Involved in a Commercial Real Estate Transaction? Make Sure You Complete Your Due Diligence with Respect to Environmental Issues Due diligence is an essential part of any real estate transaction. In a residential real estate transaction, searches are typically performed to determine if there are any issues with respect to title, encroachments, work orders, open building permits, arrears in taxes or utility bills, and writs against the seller. Of course, every property is unique and additional searches may be required depending on the particular situation. In a commercial real estate transaction, it is important to conduct searches for not only the above-mentioned issues but also for additional matters that can especially affect commercial properties. Failure to conduct proper due diligence can expose the purchaser to significant liability. In today’s post, we will focus on liability for environmental issues and how you, as a purchaser of a commercial property, can take steps to protect yourself.Environmental LiabilityUnder Ontario’s Environmental Protection Act, RSO 1990, c E.19, current and former owners of a property can be held liable for environmental contamination, whether or not they are actually responsible for causing the contamination. In Hamilton Beach Brands Canada Inc v Ontario (Environment and Climate Change), 2018 ONSC 5010 (Div Ct) (leave to appeal to ONCA denied), the current owners and tenants of property were held liable for contamination that occurred at the hands of a former tenant decades earlier. As seen in the case of Midwest Properties Ltd v Thordarson, 2015 ONCA 819 (leave to appeal to SCC denied), corporate ownership of a property will not necessarily protect individuals from being held personally liable. Courts are willing to pierce the corporate veil and hold directors and officers liable for environmental contamination pertaining to properties owned by their respective corporations. Furthermore, a government order to remediate a property does not preclude a civil action for damages from owners of neighbouring properties that may be affected by the contamination.How Can You Protect Yourself?Before purchasing a commercial property, it is important to thoroughly investigate the history of the property and determine if it is possible that contamination occurred on the property at any time in the past. This may require determining all the previous owners and uses of the property. The Ontario Ministry of the Environment, Conservation and Parks (MECP) should be contacted to determine if there are any records of contamination relating to the property in question. If there are any storage tanks on the property, their history should be investigated. Since 2002, all underground fuel storage tanks must be registered with the Technical Standard Safety Authority, and larger tanks require annual testing. In some cases, it may be necessary to perform a Phase I or even a Phase II Environmental Site Assessment (ESA) to determine if any contamination exists on the property, either above or below the surface or in the groundwater. If there are plans to change the use of a property, the MECP may require that a Record of Site Condition be filed which in turn requires completion of an ESA.If you have any questions regarding liability for environmental contamination or environmental due diligence that should be completed prior to purchasing either a residential or commercial property, please contact Laura Rosati, Commercial Real Estate Lawyer at Devry Smith Frank LLP, at 289-888-6643 or laura.rosati@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Real EstateNovember 4, 2020March 20, 2024
Ontario Introduces the Personal Real Estate Corporation (PREC) On October 1, 2020, the Government of Ontario filed Ontario Regulation 536/20, Personal Real Estate Corporations (“Regulation 536/20”), under the Real Estate and Business Brokers Act, 2002, SO 2002, c 30, Schedule C (“REBBA 2002”). Regulation 536/20 allows realtors in Ontario to incorporate Personal Real Estate Corporations (“PRECs”) and establishes the regulatory framework with respect thereto. Realtors now join other professionals, such as medical doctors, lawyers and accountants, who are permitted to earn income through a professional corporation. This post provides an overview of Regulation 536/20 and addresses some of the potential benefits of a PREC to a realtor. Regulation of PRECs Pursuant to Regulation 536/20, a PREC must be incorporated under the Ontario Business Corporations Act, RSO 1990, c B.16. The PREC’s sole director, sole officer and the controlling shareholder must be registered under REBBA 2002, or exempt from registration, and must be employed by a real estate brokerage to trade in real estate. The PREC itself cannot carry on the business of trading in real estate other than by providing the services of its controlling shareholder to the brokerage. The PREC is only permitted to receive remuneration pertaining to trading in real estate from the controlling shareholder’s