Ontario Court of Appeal Affirms That Construction Liens’ Priority Under the Construction Act is Limited to Extent of the Deficiency in the Owner’s Holdback BCIMC Construction Fund Corp. et al. v. 33 Yorkville Residences Inc. et al., 2023 ONCA 1 (CanLII) The decision in BCIMC Construction Fund Corp. et al. v. 33 Yorkville Residences Inc. et al.[1], involved a number of lien claimants which had provided services and materials to the owner of a condominium development. The owner of the condominium had become insolvent and the property subject to the improvement had sold by a Receiver pursuant to a court order. At the time of sale, there were six mortgages registered against the property and two were building mortgages pursuant to Section 78(2) of the Construction Act.[2]The parties did not dispute that the lien claimants are entitled to a priority payment out of the proceeds of sale to the extent of any deficiency in the owner’s holdback under Section 22(1) of the Construction Act. The issue in dispute was the distribution priority pursuant to Section 78(2) of the Construction Act, which outlines the method in determining the amount of the deficiency to which the priority applies. The lien claimants brought a motion to determine this issue. The lien claimants took the position that because there were two building mortgages, they were entitled to priority with respect to the deficiency in holdback over each mortgage. In other words, where the deficiency in holdback was the 10% which the owner was required to retain under the Act, the lien claimants took the position that they were entitled to a 10% priority over each building mortgage such that the total amount for which their liens had priority amounted to 20% of the price of services and materials supplied. In interpreting Section 78(2) of the Construction Act, the Ontario Superior Court held that lien claimants are limited to priority over all combined building mortgages, rather than each mortgage separately.[3] As such, the lien claimants’ motion was dismissed. The claimants appealed to the Ontario Court of Appeal. The Ontario Court of Appeal dismissed the lien claimants’ appeal. Background – The Construction Act Under Section 22(1) of the Construction Act, each payor in a contract or subcontract where a lien arises must retain a 10% holdback of the price of the services or materials supplied until all liens have expired or are satisfied.[4] Section 78 of the Construction Act provides additional rules concerning priority between mortgagees and lien claimants and provides that subject to exceptions, liens from an improvement have priority over all mortgages.[5] The exception in this case appears in Section 78(2) which deals with building mortgages. Section 78(2) provides that the lien has priority to the extent of any deficiency in the holdbacks required to be retained, regardless of when that mortgage or the mortgage taken out to repay it is registered.[6] The lien claimants submitted that the interpretation of Section 78(2) requires that each lien claimant has priority over each building mortgage to the extent of the deficiency in the holdback. Since there were two building mortgages registered on the property, the lien claimants argued that they were entitled to priority over each building mortgage to the extent of the deficiency in the holdback totalling a 20% holdback fund. The lien claimants further argued that the context and purpose of the Construction Act was to protect lien claimants as subsequent building mortgagees expect to assume more risk than prior mortgagees and should not be insulated from additional risk by limiting a lien claimant’s priority to one 10% deficiency claim. Finally, the lien claimants submitted that the case of GM Sernas & Associates Ltd v. 846539 Ontario Ltd.[7] should be distinguished from the present case. In Sernas, the Ontario Court of Justice held that the maximum priority of a claim for lien over two mortgages is 10%, saying that there is one holdback figure and that the deficiency is the full holdback figure.[8] The lien claimants argued that the issue on whether priority is to measured against each mortgage separately was not addressed in Sernas and that as such, Sernas was not binding on the claimants.[9] Ontario Superior Court’s Decision The Ontario Superior Court dismissed the lien claimants’ motion as the lien claimants’ interpretation of Section 78(2) of the Construction Act limited the meaning and effect of key words in the section, reads in additional language that is not present in the section, and produces a result that is inconsistent with the scheme and purpose of the Construction Act.[10] Justice Penny held that Section 78(2) provided priority to a mortgage taken with the intention to secure the financing of an improvement “to the extent of a deficiency” in the owner’s holdback.