HLA Journal June 2020
Personal Injury News
Andrew Spurgeon, Ross & Mcbride
Most tortious conduct occurs when one person literally bumps up against another. In an era of social distancing – at least at the moment – it is apparent that we are not presently in a tort-rich environment. There are fewer cars on the road and pedestrians in the streets; there are fewer opportunities for people to collide. Regardless of this state of affairs, the law marches on and we must keep abreast of it.
When Jurors Do Their Own Legal Research
One case I would like to discuss is the Court of Appeal’s decision in Patterson v. Peladeau1 , on appeal from a decision of Justice Hackland2, concerning a motion for a mistrial based upon the actions of a juror.
The circumstances of the case were that the plaintiff Patterson sued the defendant, Peladeau, because of injuries Patterson suffered in a car accident. Mr. Patterson had a van which ran off a country road on black ice. He left the scene and walked to his near-by home to get another vehicle, a 4x4 with a chain, to pull his van out of the ditch. When he returned it was still dark out. The Plaintiff parked his 4x4 in such a way that he was facing north bound while parked in the southbound lane of the road. His headlights and hazard lights were on. The plaintiff got out of the 4x4 to connect the chain to pull his van out of the ditch.
At that point, while the plaintiff was near the driver side of the 4x4, the defendant was travelling at the speed limit southbound on the road. The defendant did not realize that the plaintiff’s 4x4 was parked in the southbound lane, facing the wrong direction. At the last minute, the defendant realized the 4x4 was in his lane and he swerved rapidly to the right. Unfortunately, the defendant struck the plaintiff, causing his serious injuries.
The matter went to trial in Ottawa. The evidence was presented over a period of eight weeks and the jury deliberated for five days. During the course of deliberations, the jury asked a question which suggested that one or some of the jury members had access to extrinsic evidence.
Counsel for the plaintiffs moved to strike the jury and proceed with the remainder of the trial with a judge alone. The judge then questioned the foreman of the jury who admitted that after the first day of deliberations he went home and did some internet research. He found the Ontario e-Laws website and located the fault determination rules which are in RRO 1990, Reg. 668. He admitted to sharing them with the rest of the jury. The foreman also indicated to the judge that this was the full extent of his outside investigations. Moreover, he advised the judge that as far as he was aware no other juror accessed information on the internet related to the case.
Based on the answers provided by the Foreman to the trial judge, the trial judge dismissed the plaintiff’s motion to strike the jury and chose to issue a correcting charge and admonition to the jury which contained a direction:
That the Regulation was irrelevant;
That the jury was to disabuse their minds of it; and
That the jury was to refrain from any further internet research pertaining to the trial.
The jury returned a verdict of 27% liability on the part of the defendant and a 73% attribution for contributory negligence. Given the assessment of damages, the trial judge awarded judgment to the plaintiffs in the sum of $309,032.34.
After the verdict, the plaintiffs moved for the judge to declare a mistrial based on the foreman’s internet search. The trial judge denied the motion. The plaintiff appealed.
On appeal, the court concluded that the trial judge conducted a proper inquiry as to the scope of extrinsic information obtained by the foreman of the jury. It was appropriate and acceptable for the trial judge to believe the foreperson’s answers. This point was particularly compelling given the fact that had the jury actually followed the fault determination rules set out in RRO 1990, Reg. 668, the jury would have found 100% fault on the part of the plaintiff and he would have not enjoyed any recovery whatsoever. There was no basis for the court of appeal to intervene. The appeal was dismissed.
Experts, Experts and More Experts!
Last November, the Trial Lawyers Association of B.C. won a major case against the Attorney General of British Columbia concerning the AG’s attempt to limit any party’s (primarily plaintiffs’) capacity to adduce expert evidence in car accident cases.3 The AG of BC passed an amendment to the Rules of the Supreme Court of BC limiting the number of experts and expert reports in a trial by a party to three. This of course was promoted as a means to reduce costs and achieve access to justice. It did not go un-noticed by the Trial Lawyers of BC that the limit on use of experts was limited to car accident cases and coincidentally, the Attorney General – responsible for passing the regulatory change in the Rules of Court – was also the ministry responsible for the Insurance Corporation of British Columbia (ICBC) which is the primary payer of damages in car accident cases.
After hearing the application Justice Hinkson of the BC Supreme Court held that the rule changes could not stand because
The regulatory rule changes had the effect of changing the substantive law of evidence relating to the proof of facts which the underlying legislation did not grant the Lieutenant-Governor in Council to do; and
The rule violates the jurisdiction of the court to control its own process.
The Attorney General of BC has chosen not to appeal, so this decision stands. I found this case to be fascinating because it touches on the basic problem in law of proving facts, which is the biggest driver of expense in litigation.