brokerage. Likewise, the controlling shareholder is only permitted to receive remuneration pertaining to trading in real estate from the PREC or from the brokerage by which the controlling shareholder is employed. Benefits of PRECs If used correctly, a PREC can assist a realtor with tax planning. Instead of all annual income being taxed at the realtor’s personal marginal income tax rate, income retained in a PREC will initially only be taxed at a corporate tax rate. Presently, the combined federal and Ontario personal income tax rate is over 53% on income over $220,000 whereas for Canadian controlled private corporations entitled to take advantage of the small business tax deduction, the current combined federal and Ontario tax rate is only 12.2% on income up to $500,000. Thus there is the potential for considerable deferment of taxes. Retaining earnings in a PREC may allow for personal income to be “averaged” over several years. The real estate industry can be volatile and realtors are usually only paid on commission. As such, a realtor may have a sizeable income one year and less income in the following years. If one year results in particularly high earnings, those earnings can be retained in the PREC and paid out to the realtor over the following years, rather than being paid to the realtor by the brokerage in the year in which they were earned. This may result in the earnings being taxed at lower marginal income tax rates over several years. The realtor also has the option of being paid by the PREC through dividends rather than through wages, which may provide additional tax advantages. The PREC also allows real estate agents the ability to income-split with the realtor’s spouse, child or parent, subject to the more comprehensive rules regarding tax on split income (which are relaxed for persons over age 65). Therefore, it may be possible to pay amounts from the PREC to those family members, who will presumably be taxed at a lower marginal tax rate than the realtor. Is a PREC Right for You? In order to take advantage of the benefits that a PREC can offer, proper planning is essential. A realtor must consider the extra administrative costs associated with incorporating and maintaining a corporation and weigh these costs against the potential benefits of a PREC. To further discuss whether or not a PREC is appropriate for your situation or to learn more about incorporating a PREC, please contact Elisabeth Colson, a partner and the head of Devry Smith Frank, LLP’s Corporate Commercial Group, at 416-446-5048 or at elisabeth.colson@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Corporate Law, Real EstateOctober 28, 2020April 10, 2024
Rejected work, study or visitor visa – what next? If you have carefully filled in the forms, gathered the numerous supporting documents and tried to provide as thorough an explanation for your application for temporary residence to Canada, it can be deflating to receive a denial letter. While often an application may be rejected simply because the case was not strong enough, there may be things an applicant overlooked in the application process and could therefore “fix” in a subsequent application.While Immigration, Refugees and Citizenship Canada (IRCC) suggests here that you should not apply again if you were refused the first time, this does not preclude submitting an application that presents new or revised information that may make the case stronger. The IRCC also advises that hiring an immigration representative such as an immigration lawyer won’t increase your chances of success.While the mere submission of an application by a representative will not in itself increase your chances, an experienced immigration lawyer can review your initial application, reasons for refusal and assess whether there may be further information that can and should be included in a subsequent application. A lawyer can also assess the merits of a judicial review application, where you can argue that the officer reviewing your application was unreasonable in rendering a decision and ask a judge to send it back for review by a new officer.If you feel that your application was unreasonably denied despite a robust application, it is worthwhile to consider if and how to improve upon it and resubmit.For more information on immigration law, please contact our Immigration Law department at 416-449-1400.“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, ImmigrationOctober 28, 2020April 26, 2024