[11] As such, there is only one holdback available for lien claimants regardless of the number of building mortgages registered on the property. Furthermore, the Court emphasized that when read as a whole, the Construction Act does not have any underlying policy directed solely to protect lien claimants. Referencing RSG Mechanical Incorporated v. 1398796 Ontario Inc., the Court held that there was no suggestion that the interests of lien claimants should be favoured above the interests of mortgagees beyond the value of the holdbacks the legislation requires.[12] Ontario Court of Appeal Decision The lien claimants appealed the Ontario Superior Court’s decision and argued that as the matter is one of statutory interpretation of the Construction Act, the lien claimants argued that the motion judge’s decision and reasoning was incorrect. In reviewing the lower court’s decision, the Court of Appeal found that the motion judge correctly identified and applied the purposive and contextual approach to statutory interpretation and determined that there was no error in the motion judge’s application of the rules of statutory interpretation.[13] As such, the appeal is dismissed. Conclusion This case provides greater clarity for lenders engaged in construction financing with regards to the extent of holdback priority in situations with multiple building mortgages. As the cost of construction increases, especially following the COVID-19 pandemic, it is crucial for lenders to ensure that owners are continuing to maintain the appropriate holdback amount in accordance with the Construction Act. As it stands for now, lien claimants are only entitled to one holdback fund, irrespective of the number of building mortgages registered on the property. If you have any questions about construction law in general, please contact Christopher Statham at 416-446-5839 or christopher.statham@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 situations and needs.” This blog was co-authored by student-at-law, Abby Leung [1] 2023 ONCA 1 [BCIMC]. [2] R.S.O. 1990, c. C.30 [Construction Act]. [3] 2022 ONSC 2326 [2022 ONSC 2326] at para 3. [4] Construction Act, supra note 2 at s.22(1). [5] Ibid at s.78(1). [6] Ibid at s. 78(2). [7] [1999] O.J. No. 3714 (S.C.). [8] 2022 ONSC 2326 supra note 3 at para 16. [9] Ibid at paras 17-18. [10] Ibid at para 20. [11] Ibid at para 21. [12] Ibid at para 28. [13] BCIMC, supra note 1, at paras 13-14. By Fauzan SiddiquiBlog, Construction Law, Real EstateMarch 14, 2023June 25, 2023
Are Pre-Contractual Negotiations Admissible in the Interpretation of Ambiguous Contracts? Ambiguity in contracts can arise for a variety of reasons, including but not limited to a lack of clarity due to poorly defined terms, multiple interpretations, vagueness, changes in circumstances, and language barriers. The courts have historically relied on the Parol Evidence Rule, a common law rule of evidence that restricts the admission of extrinsic evidence outside of the written contract. If the Courts are required to intervene to resolve the ambiguity, the rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing. Furthermore, there is a longstanding, traditional rule that evidence of pre-contractual negotiations is inadmissible when interpreting a contract.[i] The Landmark Case of Sattva In the case of Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 (“Sattva”), the Supreme Court of Canada clarified the principles of contract interpretation. The case arose from a dispute over the date to evaluate a share price in determining a finder’s fee to be paid by Creston Moly to Sattva Capital. The SCC ruled that the objective of contractual interpretation is to determine the meaning of the contract, not just individual words, or phrases in isolation. It also held that the surrounding circumstances, including the background knowledge of the parties, are important factors in determining the parties’ intentions. Specifically, the Court Stated: “The consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning.”[ii] In addition, the Court found that consideration of the surrounding circumstances does not offend the Parol Evidence Rule: “The Parol Evidence Rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise.”[iii] Corner Brook (City) v Bailey: Building Upon Sattva Fast-forward to 2021, the Supreme Court in Corner Brook (City) v Bailey, 2021 SCC 29 (“Corner Brook”), was charged with the interpretation of a release that was signed by an employee who had been injured on the job. The decision re-affirmed several principals that came about in Sattva: Surrounding circumstances are relevant in interpreting a contract; and The nature of the evidence that may be considered will vary from case to case; and The purpose of considering surrounding circumstances is to aid in the interpretation of the agreement – not to add to, contradict, dispute or overwhelm the words of the agreement. The Court also referenced Justices Côté and Brown’s dissent in the case of Resolute FP Canada Inc. v Ontario (Attorney General), where they deliberated over the traditional rule that evidence of negotiations is inadmissible with the approach from Sattva which directs courts to consider the surrounding circumstances in interpreting a contract, citing difficulty in drawing a principled distinction between the circumstances surrounding contract formation and negotiations. In regard to pre-contractual negotiations, Justice Rowe stated: “I leave for another day the question of whether, and if so, in what circumstances, negotiations will be admissible in interpreting a contract. That issue needs to await a case where it has been fully argued and is necessary in order to decide the appeal.”