In an increasingly complex world of an exponentially growing body of human knowledge, the challenge of proving facts in litigation becomes more and more challenging, partly because the chasm between the concepts of truth in science and truth in law is yawning wider and wider all the time. In science, comprehensiveness is key. In law, the adversarial nature of inquiry values victory rather than comprehensiveness. The BC Court’s decision to strike down the hard and fast three-expert rule is a victory for comprehensiveness, but it leaves unaddressed the intractable problem of the economic price of proving facts as a barrier to justice.
For those of you who have some time on your hands in this era of social distancing and an interest in the intersection of law and science and the problem of proving scientific facts in an adversarial inquiry, I commend to you Professor Susan Haack’s book, Evidence Matters: Science, Proof and Truth in the Law, published by Cambridge University Press.
Andrew J. Spurgeon is a partner at Ross and McBride. He is also an Elected Bencher of the Law Society of Ontario, and the Chairman of the Board of Directors LawPRO, which is the sole insurance company providing primary liability coverage to all 28,000 lawyers in private practice in Ontario.
He can be reached at:
Ross & McBride
1 King St W
1 2020 ONCA 137
2 2018 ONSC 2625
3 Crowder v. British Columbia (Attorney General), 2019 BCSC 1824
Family Law News
Multiple Post-Secondary Degrees: When Does a Parent’s Child Support Obligation End?
Michaela Newman, Hughes + Bale
Many people believe that an obligation to pay child support ends when a child turns 18 years of age, graduates high school, and/or obtains one post-secondary degree. In actuality, child support may be payable long after a child’s 18th birthday, high school graduation, or completion of one post-secondary degree.
Section 15.1 of the federal Divorce Act1 obligates a spouse to pay support for any or all “children of the marriage”. Pursuant to section 2(a) of the Divorce Act, a “child of the marriage” includes a child who is the age of majority or over and unable, by reason of illness, disability, or “other cause” to withdraw from parental charge. Courts have frequently interpreted this section to include children who are enrolled in a post-secondary education and therefore unable to withdraw from parental charge and become self-sustaining.2
The provincial Family Law Act3 provides additional clarity. Section 31(1) of the Family Law Act specifically enumerates a parent’s obligation to provide support, “to the extent that the parent is capable of doing so, for his or her unmarried child who is enrolled in a full-time program of education”.
The question then becomes, when does a parent’s obligation to provide child support terminate? Are adult children entitled to remain perpetual students and, if so, are parents obligated to financially support their children throughout their education?
An applicant for child support bears the onus of proving that the child in question is dependent and unable to withdraw from parental charge.4 There is no arbitrary age when a child who is pursuing an education ceases to qualify for support.5 As a child becomes older and better educated, the onus of proving dependency grows heavier. 6
Parental contribution to a child’s first post-secondary degree is generally uncontroversial.7 Historically, Courts were more reluctant to create orders for child support extending beyond one post-secondary degree. However, as asserted in Haist v. Haist, “this is no longer the case”.8 More recently, Courts have appeared more willing to award support where children are pursuing multiple post-secondary degrees. There is no automatic cut-off of dependency after one degree or four years of education. 9
Each case must be decided on its own facts. The case law has established criteria to assist with determining whether a child pursuing a post-secondary degree (or a second or third post-secondary degree) remains eligible for ongoing child support. These factors include, but are not limited to10:
The career plans of the child – i.e. whether the child has a reasonable and appropriate plan or is simply attending post-secondary education because there is nothing better to do;
The ability of the child to contribute to his or her own support;
The age of the child;
Whether the child is eligible for student loans or other financial assistance;Th
e child’s past academic performance – i.e. whether the child is demonstrating success in the chosen course of studies; and
What plans the parents made for the child’s education.
More recent case law has provided additional factors to consider in the analysis11:
In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies, and the associated cost of the course of study;
The aptitude and abilities of the child, their level of maturity and commitment, and their sense of responsibility;
The means, needs, and other circumstances of the parents and the child;
The qualifications and experience of the child;
In considering what plans parents made for the education of their children, there should be consideration of the fact that reasonable parents are ordinarily concerned about treating each of their children comparatively equally; and
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable and has unilaterally terminated their relationship with a parent, it may be difficult to establish that such child has not withdrawn from parental care.
Some cases have placed considerable weight on whether a parent has the parental means to assist the child with their multiple degrees.12 In the case of Van Vroenhoven v. Van Vroenhoven, the payor father had an income over $200,000 per annum. The Court determined that the father had the financial means to assist his two children with their post-secondary education, including post-graduate degrees, and that the child should not be placed in a position of having to accumulate student debt when his parents had the financial means to assist him.13
In Easton v. Coxhead, the payor father’s income was over $250,000, and the Court held that both parents were “well able” to support the child’s second degree.14 High income earning parents appear to be more likely to incur an ongoing obligation to support their adult children.