The Alberta Court Quells the “Magna Carta Lawful Rebellion” In layman’s terms, pseudo law is pure nonsense.[1] The Alberta court has once again called out pseudo law, that body of “spurious legally incorrect ideas that superficially sound like law and purport to be real law”.[1] Simply put, the phenomenon constitutes nothing more than the propagation of gobbledygook.The audacity of practitioners of pseudo law is breathtaking. In the face of universal rejection by the Canadian courts, they employ falsity to “gain an advantage, authority, and other benefits”,[2] claiming that the law does not apply to them.“Jacquie Phoenix”, whose family name appears really to be Robinson, attempted, without success, to use the black art of pseudo law to intervene in a child-custody dispute.As the court sets out in AVI v. MHVB, Ms. Robinson, who is not a lawyer, advised the court that she was acting for the mother in the dispute, claiming that she had the latter’s power of attorney. The letter which she sent to the court about this is quite muddled and alarmingly treats the child at the heart of the dispute as to property. It is reported as reading as follows:This is to inform you that [MHVB] is Lawfully standing under Article 61 of the 1215 Magna Carta which was Invoked on March 23rd 2001 according to the Constitutional Royal Protocol. The Court of Queens Bench is an Unlawful Assembly with No Authority to deal with this matter since the Invocation of Article 61 thus All Judgments made by the Court of Queens’s Bench in this matter are Null and Void. [MHVB] and All of her Property are Protected by the Constitution and the People of the Commonwealth Realm. We require the Immediate Restoration of Her Property see enclosed Exhibit :G in the notice of Conditional Acceptance. Failure to restore the Property of [MHVB] within 7 Days of receiving this letter will constitute High treason, which still carries the Gallows. I urge you to consider Eichmann vs the People “I was just doing my job” is no defence. Nuremberg. Maximin Law Ignorance of the Law is No Excuse[3]From the Magna Carta of 1215 to the mixed-up idea that a court constitutes an “Unlawful Assembly” through outrageous references to “High Treason”, “the Gallows”, Adolf Eichmann and the Nuremberg Trials in two short paragraphs!Among other things, Ms. Robinson challenged the custody proceedings by relying on what the court called the “Magna Carta Lawful Rebellion” (referred to as “MCLR”), which appears to go something like this:[4]members of the MCLR purport to swear allegiance to a British aristocrat under what they say is Article 61 of the Magna Carta of 1215;by virtue of their oath, they are no longer subject to the courts, police and others who are guilty of “High Treason” for failing to obey what they claim is the “Constitutional Law” or the “Common Law” as they define it (or, more accurately put, they make up);the aristocrat in question is identified as Lord Craigmyle of Invernesshire, who appears to be Baron Craigmyle (Thomas Columba Shaw) and whose ancestors were not among the barons involved in the Magna Carta of 1215;he is, however, one of 28 peers who in 2001 signed a petition to Queen Elizabeth II to request that she not give royal assent to legislation ratifying the Treaty of Nice, an international agreement which would have the effect of increasing the powers of the European Parliament over member states;in so doing, the peers relied on the Magna Carta, declaring themselves in “lawful rebellion” under it (their petition had little effect – royal assent was granted, the treaty was ratified, and the United Kingdom did not find itself in legal chaos or civil war);MCLR participants then send a series of notices to the court which set out that they are no longer subject to conventional legal authorities because such authorities are comprised of traitors, etc, who have subverted the law (as they fashion it);instead, they are loyal to the barons who in 2001 invoked the Magna Carta in opposition to the Treaty of Nice (and who would no doubt find it perplexing that someone in Canada is swearing allegiance to one of them);in addition, they claim that by assenting to the Treaty, the British monarch breaks her coronation oath, other subordinate oaths are invalidated and the United Kingdom falls into chaos.In lengthy written reasons, the court methodically dismantles the notion of the MCLR[5] as well as the other troubling claims advanced by Ms. Robinson, pointing out that employing pseudo-law strategies is abusive, an indication that someone may not be a fit parent, and that doing so causes real harm to people. With respect to the latter point, the judge observed as follows: I can only guess at the scope and kind of misconduct and self-injury that results from MCLR belief. But in this case I know that there is a little four-year old girl whose health, safety, and well being are being placed in jeopardy by these ideas.[1]The court prohibited Ms. Robinson from acting for the mother in the custody dispute and is in the process of considering other restrictions on her ability to participate in legal proceedings.What the purveyors of pseudo law do is not a joke: it is abusive, self-destructive (how often have they succeeded in court?), counterfactual, and uses up already overtaxed judicial resources. They should simply stop. [1] AVI v. MHVB, 2020 ABQB 489 at para. 1 [hereinafter AVI v. MHVB].[1] Ibid.[2] Ibid. at para. 2[3] Ibid. at para. 6.[4] Ibid. at paras 39- 71.[5] Particularly at Ibid., para. 72 et seq.[6] Ibid. at para. 135. By Fauzan SiddiquiBlog, LitigationOctober 19, 2020January 5, 2021