[iv] The Supreme Court “left the door open” as to the admissibility of pre-contractual negotiations in the interpretation of a contract. OFNLP: ONCA Considers Pre-Contractual Negotiations in Decision In Ontario First Nations (2008) Limited Partnership v Ontario Lottery and Gaming Corporation, 2021 ONCA 592 (“ONFLP”), the Court of Appeal reaffirmed the principals in Sattva and clarified Corner Brook. The Court of Appeal considered an arbitration panel’s use of evidence of pre-contractual negotiations as an aid to interpret the financing agreement pertaining to the operation of a casino. The Defendants, Ontario and OLG, asserted that the appeal judge and majority erred in law by admitting the pre-contractual negotiations into evidence. When determining whether the appeal judge had ignored the entire agreement clause and allowed the extrinsic evidence (including the pre-contractual negotiations) to overwhelm the words of the agreement in question, Justice Jamal stated: “I do not agree with this submission. An entire agreement clause alone does not prevent a court from considering admissible evidence of the surrounding circumstances at the time of contract formation. As already noted, the surrounding circumstances are relevant in interpreting a contract exactly because “words alone do not have an immutable or absolute meaning”: Sattva, at para. 47.”[v] and “…I see no error in how the surrounding circumstances were considered. These circumstances helped to place the Agreement in its proper setting and understand the genesis of the transaction, the background, and the context. They included the parties’ history of litigation over revenue sharing; their shared objective of locking‑in three identified revenue streams to ensure stable, predictable, long-term funds for First Nations’ communities; and Ontario’s commitment not to convert revenues received to the final account of the Province into revenues that were not. Such evidence was admissible to show the parties’ objective mutual intention and the background facts leading to the Agreement. In my view, the surrounding circumstances were not used to overwhelm the words of the agreement or to deviate from the text to create a new agreement…”[vi] ONFLP confirms that pre-contractual negotiations can be an important factor in interpreting a contract, particularly where the contract is ambiguous or where there is uncertainty about the parties’ intentions. Conclusion The decisions of Corner Brook and OFNLP have built upon the principals established in Sattva and have opened the door to the use of pre-contractual negotiation as surrounding evidence to aid in the interpretation of ambiguous contracts. Regardless of the reason for ambiguity, it is important for parties to carefully review and clarify contract terms before entering into an agreement, to minimize the risk of future disputes or misunderstandings. For more information regarding commercial litigation, contract interpretation and corporate law, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@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 situations and needs.” This blog was co-authored by Owais Hashmi* [i] Resolute FP Canada Inc. v Ontario (Attorney General), 2019 SCC 60 at para 100. [ii] Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53 at para 47. [iii] Ibid at para 60. [iv] Corner Brook (City) v Bailey, 2021 SCC 29 at para 57. [v] Ontario First Nations (2008) Limited Partnership v Ontario Lottery and Gaming Corporation, 2021 ONCA 592 at para 62. [vi] Ibid at para 64. By Fauzan SiddiquiBlog, Commercial LitigationMarch 6, 2023June 25, 2023
Big Family Court Costs Award Recently, the Ontario Court of Appeal ordered a spouse to pay his spouse over a million dollars, but not in relation to property division nor child support, nor spousal support. The husband had to pay those amounts in addition to over a million dollars that the Court ordered him to pay to his ex-wife to cover her legal fees. Yes, courts can order one spouse to pay all the costs for the divorce and surrounding litigation. Doing the right things after separation, and in Family Court can create big savings for a separated spouse, while denying a “big win” for his or her ex. There can be a lot of anger and other emotions in separation and divorce. Some separated spouses head to a lawyer’s office, or to Family Court, in the hope that they can force their ex to live in a box under a bridge. Some even expect that if they spend exorbitantly on legal fees for an aggressive lawyer, they can force their spouses and children into homelessness. However, if a judge believes that is a spouse’s goal, the efforts can have the opposite of the intended result. The recent Ontario Court of Appeal decision in Lakhtakia v. Mehra is not the