In Oates v. Oates, the Court relied on the fact that the family had always placed a high value on obtaining higher education. Accordingly, the child was deemed to be “meeting the implicit wishes of her parents in pursuing a Masters degree”. Furthermore, the Court relied on the fact that the father had obtained a degree in dentistry and expressed a desire for his child to set similar goals for education.15
The “ultimate question” is whether the child is unable, without the direct or indirect financial assistance of the parents, to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.16 Where the answer to this question is “no”, it follows that a support obligation continues.
Consideration must also be given to the fact that a child may reside away from either party’s home while pursuing post-secondary education, as this may have further impact on a support obligation. Case law has established that the full quantum of support payable pursuant to the Child Support Guidelines may not be appropriate where the child is residing away from home throughout the school year.17
Ultimately, Courts retain wide discretion to assess each case by its particular circumstances and determine the appropriateness of an award of ongoing child support.
Michaela Newman practices family law with Hughes + Bale LLP.
She can be reached at:
Hughes + Bale LLP
25 Main Street West
Tel: (905) 523-5252
1 Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)
2 Easton v. Coxhead, 2018 ONSC 4784 (S.C.J.), para. 64
3 Family Law Act, R.S.O. 1990, c. F.3
4 Haist v. Haist, 2010 ONSC 1283 (S.C.J.), para. 54 [Haist], citing Rebenchuk v. Rebenchuk, 2007 MBCA 22 (C.A.)
5 Jarzebeinski v. Jarzebinski, 2004 CarswellOnt 4600 (S.C.J.)
6 Penn v. Penn, 2014 ONSC 6321 (S.C.J.), para. 21, citing Renouf v. Bertol-Renouf, 2004 ABQB 885 (Q.B.)
7 Easton v. Coxhead, supra, para. 66
8 Haist, supra, para. 56
9 Penn v. Penn, supra, para. 26
10 Farden v. Farden, 1993 CarswellBC 619 (S.C.), para. 15
11 Easton v. Coxhead, supra, para. 68, citing Shelley v. Russell, 2012 ONSC 920 (S.C.J.)
12 For example, Van Vroenhoven v. Van Vroenhoven, 2009 CarswellOnt 1288 (S.C.J.); Easton v. Coxhead, supra
13 Ibid, para. 82
14 Easton v. Coxhead, supra, para. 69
15 Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J.)
16 Shelley v. Russell, supra
17 Easton v. Coxhead, supra, para. 77
Real Estate News
Li Cheng, Li Cheng Professional Corporation
I came across an online survey that asked the following question:
“Who is responsible for implementing technologies to your business?
a. Chief Executive Officer
b. Chief Technology Officer
I suspect for real estate lawyers, the overwhelming answer to the above question is (c).
COVID-19 has indeed created chaos in the real estate bar across the province. There are aspects of the practice that were already remote-capable prior to the pandemic, such as the new Teraview and the transitioning of Conveyancer over to Unity. However, other aspects of the practice, as I will discuss below, have proven to be less robust.
While the Law Society of Ontario was quick to issue the notice which re-interpreted the in-person requirement under the Commissioners for Taking Affidavits Act, and title insurers were by-and-large quick to provide clarity on insurance coverage for transactions conducted remotely, financial institutions have been painfully slow to react to the issues faced by lawyers.
To the best of my knowledge, all title insurers have issued notices to provide either gap-coverages in the event that a transaction cannot be completed due to unforeseeable shutdowns to the land registry office or financial institutions, although this is becoming more and more unlikely. The Director of Titles has repeatedly stated that he intends for the land registry offices, and Teraview, to remain open throughout the process. Financial Institutions have also suggested that they would remain open for business, although on a reduced capacity without regard for our needs which I discuss below.
More importantly, title insurers have also issued clarifications on insurance coverage for transactions conducted remotely, whether it is signing remotely via video conferencing with wet ink or signing via electronic services such as DocuSign.
I would strongly encourage fellow practitioners to review the individual policies to fully understand the coverages.
For me personally, financial institutions have proven during this pandemic that they view real estate lawyers as an after-thought. I strongly encourage all practitioners to provide feedback of their experience in dealing with financial institutions (whether in respect to mortgage funding or day-to-day banking) to the HLA so we can undertake a unified approach to bringing the issues we face to the attention of financial institutions.