Immediate Family Members of Canadians – Entering Canada Since the onset of the pandemic, the rules about who can enter Canada have been confusing and hard to keep up with at times. A particularly hard hit group has been “immediate family members” of Canadians. The temporary travel ban enacted under the Quarantine Act has consistently defined “immediate family members” as the spouse or common-law spouse of a Canadian; a dependent child of a Canadian; the parent or step-parent of a Canadian or their spouse or common-law partner; or the guardian or tutor of a Canadian. However, it has not always been clear who can enter and when, nor have the changes thus far to the rules been sufficient for all family members or loved ones of Canadians. Initially, the COVID-19 travel ban did not apply to “immediate family members” of Canadians so long as the purpose for their entry was not discretionary or optional. In the first few months of the pandemic, this meant airline personnel and border services officers were assessing whether a person’s stated purpose was discretionary. One person coming to visit their Canadian spouse for a few weeks may have been turned away while another in the exact same circumstances may have been let through depending on which officer they got. In June 2020, the travel restrictions were revised so that immediate family members of Canadians could enter regardless of their purpose so long as they could show they were coming for a period of at least 15 days to be with their Canadian family members. Inherently, this seemed to accept that anyone coming in for a period for at least fifteen days was not coming in for an “optional” or “discretionary purpose” and took some of the pressure off of travellers who no longer needed to convince an officer their travel was essential. Those seeking to come for less than 15 days have continued to be exempt from the travel ban but remain subject to the “non-discretionary”/”non-optional” rule. The June changes regarding immediate family members have remained in place up to now. Last week, the federal government announced that further expansion to the exception would be released on October 8, 2020. The proposed changes will allow grandparents, siblings, and adult children of Canadians (not currently exempt) to enter in certain circumstances. Other foreign nationals seeking entry for compassionate reasons such as critical illness or death are also expected to be included in the changes. Stay tuned for further updates. For more information on immigration law, please contact Maya Krishnaratne, Immigration Lawyer at Devry Smith Frank LLP, 416-446-5841, Maya.krishnaratne@devrylaw.ca This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, COVID-19, ImmigrationOctober 6, 2020November 30, 2020
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
Title Insurance Providers Introduce Increased Protection for Lenders from Super Priority Liens and Deemed Trusts The recent decision of the Federal Court of Appeal in Toronto-Dominion Bank v Canada, 2020 FCA 80 (“TD v Canada”), created a new cause for concern for lenders. The facts of the case are as follows: In 2007 and 2008 the debtor, before becoming a customer of the Toronto-Dominion Bank (“TD”), failed to remit to the Receiver General of Canada over $67,000 worth of GST in relation to his business. In 2010, TD extended a loan and a line of credit to the debtor, both of which were secured against a property owned by the debtor. In 2011 the debtor sold the property in question and repaid the loan and line of credit. TD then discharged all charges registered against the property. Two years later, the Canada Revenue Agency (the “CRA”) commenced a deemed trust claim under Section 222 of the Excise Tax Act, RSC 1985, c E.15 (the “Act”) on the basis that the unremitted GST amounts constituted a deemed trust and the proceeds from the sale of the property should have been paid to the Receiver General before they were paid to anyone else. At trial, the Federal Court (2018 FC 538) held that the unremitted GST amounts were indeed subject to the deemed trust provisions of Section 222 of the Act, and, because the deemed trust existed before TD registered its security interest against the property, the CRA had a super-priority lien on the sale proceeds of the property. TD was therefore obliged to remit the amount of the GST debt to the CRA. The Federal Court of Appeal upheld this decision. Outcome This decision is worrisome to lenders for several reasons. First and foremost, amounts covered by the deemed trust provisions in the Act, as well as other amounts that result in a deemed trust, such as pension deductions that an employer fails to remit under Section 227 of the Income Tax Act, RSC 1985, c1, are not registered on title to a property. Therefore, it is often very difficult to determine if a deemed trust exists at the time a lender seeks to register a security interest against a property. Despite this, if a deemed trust is later found to have