first time that the Court has ordered one spouse to pay the other spouse’s legal and accountant fees totalling several hundred thousand dollars, even when doing so would cause financial hardship. Ontario Judges, especially Family Court Judges, will make a spouse whom a judge believes has acted unreasonably to pay all of their ex’s expenses in relation to the divorce, child custody or support proceedings. Rule 24(4) of the Family Law Rules authorizes such Orders. The rationale for this rule is, in part, to discourage separated spouses from acting vindictively towards each other, or to reward a spouse from acting appropriately when his or her spouse is not. It is also because these types of behaviours result in more court appearances, both conferences and motions, which not only increase the party’s legal fees and delay the matter, but clog up the court system. Judges feel that parties who do so should provide compensation for wasting everyone’s time. Spouses who want to make things difficult for their exes often believe that their strategies are innovative and undetectable by the Court. However, judges, all of whom are former lawyers, sit in court everyday, often hearing multiple matters every day, and possibly thousands of matters every year. They have seen many, many attempts to create unnecessary difficulties, and the negative consequences for all involved. In Lakhtakia v. Mehra and Knight v. Knight, the Court of Appeal set out many of the more common tactics that Family Court Litigants try use to gain advantage over their exes, but they frequently backfire: refusing or trying to hide necessary financial disclosure misleading the court, especially in relation to financial matters where objective evidence may disprove the representations. refusing to negotiate or making unreasonable offers to settle either bringing needless motions, or forcing the other party to bring motions to get compliance with existing obligations under the Family Law Rules withholding the children or otherwise using the children to get leverage in negotiations refusing to pay appropriate child support immediately, even on admitted income – judges see this as an attempt to improperly get leverage by causing financial distress otherwise running up the opposing party’s fees and expenses unnecessarily refusing to follow court orders trying to intimidate the other party through threats of embarrassment, financial difficulties or physical force Judges who see a separated spouse or parent using these types of tactics will not hesitate to order them to pay all the legal fees and expenses that the other party incurred to rectify the situation. In the March 2021 changes to the Family Law Legislation, the Federal and Ontario Governments created specific laws to stop separated parties, and especially parents, from engaging in activities that are only designed to harm a former spouse or co-parent. Under section 7.2 of the Divorce Act and section 33.1(2) of the Children’s Law Reform Act, parents have a specific legal duty to protect their children from any conflict related to the separation. Those new laws also require separated spouses and parents to try to resolve matters through negotiation or alternative dispute resolution and avoid Family Court wherever possible. Judges really do expect people to treat each other civilly and try to resolve matters on a reasonable basis after they separate. Serious consequences, including hefty orders for the payment of costs to the other party, are the result when someone choses to be vindictive, or even unreasonable. Separated spouses and parents who want to get the best of their former partner in Family Court need to find an excellent Family Law Lawyer, and listen to that lawyer’s advice. The road to success does not involve underhanded, coercive, or dishonest tactics. Judges are likely to pick up on those and punish he guilty party. The best strategy to see an ex beaten down, if not destroyed, in Family Court, is to be seen as the reasonable, cooperative, caring party while allowing the other party to seem mean or vindictive. This does not mean rolling over and giving away everything – judges don’t think that is reasonable either. But it does mean getting some advice from a lawyer about how to appear reasonable while working towards the best possible outcome. That can be a difficult tightrope walk, especially in the winds of emotion that come after separation. The best lawyers will tell you what the realistic outcomes are, and how best to achieve them, which may involve avoiding Family Court all together, rather than going on an aggressive attack that is doomed not only to failure but to result in serious repercussions, maybe even an easily avoidable costs award of thousands, or millions of dollars, to help a former partner. “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 situations and needs.” By Fauzan SiddiquiBlog, Family LawFebruary 24, 2023July 7, 2023