I also note that FOLA has been a strong supporter of real estate lawyers and was proactive in their dialogue with financial institutions and other stakeholders to the real estate law practice. I would like to thank John Krawchenko for his contributions in advocating the concerns of the real estate bar. I strongly encourage everyone to review the resources and updates FOLA has continuously provided. They are available at https://fola.ca/real-estate-law
As at the date of writing this article, the following challenges remain with respect to financial institutions. This is by no means an exhaustive list and I encourage lawyers to contact any members of the real estate subcommittee with issues that they face:
1. Wiring delays. Some wires take hours, or in the rare instances, days, to be deposited to the recipient account.
2. Specific mortgage instructions to meet and sign with clients in-person. I have had mixed success pushing back on this. My success rate is drastically higher in commercial transactions compared to residential transactions. There are two layers to this issue: acceptance of remote ID verification, and the acceptance of electronically signed documents. Some lenders have come around to accepting remote ID verifications, but my experience is that they are less accepting of the same remotely identified transactions to also be signed electronically. Given the tight turnarounds we are frequently subject to in residential transactions, resolving the first layer alone is not sufficient to solve logistical issues if the client does not have access to a printer there is insufficient time to print and courier the documents to them to sign and then deliver back to the lawyer.
3. Deposit delays with remote deposit terminals. This may be institution-specific, but deposits are not instantaneous. Rather, they are staggered throughout the day and will not be reflected in the trust account until those deposit times.
4. Not all institutions are accepting wire for mortgage payouts. I am happy to report that RBC and CIBC appear to have finally set up this function. I would encourage lawyers to call into their financial institutions to confirm wire payout instructions. I hope it will soon be incorporated on their standard payout letters. However, I would caution against signing any pre-authorized debit form (which a colleague was instructed by Scotiabank to do). This would be in contravention of the Rules of Professional Conduct, as banks should not be authorized to unilaterally extract funds from trust accounts.
5. Shortened hours and branch closures. In conjunction with wire delays, shortened hours and reduction of branches may cause delays to transactions that would have otherwise closed without issue. I have had solicitors on the other side taking strong positions and attempt to solicit penalties in this regard. It would be interesting to see how this would play out if one of these cases ends up in court.
Both the LSO and FOLA have set out the associated risks and how to manage those risks through a series of checklists. They can be easily accessed by searching “LSO Virtual Commissioning Checklist” and “FOLA Basic Approach for Remote Signing”.
Generally speaking, lawyers should continue to be weary of the same red flags for fraud that would otherwise be present regardless of whether the meeting takes place remotely. In addition, we should ensure that the client is not under duress or undue influence by confirming whether they are alone in the room, and take extra pre-cautions to verify that their identification matches those provided prior to the meeting. The Ontario Driver’s Licence can be verified on the Ministry of Transportation Website, and as a bonus, it is currently free until further notice due to COVID-19.
One aspect to consider in choosing your platform to perform a virtual meeting is the security of the videoconference platform, and the ability for the other part(ies) to digitally alter the video. As an example, Facetime has the ability to include additional video effects to alter the video. On the face of it, this is benign when friends or families turn themselves into puppy emojis during personal conversations, but the technical function may be translated to altering the appearance of the person for fraudulent purposes.
All electronic signature platforms come with time stamping and verification functions. One issue I constantly run into is clients signing the documents prior to the actual video-conference meeting. Signing electronically does not mean that the documents can be signed prior to the actual meeting before the lawyer can witness or commission declarations. We need to be very careful to follow the procedure as provided in the LSO guidelines, and ensure the signing of documents is done in the virtual presence of the lawyer.
In my view, the last remaining hurdle to fully conducting real estate practice remotely is for the financial institutions, as a group, to understand the enforceability of electronic signatures, the steps lawyers are taking to ensure such electronic signatures are reliable, and how the risks of fraud are covered under the title insurance policies. n
Li Cheng practises in association with George Street Law LLP with a focus on real estate, land development and business law. He can be reached at:
George Street Law LLP
200-10 George Street
Hamilton ON L8P 1C8
Criminal Law News
What a change two months has made since writing my last article. COVID-19 suddenly arrived here and, like the rest of society, the justice system was blindsided. It didn’t help – and certainly has exposed – that the court system is technically antiquated with its reliance on in-person appearances, paper and so forth. The sudden closure of the courthouses to the public and the Bar alike left everyone trying to figure out what to do and how to do it. As well, the gaols present their own special challenges to the criminal justice system beyond just courthouses.
