, meanwhile, insisted that his client’s bankruptcy was being ignored and that he was being denied a substantive defence.
The OCA last week sorted things out, siding with the defendant. In its decision, court writes:
“ . . . the only question before Harper J. — and it was a question of law — was whether Houghton could still be liable for contempt though he had declared bankruptcy. Harper J. decided that question. . . . Houghton has potentially been deprived of a right or defence that would have ended the proceedings against him. For this reason, Harper J.’s judgment is a final order.”
Having determined that the appeal can proceed, the court will now turn its attention to the merits of the appeal, and whether contempt proceedings can commence against a defendant who has already declared bankruptcy.
Defence counsel Michael Jaeger says the Superior Court judge may have been annoyed at his client’s refusal to obey court orders, but federal provisions under the BIA offer broad protections not only from creditors, but from all unnecessary court proceedings.
“Section 69 [of the BIA] says no creditor has any remedy against an insolvent person or shall commence or continue any action, execution or other proceeding,” says Jaeger. “I’m saying that’s really wide, and you can drive a bus through it, and it applies to contempt proceedings. It’s any remedy.”
While Jaeger says he can understand the judge’s desire to have orders obeyed, he argues that the authority of the court in civil matters stems from the pursuit of a financial award, which bankruptcy has now taken completely off the table.
“He’s got no assets,” says Jaeger. “So the practicalities of being able to ask him questions . . . I ask, to what end? If they were asking questions because he defrauded their client, that might be a different thing, for which you would need leave [to lift the stay]. But there’s no allegation of fraud here.
When Asad Ansari was sentenced in October 2010, he had “no reason to appeal it,” says his lawyer John Norris.
|John Norris says he is seeing more clients looking for help as they learn about the possibility of losing their citizenship due to convictions and sentences.|
But in 2014, nearly four years after his sentencing, the federal government sent a letter to Ansari notifying him his citizenship may be revoked in accordance with the newly passed Bill C-24. The controversial bill, passed under the government of Stephen Harper, gives the minister of immigration powers to strip Canadian citizenship from dual citizens convicted of terrorism and sentenced to at least five years in prison.
Ansari had long missed the deadline to appeal his sentence, but yesterday, the Ontario Court of Appeal extended that deadline due to the retroactivity of the citizenship law, which Ansari was not aware at the time of his sentencing.
“. . . The collateral consequences — loss of Canadian citizenship — are of such magnitude as to render it unjust to deprive the applicant of the opportunity to seek a variation of the sentence to remove himself from the reach of the amendment,” the unanimous bench said, adding “the interests of justice favour the extension” of the appeal window.
“To refuse the order, a substantial injustice may occur, wrought by legislation not in force or within the reasonable contemplation of any of the participants in the trial process, but made retrospective by an enactment passed years later,” said the court.
Ansari was convicted of participating in the activities of a terrorist group. He was found to have gone camping with members of the Toronto 18 near Washago, Ont., and participating in marching and simulated combat exercises, some of which were videotaped. Later, he helped produce a video for the leaders of the group to use for recruitment purposes.
Ansari already tried, unsuccessfully, to appeal his conviction.
“If his conviction had been overturned, then that would [have been] the end of his exposure to potential citizenship revocation. But the act also requires that you’ve received a sentence of five years or more for that conviction,” says Norris. “So even if that conviction stands, if he only deserved a sentence of less than five years, that would also get him out from under the provisions.”
Norris says his practice is seeing more and more cases of clients looking for legal help as they learn about previously unknown immigration and citizenship consequences of their convictions and sentences.
“This ruling isn’t going to encourage people to do one thing or another; it’s these other changes [in the law] that are giving people reason to come to court,” he says. “And now this ruling gives a very nice framework for analyzing whether they should get an extension or not.”
Norris says his client is also challenging the constitutionality of Bill C-24 at the Federal Court. It’s unclear what would happen to that challenge, given the Liberals’ election promise to repeal the law.
“If that happens, then of course there would be no reason to pursue the constitutional challenge but until that happens, that challenge remains before the Federal Court,” he says.
The Ontario Court of Appeal has rattled the title insurance industry with it’s ruling last Friday that the standard form insurance contract covers a homeowner who later learned that a support wall had been illegally removed by the previous owner, contrary to the building code and municipal approval.
|Court ruled defects from renovations that don’t meet code or have municipal approval are covered by title insurance policies. (Photo: Shutterstock)|
“Title insurance is probably, at this point in time, one of the most widely distributed insurance policies in the country,” he said, noting that almost every home purchaser now obtains both title and fire insurance coverage.