Fiduciary Fallout: Ontario Court Rules Debt Survives Bankruptcy Amid Trust Fund Misuse In the recent case of Convoy Supply Ltd. v. Elite Construction (Windsor) Corp., the Plaintiff, Convoy, brought a motion for a determination that the debt owing by the Defendants, Elite Construction, and Kostas Michos, the officer, director, guarantor, and directing mind of Elite Construction, survives Kostas’ bankruptcy pursuant to section 178(1)(d) (the “Section”) of Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, (the “BIA“). Section 178(1)(d) states: An order of discharge does not release the bankrupt from any debt or liability arising out of fraud, embezzlement, misappropriation, or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a Trustee or administrator of the property of others. Facts Convoy supplied construction materials to Elite Construction for which payment was not made. On July 28, 2020, Convoy filed a claim against Kostas’s company and Kostas himself, seeking payment of $92,412.15 in damages for breach of trust, among other things. The claim was made pursuant to the Construction Lien Act (“CLA”) and the Construction Act (“CA”). The claim alleged that Kostas and his company had failed to pay for the materials and had therefore been unjustly enriched. Kostas was also accused of diverting or converting the trust funds for their own use. On December 14, 2021, Kostas made an assignment into bankruptcy. He deposed that he chose to make an assignment into bankruptcy rather than bring a motion to set aside the judgment because he had no reason to believe the judgment would survive his bankruptcy. Kostas submitted that he is only deemed to admit a breach of trust, and a breach of trust is insufficient to trigger the Section. Kostas argued that Convoy must additionally show that the debt arose from some element of “moral turpitude or dishonesty.” The deemed admission that the trust funds were appropriated or converted contrary to trust obligations does not necessarily imply “misappropriation and defalcation” under the Section. Kostas further argued that in the absence of moral turpitude or dishonesty, the Court cannot vary the judgment to include a declaration under the Section. Analysis The Court ruled that Kostas was deemed to admit the Breach of Trust Facts, which included that he assented to and acquiesced in the diversion of trust funds established under the CA for purposes inconsistent with the trust. Similarly, directing trust funds for a purpose inconsistent with the trust is also sufficient to trigger the Section and such diversion is considered “dishonest”. The Court found that Kostas was acting in a fiduciary capacity. As sole officer and director of Elite Construction, Kostas failed to adequately discharge his onus as a Trustee to account for the relevant trust funds pursuant to the CA. Goodman J. determined that Kostas’ deemed admissions establish the type of “wrongdoing, improper conduct or improper accounting” contemplated by the Section. Held The Court granted the Plaintiff’s motion, stating that Kostas’s debt to Convoy still existed, and an order was made for Kostas to pay Convoy $92,412 for damages, $7,000 for punitive damages, and $4,790 for costs, and determined that prejudgment and post-judgement interest would survive the bankruptcy. The Order also stated that the judgment debt would not be discharged in the event of Kostas’s bankruptcy and that Kostas was found to have used trust funds in an inconsistent way and failed to account for them as a Trustee. For more information regarding Bankruptcy, Collections, Fraud, and/or Trusts related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@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 situations and needs.” This blog was co-authored by Owais Hashmi* Sources: Convoy Supply Ltd. v. Elite Construction (Windsor) Corp., [2022] O.J. No. 4186, 2022 ONSC 5353 By Fauzan SiddiquiBlog, Commercial Litigation, UncategorizedFebruary 21, 2023June 10, 2023
If You Do Not Make a Will, the Government Will Make One for You Wills are useful legal tools for deceased individuals to unequivocally communicate their last wishes. Most commonly, such wishes include funeral arrangements, how assets of the estate should be distributed, and the names of estate trustees (those responsible to execute the Will’s instructions). It remains true that it is not necessary for a lawyer to draft the Will for it to be legally enforceable. However, a lawyer’s contribution ensures that the Will is drafted appropriately for the estate to be administered and dealt with according the wishes of the deceased, and in accordance with applicable laws. This is especially true if an individual intends to exclude certain persons from being beneficiaries or wishes to donate some of their estate to a charitable organization.. Often, individuals pass away without leaving behind a valid and unambiguous Will. This can be the situation if the individual did not create a Will before passing, or had left a Will, but one that is not valid according to given legal principles. In both examples, that individual is considered to have died “intestate” – and the distribution of the estate will be in accordance with the rules of intestacy. There is an additional caveat worth noting; it is