The first week the courthouses were closed was particularly chaotic as the Ministry of the Attorney General and Legal Aid Ontario both withdrew their staff, however many Defence Counsel went daily to provide essential assistance until new arrangements were gradually cobbled together. More particularly, ever since the inception of this public emergency, Ontario’s Defence Bar has been playing a leading role through the Criminal Lawyers Association under the leadership of President John Struthers and with the invaluable assistance of too many volunteers to name, and in Hamilton through the Hamilton Criminal Lawyers Association.
At our local level, amongst other things, HCLA President Kaley Hepburn has been distributing the latest directives from the courts and sending daily messages regarding the case lists for judges, in-custody appearances, and the court and Crown personnel for different courtrooms. Vice-President Lauren Wilhelm has been organizing continuing legal education and Secretary-Treasurer Dean Collett has been staging social and professional ZOOM meetings. Kaley recently summarized the HCLA’s engagement this way: “...Our Association does have a seat at the table locally. We are on a number of committees that meet monthly both at the Ontario Court of Justice level and Superior Court. Our association has been a part of an email list that includes the Crown’s office, the Clerks, Court Services, the Police, and the Superintendent of HWDC. We also have a seat at the table provincially, through the Criminal Lawyers Association. Our regional director, Vik Singh participates in meetings and represents our local interests.”
Both the Ontario Court of Justice and the Superior Court of Justice have issued a multiplicity of Notices and Practice Directions as procedures are adapted and created to cope with the evolving circumstances, the most critical of which is the public health imperative of isolating individuals from one another to prevent contagion. They are being frequently revised and replaced but they can be easily found on their respective Web sites:
Ontario Court of Justice: https://www.ontariocourts.ca/ocj/covid-19/
Superior Court of Justice: https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/
The Bar, and, in particular, the Criminal Defence Bar, both locally and provincially wants to return to normal practice as soon as it is safe to do so and to find practicable alternatives until then. It has not been lost on Defence lawyers that – unlike other justice system participants including the Bench, court staff, Crown counsel and their staff, probation officers, police, Legal Aid Ontario counsel and other staff, and almost everyone else – they alone are paid only by fees-for-service.
For now, at the time of this writing, OCJ criminal trials and preliminary inquiries scheduled to be held between Friday March 20, 2020 and Friday July 3, 2020 are suspended unless a seized judge orders otherwise and the Regional Senior Judge is satisfied that the necessary courthouse resources are in place, nor is the court currently setting dates for them. Of course, the ten-week automatic bench warrant with discretion (to hold) has been used since the inception of the court shut-down to postpone pre-trial court appearances. The court has been managing to deal with bail hearings and in-custody guilty pleas, and adding out-of-custody guilty pleas commencing in Hamilton on Tuesday May 19, 2020. As of May 4, 2020, the Provincial Offences Court has been adjourning everything from Monday March 16, 2020 through Friday May 29, 2020. In a message published May 12, 2020, Chief Justice Maisonnneuve said:
“As you may know, on Monday May 4, the Ontario Court of Justice released a public communication announcing that it will not be returning to full operations on May 29, 2020. The communication advised that no trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest.
As we continue to work with the Superior Court, the Ministry, and other justice partners to address and tackle the challenges to the resumption of trials and preliminary inquiries, the Court understands and shares the pressing concern of a growing court backlog.
The Court is thus pleased to announce a limited expansion. As of Monday May 11, the Court will expand its operations to accommodate resolutions of criminal charges involving persons who are out of custody, where the Regional Senior Judge is satisfied that the necessary courthouse resources are in place. In addition, as further described in the Notice, the Court is making judicial pre-trials mandatory for all criminal proceedings (including YCJA proceedings):
i) that were scheduled for a trial or preliminary inquiry between March 16, 2020 and July 3, 2020 that was, or will be, adjourned due to the COVID-19-19 pandemic; and
ii) that are scheduled for a trial or preliminary inquiry between July 6, 2020 and October 30, 2020”
In the SCJ, just as the Journal was going to press, Chief Justice Morawetz issued a new Notice, effective May 19, 2020, and consolidating the former ones. Here’s an abridged Summary of this Notice:
On May 13, 2020, Chief Justice Morawetz issued a new Consolidated Notice to Profession which consolidates previous Notices, and each Regional Senior Justice issued updated Regional Notices to the Profession. The Regional Notices to the Profession direct which matters may be heard in each region and the process to follow, without the need to refer to previous regional notices. They further expand the scope of matters that will be heard virtually through telephone and video conference hearings. The new Consolidated Notice to the Profession, dated May 13, 2020, and the Regional Notices to the Profession may be found at:
New sections of the Consolidated Notice to the Profession include: an expectation that lawyers/parties will take positive steps to move a case forward, including participation in virtual mediations; guidance on commissioning affidavits virtually; recommended etiquette during virtual hearings; and an obligation to deliver copies of relevant previous orders and endorsements in family and child protection matters.