existed before a security interest was registered against a debtor’s property, the amount subject to the deemed trust will form a super-priority overpayment made to the lender. This includes payments made from the proceeds of the sale of the secured property. The amounts in question can be significant, and these claims can be brought forward many years after a property has been sold and the security interests discharged. Title Insurance While title insurance has, for some time, offered protection against these types of super-priority claims, there is a caveat. Traditionally, coverage under a lender’s title insurance policy ends once the mortgage to which it applies is discharged and therefore, there was no protection for lenders with respect to super-priority claims made following such discharge. In response to TD v Canada, title insurers have begun to introduce new types of coverage for super-priority claims made up to ten years following the discharge of a mortgage. This coverage, with certain exceptions and limitations, gives lenders peace of mind that they are protected from super-priority claims made against them long after they have discharged their security interests against a property. The new coverage is available for both residential and commercial properties. For more information on title insurance protection for deemed trust amounts and super-priority claims, or on title insurance in general, please contact our Commercial Real Estate Lawyers at Devry Smith Frank LLP, 416-449-1400 or by email at info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Real EstateSeptember 30, 2020April 22, 2024
The Importance of Having Legal Counsel for your Aggregate Extraction Licence Aggregate (sand, gravel, stone) extraction is one of the most controversial and heavily regulated industries in Ontario. Necessary to build infrastructure in the province, it is often misunderstood and underappreciated. The industry is governed by a complicated web of legislation and policies: the Aggregate Resources Act (the “ARA”), the Ontario Water Resources Act, the Environmental Protection Act, the Endangered Species Act, the Federal Fisheries Act, the Planning Act, the Provincial Policy Statement and, in some cases, the Growth Plan. It is further subject to a complex set of rules and procedures. Licensing Approval Process An operator cannot operate a pit or quarry without first securing a licence from the Minister of Natural Resources and Forestry (the “Ministry”). The terms and conditions of the licence will depend on a number of factors, including whether the extraction is above or below the water table, whether the extraction is on private or public land and how much aggregate is proposed to be extracted. There are 15 categories of licences. The process of obtaining a licence can take years and involves a process of comprehensive consultation with the local community and, where applicable, First Nations. It generally requires the production, and peer review, of environmental, noise, traffic, dust and water reports. Applications for local planning permissions (official plan and zoning by-law amendments) are often required. It engages a number of agencies, including municipalities, the Ministry and Conservation Authorities. A crucial part of the process is the negotiation of the terms of the site plan which sets out the requirements under which the pit or quarry will operate, outline what must be done to mitigate potential adverse impacts and what must be done to rehabilitate the site once the extraction process has finished. It may also be necessary to enter into agreements with the local municipality are often required as a condition of achieving a licence or planning permission. Often an application will need to be considered by the Local Planning Appeal Tribunal, a court-like body that will hear evidence, consider objections to a licence and decide whether it should be issued. Factors which determine if a licence will be issued The general factors to be considered in issuing a licence are listed under s. 12 of the ARA. These factors, designed to protect the public interest, are broad and subject to considerable interpretation. As a result, it is important to engage a lawyer early on to help guide the application successfully through the process. As an example of a successful intervention, DSF lawyers were at the forefront of seeking amendments to the ARA to prohibit municipalities from demanding fees from aggregate operators to pay for road maintenance and repairs. This has resulted in significant cost savings for existing and future clients. The Importance of Experience DSF Lawyers in Aggregate Approvals A successful licence application requires a keen understanding of the applicable law, sound planning and solid execution. Our experienced lawyers at DSF are ready to help you. David White is a leading lawyer in the area, having had notable success in securing licences and planning approvals for a wide variety of extraction proposals, including those which faced strong municipal and local opposition. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Planning and Development LawSeptember 29, 2020April 3, 2024