However, he said, the scope of what title insurance actually covers remains a bit of a mystery, since there is a lack of case law on the topic in Canada.
“I think there’s been a major gap in the law on title insurance, given the incredibly widespread use.”
This case, he says, casts light over that shadow.
Real estate lawyer Bob Aaron added that the case is a “big win for homeowners.” He said it means if “there was illegal work done in the house that didn’t comply with the building code, the title insurance policy would cover a post-closing work order from the city.”
In MacDonald v. Chicago Title Insurance Co. of Canada the MacDonald homeowners bought a Toronto, multi-story home in 2006. In 2013, they learned a load-bearing wall had been removed during renovation work undertaken by the previous owner without a building permit. That made the second floor unsafe.
The city issued a remediation order, requiring the couple to temporarily support the floor and they claimed under their title policy.
The couple brought a summary judgment motion, but the lower court judge ruled their title policy did not cover the situation and held their title was unaffected by the illegal construction because the house still remained marketable, albeit not worth what is was before the defect was discovered.
He noted the city work order was not registered on title, and he granted summary judgment in favour of Chicago Title.
On appeal, however, Justice C. William Hourigan disagreed with the motion judge’s interpretation of the contract. Hourigan said the motions judge acted on his “own volition” when he held that for a municipal work order to affect an owner’s interest in their property it must be registered on title.
Municipal work orders, he wrote, “are a defect that can only be discovered by what are commonly known as ‘off-title searches.’”
LAWPRO, which intervened in the case, provided evidence involving a 2005 agreement between it and the major title insurers, where the real estate transaction levy would be waived in exchange for title insurers releasing Ontario lawyers for any claims arising under a policy and indemnifying lawyers against any settlements or judgments involving title insured transactions.
LAWPRO’s affidavit stated it understood the definition of title meant more than claims and impediments registered against title, but included defects that could only be discovered through off-title searches.
LAWPRO argued if the lower court ruling wasn’t overturned, then its agreement with title insurers would not cover claims that arose off-title and LAWPRO would bear the responsibility even though it waived the transaction levy.
Hourigan agreed, noting that “the restrictive scope of title insurance contemplated by the motion judge would cause chaos in the real estate bar as, no doubt, purchasers of title insurance throughout the province has instructed their solicitors not to conduct the off-title searches on the understanding that such defects were covered by their title insurance.”
The result, he said, was an “unduly restrictive interpretation of the coverage, and that amounted to an error of law.
Hourigan cited the section of the policy dealing with unmarketable title and disagreed with the motion judge’s finding that the homeowner’s title was not affected, because they could still sell their house.
“The fact that someone might be willing to purchase a dangerously defective building does not mean that it is marketable under the title policy.”
He noted that the marketability provision needed to be construed broadly under insurance contract interpretation principles.
Hourigan said the danger flowed directly from the previous owner’s failure to obtain the necessary municipal approval for the changes, and that failure made the property unmarketable within the definition of the title policy.
He awarded the couple their costs for the appeal and the earlier motion application.
When reached, Robert Dowhan, counsel for Chicago Title had yet to discuss the case with his client and declined to comment.
For his part Tighe said he argued that “title is the legal snapshop of what you house is,” and he believes the case could have far-reaching impact.
“There’s a lot of properties that have been renovated or built that have all sorts of issues. It’s very, very common. The question becomes whether the construction or building issue is a title issue.”
Aaron added that he didn’t think the Supreme Court of Canada would give leave to an appeal. In fact, he said, the MacDonald ruling “changes a lot of litigation in progress. There might be a lot of settlements coming up pretty quickly.”
As my first blog, I thought about writing a piece on some interesting court decision, such as the Nov. 25 ruling in Anderson v. Attorney General of Canada, where the Supreme Court of Newfoundland Trial Division found the federal government committed an abuse of process in a class action involving five schools, dormitories, and orphanages in Newfoundland and Labrador. After all, it’s not often that the federal government is found to have committed an abuse of process.
The actions, being prosecuted by a group of firms, including Ches Crosbie Barristers and Kirk Baert, of the Ontario firm Koskie Minsky LLP, are based on negligence and breach of fiduciary duty.
The feds got their knuckles wrapped by Justice Robert Stack after counsel for the attorney general sought to make a claim apportioning damages for any fiduciary duty among various parties. However, Stack took great exception to that, noting that the Crown raised the matter in an earlier decision in the case involving Justice Gillian Butler and lost.