While there will be no in-court hearings until July 6, 2020 at the earliest, and no jury trials until September 2020, the SCJ remains open. Lawyers and litigants are encouraged to seek hearings for matters that are being heard in each region. For criminal matters in particular, the Court is open to suggestions from counsel on creative ways to resolve, streamline or move matters forward by remote or alternate processes.
Across the province, the following urgent matters will continue to be heard:
Bail, Bail Review, Detention Review, Guilty Pleas and Sentencing will continue to be prioritized for in-custody persons in urgent circumstances, in addition to Habeas corpus applications.
In addition to the urgent matters, the chart below summarizes which matters may be heard in each region. Counsel and parties are strongly advised to confirm which matters will be heard in each region by reviewing the applicable Regional Notice to the Profession, effective May 19, 2020. Each Region’s process for having a matter heard is also set out in each Region’s Notice to the Profession. Matters will be heard exclusively in-writing or by telephone or video conference.
Central South – Criminal: Bail, Bail Review, Detention Review, Guilty Pleas and Sentencing will continue to be prioritized for in-custody persons in urgent circumstances, in addition to Habeas corpus applications”
Likewise, at our local level, counsel should also check for more local directions issued by Justice Leitch in the OCJ for Hamilton and Justice Arrell in the SCJ for the Central South Region.
Indeed, on May 12, 2020, the latter issued a new Notice, effective May 19, 2020, of which this is an abridgement:
“By Notice to the Profession dated March 15, 2020, the Ontario Superior Court of Justice (SCJ) advised the profession, the media and the public that, while the SCJ was suspending court operations, it would continue to hear urgent matters in criminal, family and civil.
During the intervening period the SCJ has continuously explored all avenues to expand the services it provides to the public. As set out in the Province-Wide April 2, 2020 Notice to the Profession issued by Geoffrey B. Morawetz, Chief Justice, Ontario Superior Court of Justice, each Region expanded the scope of matters it heard effective April 6, 2020, with a further expansion April 28, 2020.
Having considered the various resources and technological constraints to hearing matters during the suspension of court operations, the Central South Region will, effective May 19, 2020, expand further to deal with additional matters.
During the next several weeks, the Central South Region will continue to monitor the situation and, if possible, will further expand the types of matters and hearings that will be heard during these extraordinary times.
This NOTICE supersedes and replaces the NOTICES of April 2, April 28 and April 30, 2020 issued in Central South. ...;
The Chief Justice has issued orders adjourning criminal matters to specified dates and extending bench warrants accordingly. He has also issued an order adjourning matters and extending certain orders in child protection cases. These and other orders of the Chief Justice can be found at: https://www.ontariocourts.ca/scj/notices-and-orders-covid- 19/#ORDERS_OF_THE_CHIEF_JUSTICE.
A) CRIMINAL MATTERS:
1. Urgent Matters (Not Dealt with in Paragraph 2 Below):
All urgent requests for hearings in criminal applications (not already dealt with in paragraph 2 below) are to be set out in a letter (max 2 pages) stating:
a. the relief requested;
b. the reason why the matter is urgent; and
c. confirming that the matter can be dealt with by way of a conference hearing.
The urgent request must be sent to the Trial Coordinator at the court site where the matter is to be heard as follows:
... Hamilton: Hamilton.Superior.Court@ontario.ca
The letter will be reviewed by one of the criminal triage judges as to whether the matter is urgent. If it is deemed urgent, counsel will be given instructions on how the matter will proceed, and the volume of material that may be filed.
The parties shall undertake to file all materials upon resumption of normal court operations.
2. The following criminal matters are considered not urgent and will be heard by the SCJ:
a. Bail issues (detention reviews and initial hearings on S. 469 offences) for those in custody;
b. Urgent bail issues for those on release (health or Covid-19 related);
c. Joint submission guilty pleas for those in custody who are in a time-served position;
d. Extending stays of driving prohibitions, fine payment, and bail pending appeal orders for Summary Conviction Appeals that have a sunset clause before July 7, 2020; and
e. Habeas corpus applications.
f. Trials that were scheduled for March, April, May and June 2020 can be scheduled for a further judicial pretrial to discuss resolution, re-election and/or re-scheduling. Counsel should contact the Trial Coordinators who will provide a non-negotiable date for the pretrial and the coordinates to connect to the pretrial.
g. Guilty pleas for non-custody matters where there will be a joint submission on sentence of no incarceration
h. Guilty pleas of non-custodial matters where a remand out of custody is on consent with sentencing to occur once the suspension of the court is lifted.
i. Pre-trial motions where no oral evidence is required. The accused must have access to the hearing by zoom or conference line and counsel must agree that the same judge hearing the pretrial motions need not be the trial judge.
j. All requests for non-scheduled criminal judicial pretrials for parties with counsel only may be obtained by contacting the trial coordinator at the court site where the matter is filed (see email list above). The judicial pretrial will be arranged as per the already established Central South protocol prior to COVID-19.