Determining the Child Support Obligations of a Step Parent A spouse who stands in the place of a parent to a child can be obligated to pay child support, according to s. 5 of the Ontario Child Support Guidelines (“Guidelines”). The amount a step-parent will be ordered to pay is at the discretion of courts. When exercising this discretion, the court will look to the other provisions of the Guidelines, and to any other parent’s obligation to support the child (including biological parents). The approach courts take to calculate the amount of child support owing by a step-parent can vary. They range from apportionment to percentages and top-ups. However, the case law has carved out several principles that courts generally follow in their determination of a step-parents’ child support obligations. These principles are described below. Primary Child Support Obligation of the Biological Parent The Ontario Court of Appeal in Wright v. Zaver, 59 OR (3d) 26 [2002] interpreted s. 3 of the Guidelines as placing a primary obligation on the biological parent to pay child support in the amount that is determined by the Guidelines (sometimes referred to as the table amount). The Guidelines determine the quantum of child support based on the income of the payor parent and the number of children to whom support is owed. For the biological parent, this amount is automatically calculated, and cannot ordinarily be negotiated lower due to the presence of a step-parent. On the other hand, the step-parent can argue for a reduction in the quantum of child support payable if a court finds that it is appropriate to do so. The full Guideline amount may be the starting point for the court’s determination, but the step-parent can rebut the supposition that they owe the full table Guideline amount with compelling evidence that the Guideline amount would be inappropriate (Kobe v Kobe, [2002] OTC 186 [ONSC]). Regardless of the approach taken, the Guideline table amount will likely still serve as an upper limit for the step-parent’s support obligation. Step-parent’s Child Support Obligation is in Addition to Biological Parent’s Obligation If a court orders a step-parent to pay child support in accordance with the Guidelines, the biological parent’s support obligations are still not displaced. It is at the discretion of the court to determine what additional amount would be appropriate for the step-parent to pay. In most cases, it is unlikely that courts will find it appropriate to award a “windfall” to the support recipient resulting from collecting the full amount of child support twice: from the biological parent and from the step-parent. It is also unlikely that the court will grant this accumulated child support obligation from all parents when this would lead to a standard of living beyond one the child has previously enjoyed. However, if the child support payable by the biological parent is not enough to provide the child with the standard of living enjoyed previous to their parent’s separation, the step-parent may be obliged to top up the amount paid by the biological parent or pay the full Guideline amount, where the biological parent is unable to pay at all, or cannot be located. Children First Objective It is important to keep the objectives found in section 1 of the Guidelines in mind. These include that a “fair standard of support” and “reduction of conflict between parents” are relevant to the determination of appropriate support by a step-parent. The legislation and courts set out to provide a degree of certainty for parents sorting out their affairs after a separation. However, primacy is given to the standard of living the child enjoyed when the parents were still living together, and the best interests of the child, in accordance with the “children first” perspective of the Guidelines. If you have more questions about your family law matter contact our family law department at 416-449-1400 or emailing info@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawSeptember 25, 2020April 15, 2024
Construction Law 101: Explaining Construction Liens What is a Construction Lien? Under the Construction Act a person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien for the price of the services or materials over the interest of the owner on the premises. In this respect, a lien functions as a security interest, securing payment of the individual providing services or materials. A lien arises and takes effect as soon as a person first supplies services or materials to the improvement. It is also important to note that a lien does not attach to the premises where the Crown (defined broadly under the Construction Act) is the owner of the premises. Preservation and Perfection of Liens Construction liens are typically (but not always) registered on title and recorded in the Land Registry Office. This means that the registered