He called the Crown’s position nothing more than a “collateral attack” on Butler’s ruling, and an attempt to re-litigate the matter, which amounted to an abuse of process.
“The ship of apportionment of fault for breach of fiduciary duty set sail two years ago. It is not returning,” he wrote when ruling that the federal government pay for the costs of the portion of the application dealing with the apportionment question.
Then I thought, I could also write about one of the many upcoming cases before the Ontario Court of Appeal or the Supreme Court of Canada, which lawyers would find interesting, such as CIBC Mortgages Inc. v. Computershare Trust Co. of Canada, an important mortgage fraud cause dealing with priorities, which is currently before the Ontario Court of Appeal.
Of course there is also pending legislation, like bill 5, the Ontario respect for municipalities act (City of Toronto), which if it ever saw the light of day — it likely won’t, as least in the current form — would shake up municipal planning in Toronto.
Or there are the growing number of legal initiatives at the federal level following the election of a new government, from dismantling the Harper’s tough-on-crime agenda to climate change.
But instead it struck me as I was scrambling looking for topics, that very little has changed in the way that news is generated since I first sat in the Law Times editor chair in January 1990, when the publication launched.
This January marks the paper’s 26th birthday. At the time, Ian Scott was the attorney general, Charles Dubin was the chief justice, and a typical Bay Street law firm was a few hundred lawyers. The news of the day was regulation of paralegals and the Patti Starr affair — or Pattigate — involving a Queen’s Park Liberal operative who was charged and convicted over political donations dominated headlines. National firms were still a few years off, following the Black v. Law Society of Alberta ruling from the Supreme Court of Canada in 1989.
Fast forward to 2015 and we have the Duffy Affair, paralegal regulation is still relatively in its infancy, and the chief justice is now George Strathy and attorneys’ general of different stripes continue to do their thing. Law firms are bigger than ever and growing.
News, however, is still generated by following rulings, watching legal developments, and talking to lawyers for their insights and gossip, which, fortunately, is still plentiful.
What has changed tremendously, during the past 25 year however, has been the business of both law and journalism.
Law firms get bigger, yet access to justice seems more remote now than in the past. Small- and mid-sized firms struggle with increasing rules and regulations impacting governance. Billable hours are getting squeezed and the public can barely afford lawyer’s services.
Meanwhile, on the journalism side, the business model is essentially broken and publications around the globe are scrambling. Trade publication like ours, I would argue, are in better shape than much of the mass media.
We cater to an audience that needs our information and has the means to pay for it. However, one need only look at the rash of layoffs in the media to see the carnage. Hundreds of journalists in Canada and thousands in the U.S. have been canned from daily papers, television, and radio as companies cope with the shifting advertisement climate. Skinny issues, thin sections are the rule, not the exception. Some publications, such as La Presse, are cashing out of their weekly paper versions on which they founded their operations. Others will follow suit.
The biggest change, then, in the past 25 year for me has been technological, and technology is at the root of much of the change we see sweeping both professions. For example, this blog platform in which I write. It didn’t exist. Today, it is the future, like it or not.
It’s certainly liberating. We can deliver information quicker, faster, and more precisely than we could in the past. For a profession that relies heavily on information flow and knowledge, that is a positive. However, in a profession that is slow to change, there are growing pains, as an older generation of lawyers adapt to new methods of conducting business.
By the same token, digitization of information has created enormous legal opportunities.
Privacy law was embryonic in 1990, and today drives the growth of some practice areas. Technology companies are the darling of Bay and Wall streets, and the investment banks and law firms that serve them. Crowdfunding presents business challenges and opportunities to clients and law firms. Social media law is growing by leaps and bounds. The Internet has also spawned much litigation, as the criminal justice system comes to grip with the darker elements such as online pornography and drug dealing.
In fact, I read an Ontario Court of Appeal case earlier this week, R. v. D’Souza, where police busted a young man who posted an ad for drugs on Craigslist, a popular online marketplace, similar to classified advertisements that used be the bread and butter of many newspapers. Selling drugs through an online classified ad sounds crazy, but this is how youth conduct business in 2015.
Incidently, the appeal court agreed that the youthful offender didn’t deserve a criminal record and set aside the conviction and $750 fine, imposing, instead, a conditional discharge.
As Bob Dylan sang, “Times they are a changin’.” I’m just trying to keep up.
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