Needless to say, the public, and its revered access to justice, has been profoundly and negatively affected by this crisis. One interesting question will be how the criminal justice system copes with dramatically increasing case congestion as existing cases are postponed and new cases are constantly arriving.
Will the trial delay caused by the pandemic simply be dismissed as a kind of the “exceptional circumstance” contemplated by Jordan? On the one hand, a once-in-lifetime pandemic seems to be obviously “exceptional”, but, on the other hand, has a technologically antiquated criminal justice system left itself vulnerable to this crisis that is forcing a sea change in the courts with access through technology?
The Hamilton Crown Attorney’s Office fortuitously initiated its SCOPE system two years ago so it has been able to facilitate making Disclosure and presumably the ability of staff to work efficaciously from home. We are getting crash courses in other remote access technologies like ZOOM for meetings or (for Crown Offices not on SCOPE) the perhaps unfortunately named EATS (Enterprise Attachment Transfer Service) to deliver Disclosure, and now JVN video for out-of-custody guilty pleas. Trials – especially with juries – will be a much harder nut to crack.
So, to paraphrase the words of St. Paul, let us fight the good fight and keep the faith as we journey together into uncharted territory.
Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.
He can be reached at:
20 Hughson Street South, Suite 612
Corporate Commercial News
Members’ and Directors’ Meetings of Not-for-Profit Corporations During the COVID-19 Pandemic
David J. Mifsud, George Street Law LLP
Organizing members’ and directors’ meetings during normal times can be difficult for non-profit corporations, but the COVID-19 crisis has made the process even more challenging. Not-for-profit corporations typically conduct in-person meetings, which during the COVID-19 outbreak would contradict public health advice to practice physical distancing and self-isolation to prevent the spread of the virus.
If a not-for-profit corporation’s by-laws prohibit virtual meetings or the ability to participate virtually in meetings, it may now be stuck in the position of not being able to hold a valid meeting. Also, if a non-profit corporation is required to hold its annual general meeting during the pandemic, it may not have the capabilities to hold a virtual members’ meeting. Thankfully, the Ontario government passed an Emergency Order (Ontario Regulation 107/20 made under the Emergency Management and Civil Protection Act), retroactive to March 17, 2020, that addresses these issues for Ontario not-for-profit corporations. However, federal not-for-profit corporations have no similar solution.
Ontario Corporations Act
Prior to the pandemic, corporations incorporated under the Ontario Corporations Act (the “OCA”) were, unless its by-laws otherwise provided, able to hold a meeting of the members by telephonic or electronic means. Likewise, OCA corporations were, if its by-laws did not prohibit and if all the directors present at or participating in the meeting consented, able to hold a meeting of the directors by telephonic or electronic means.
The Emergency Order has temporarily suspended these sections of the OCA and replaced them with provisions that provide that “despite any provisions in the letters patent, supplementary letters patent or by-laws of a corporation that provides otherwise”, a meeting of the members or directors may be held by telephonic or electronic means.
Prior to the crisis, OCA corporations were required to hold an annual meeting of the members not later than 18 months after incorporation and not more than 15 months after its previous annual meeting and no later than 6 months after its preceding financial year end.
The Emergency Order has also extended the deadline of the aforementioned annual meetings until 120 days after the declared emergency is terminated, if the deadline for holding the meeting falls within 30 days after the termination date, and 90 days after the declared emergency is terminated, in all other cases.
These changes are only in effect during the temporary suspension period. It is unknown when the Ontario government will terminate the emergency. An OCA corporation should review its letters patent and by-laws to ensure that virtual meetings are not prohibited, to allow for virtual meetings to continue after the emergency is terminated.
Canada Not-for-profit Corporations Act
Corporations incorporated under the Canada Not-for-profit Corporations Act (the “CNCA”) are only able to hold members’ meetings entirely by means of a telephonic or electronic facility if the by-laws provide. Further, a member may only participate in a meeting by telephonic or electronic facility if the by-laws do not provide otherwise. Directors of CNCA corporations may participate in a meeting of directors by means of a telephonic or electronic facility if, subject to the by-laws, all directors consent.
A CNCA corporation should review its articles of incorporation and by-laws to determine if they specifically allow virtual members’ meetings and if they prohibit members from voting digitally. It should also take care in choosing the method of digital voting, as it must allow the corporation to gather votes in a way that allows the votes to be verified, tallied and presented while remaining anonymous.