lien will be publically accessible to anyone seeking information about that property. However, not every construction lien can be registered on title ( i.e. when the land subject to the improvement is owned by the Crown) In such cases, a copy of the lien is given to the owner of the land. In order to perfect a lien, the claimant must commence an action in the Superior Court of Justice. Where the lien attaches to the premises, a lien claimant must also register a certificate of action on the title. There are strict deadlines for the preservation and perfection of liens. If you require assistance, pertaining to construction law matters, involving liens, holdbacks and contractual disputes, please contact the construction lawyers at Devry Smith Frank LLP to discuss your rights and options. This blog was co-authored by Law Student Amar Gill. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Construction LawSeptember 22, 2020April 10, 2024
How a Mediator Can Get You Out of an Impasse Mediators have to be adept in soft skills to identify and break down the causes of an impasse between opposing sides. DSF lawyer and mediator Eric Gossin shares his wisdom and experience on the tricky task of bridging often seemingly insurmountable differences. Grasping Underlying Issues Disputes are often multilayered, and it takes a skilled mediator to peel them back and understand what’s at the core. A superior mediator has the skill to read between the lines and intuitively understand what the issues are that are not spoken about. For example, in an estate matter between siblings, the background of their relationship needs to be taken into consideration. At times it may be necessary to address the personal issue that the father has always favoured one sibling over the other and the hurt feelings this caused in order to be able to get to a compromise regarding the legal issue. The mediator moves away from the money and property issues, in an attempt to get one party to understand what is bothering the other side. The goal is to get the parties to acknowledge the other side’s real interests. Getting Parties to Talk In order to reveal underlying issues, the mediator needs to get the parties to talk, which is not always an easy endeavour. One strategy is to focus on things the parties have in common. Another is to convey to them that the other side is giving conciliatory signals. Such commonalities and signals are usually overlooked by parties who are in rigorous dispute. In order to make them see these signals and common interests, it takes lots of restating and reframing of positions by the mediator. Another strategy is directing the parties to areas where something positive can be accomplished, even if it is small at first. Small victories will help them move to a position that can break the impasse on a larger matter. If parties are immovable and none of the above bear’s fruit, it is a good idea to carefully point out respective weaknesses in the parties’ cases. This will showcase that litigation, the alternative to mediation, and the route that the case will often take if mediation fails comes with risks. A judge’s decision may well be one where neither side is getting what they want. It is only in rare cases that one party gets all they want. Compromises are the rule. Realizing this will often keep the parties at the table and make them more flexible so that a stalemate position is avoided, which is the first step to a settlement. Sometimes a mediator will invite third parties into the mediation — such as a shareholder, a spouse, or business partner — if he thinks that will help move the matter forward. The Relation Between Mediators and Lawyers In my observation, it is common for lawyers to take the position that they have made their final and best offer, or to pronounce a stalemate. A mediator then has to walk a fine line, careful not to undermine the legal advice of the parties’ lawyers. Each lawyer has the obligation to put forth and defend their client’s case, but sometimes seeing what is in the client’s best interests is not always cut and dried. Lawyers may not always dig deep enough to reveal the underlying issues that stand in the way of a settlement. The situation can become difficult for a mediator when he or she realizes the impasse is because of counsel. Sometimes a mediator can sense that if it wasn’t for counsel, the client would be prepared to move. Sometimes the reverse happens where the clients are stuck, and the lawyers are encouraging them to settlement. That dynamic is a great challenge in mediation, and one of the things that separate the average mediator from a better one is their ability to recognize that tension between the lawyer’s legal position and the client’s — and whether one or the other is more enthusiastic in settling. Admittedly, sometimes people just want to fight. Mediation cannot solve every case, however, in most cases, it is successful. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, MediationSeptember 22, 2020March 27, 2024