If the by-laws prohibit virtual members’ meetings or are silent with respect to them, an alternative is to hold a partially virtual meeting, whereby some participants attend in-person and others participate virtually. In the further alternative, the directors may amend the by-laws; however, it should be noted that such amendment would need to be confirmed by the members at the next members’ meeting.
CNCA corporations are required to hold an annual meeting of members within the same time frames as mentioned above for OCA corporations. If a corporation determines that it would be detrimental for it to call an annual meeting of members within the normal timeframe, it can apply at least 30 days before the day on which the notice of the time and place of a meeting is to be given to members, to the Director appointed under the CNCA to extend the deadline. The Director, on a case-by-case basis, will assess the reasons for the application and the potential prejudice to members.
I have been advised by Corporations Canada that they have received many such applications and are unable to provide decisions within the 30 day service standard. If a CNCA corporation intends to apply for this exemption, it should do so well in advance of its annual meeting deadline.
David J. Mifsud is a Partner at George Street Law Group LLP in Hamilton and can be reached by phone at 905-526-2101 or by e-mail at firstname.lastname@example.org
Estates Law News
Capitalize on your ETDL
Angela Papalia, Regency Law Group
Estate Trustees During Litigation (ETDL) are appointed by court order1 to manage and preserve estate assets for the eventual distribution pursuant to the Will or intestate estate laws – however, a great ETDL will do much more to assist the parties.
Appointing your ETDL
During an estate dispute, the Trustee named in the Will may have a personal conflict preventing them from making impartial decisions in the estate’s best interest and not for their own gain.
To protect assets and enable the estate administration to proceed, the Court may appoint a person or corporation to act as ETDL on an Application for Directions or a subsequent motion. An ETDL is empowered by the court order and is accountable to the court. This is different from a Trustee named in a will who derives their authority from this document.2
Rarely, an ETDL may be appointed where the estate administration requires particular skill (i.e. ongoing business oversight) and the named Trustee does not have the skill to complete this3. The Trustee could consult professionals for guidance; however, to absolve themselves of liability and depending on the length and extent of involvement required it may be prudent to step away and have a knowledgeable ETDL appointed.
Restrictions on Authority
The only legislative restriction on an ETDL’s authority is its inability to distribute the estate residue, however I prefer to have the order specifically address steps that exceed regular maintenance and preservation of assets, including the ability to distribute or dispose of certain assets.
Additional restrictions may be included in the order appointing them at the court’s discretion and the order should direct how and when the ETDL’s compensation is calculated and paid.
Exploiting your ETDL
Clients are more amenable to the cost of an ETDL who will actively work to further the estate resolution rather than one who will sit back, exchange letters and mediate arguments. In assessing what you can do or what you expect of your ETDL, examine the fact specific obstacles in each case.
For example, if there is a (likely) dispute as to whether the resulting trust principle applies to joint assets, the ETDL should investigate bank documents, obtain statements from parties who can corroborate the testator’s intention and trace the source of funds into the account.
If capacity is questioned, it is prudent for the ETDL to obtain and review medical records, receive statements from attending physicians or have the records reviewed by an independent doctor selected by the ETDL.
Having the neutral ETDL obtain, review and protect documents maintains their integrity and organization, which could streamline preparation for motions or trial. Neutrality also fast tracks the selection of experts and improves the quality of witness and expert statements as there is no bias in the questioning process. I would suggest that the court give increased weight to statements investigated and submitted by an ETDL where the person is not presented to give oral evidence.
The ETDL should maintain a focus on finalizing the estate and resolving beneficiary disputes throughout; however, once the requisite evidence is obtained the ETDL may consider mediating or even arbitrating remaining settlement obstacles.
If the parties have too much family emotion to likely come to a mediated settlement you may define all open issues, have them submit briefs on their positions and agree to accept the ETDL’s decision on each point. Potentially, consider having them sign an agreement to this effect at the onset. It may promote their confidence in you being a worthwhile estate expense if they have certainty that a resolution will be achieved throughout.
The ETDL is discharged by court order on a motion for this purpose. The order should address whether or not accounts must be passed, absolve the ETDL of liability and possibly indemnify them from estate assets if the estate is ongoing.
Angela Papalia practices with Regency Law Group. She can be reached at:
5 Main Street West, Suite 2010
1 s. 28 Estates Act R.S.O. 1990, C.E.21; 75.06(3)(f) Rules of Civil Procedure R.R.O. 1990
2 Schnurr, Brian A. Estate Litigation, Toronto: Carswell, 1987
3 McColl v McColl (2013), 93 E.T.R. (3d) 116