possible for the deceased to be deemed to have died intestate, even having left behind a valid Will. This might be the case if the individual has failed to address the distribution of all the assets of the estate, has listed a person as a beneficiary who has predeceased the individual, or has provided for a benefit to an organization that no longer exists. These examples are referred to as a ‘partial intestacy’. Accordingly, the Will governs the distribution of the deceased’s estate to the extent of the validity of the Will, and the statute (the Succession Law Reform Act (the “Act”)) governs the remaining portion. The rules of intestacy are numerous, and they are nuanced. For this reason, this article provides a high-level discussion of only the most common circumstances – when the intestate individual was single, a common law spouse, or a married spouse. Part 2 of the Act deals with distribution on intestacy. Single Persons and Common Law Spouses In Ontario, only a person of the same or opposite sex who was married to the deceased is entitled to inherit from the deceased’s estate under the Act (s. 1(1)). Common law spouses have no statutory entitlement to the deceased’s property. The same holds true for married spouses who were separated at the time of the deceased’s death (s. 43.1), which came into effect January 1, 2022. In such situations, the distribution of the estate will ‘trickle down’ to the next of kin – children, grandchildren, and so on. The definition of spouse in the Act (s.57) has been expanded to include two people who are not married but have cohabitated continuously for three (3) years, have some permanence, and are parents of a child. Subsequently, common law spouses can apply to become the personal representative of the estate. A common law spouse can also bring an application for support if s/he is a dependant spouse. Married persons If the diseased has died leaving behind a married spouse, and no issue (a term used to encompass children born within the marriage, outside of marriage, and adopted children), then the surviving spouse will inherit the estate absolutely (s. 44). Spouse and Issue If the deceased individual has left behind issue, then the spouse is entitled to a ‘preferential share’ (s. 45) plus a portion of the residue. Currently, the preferential share amount is $350,000 in Ontario (O. Reg. 54/95). If the estate is less than this amount, then the spouse is entitled to the estate absolutely (s. 45(1)) regardless of the amount of issue. However, the application of this rule can become more caveated if the individual has died partially intestate. In this case, the spouse’s entitlement of the preferential share is reduced by the amount, if any, she/he received under the deceased’s Will. Similarly, where a spouse is entitled to less than the preferential share under the Will, the spouse will get ‘topped up’ to the preferential share amount from the portion of the estate that is intestate. If the value of the estate is greater than the amount of the preferential share owed to the spouse, the spouse will be entitled to the full amount of the preferential share plus a distributive share of the remaining portion of the estate. The distributive share will depend on the amount of issues the deceased left behind. If the deceased only left behind one child, then the amount remaining will be divided equally between the spouse and issue (s. 45(2)). If there are two children, the amount remaining will be divided into three portions (1/3 for spouse, and 1/3 to each of the children) (s. 45(103)), and so on. In practice, the application of these rules depends on a number of factors. An intestate individual who was pre-deceased by an issue or left behind an issue who was financially dependent on the individual for health reasons, are examples of situations that can affect the division of the estate. It is important to speak to a Wills and Estates lawyer to ensure that your estate is administered according to your desire. To schedule a consultation please contact Dayna Devonish – Montique at (705) 526 – 9325, ext 203, or by email dayna@prostlaw.com. “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 lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs”. By Fauzan SiddiquiBlog, Wills and EstatesFebruary 15, 2023July 5, 2023
A Tax Trap for The Unwary! In its April 2021 budget the Trudeau government proposed a new tax on vacant residential properties owned by nonresidents. According to the budget document “This will help to ensure that foreign, non-resident owners, who simply use Canada as a place to passively store their wealth in housing, pay their fair share.” Finance Minister Chrystia Freeland told reporters at the time “The idea here is that homes are for Canadians to live in, they are not assets for parking offshore money.” The Underused Housing Tax Act passed in June of 2022 and introduced an annual 1% tax on the targeted properties. The tax is retroactive to calendar years commencing January 1, 2022. The Canada Revenue Agency published technical details as well as the form of the return on January 31st, 2023. Unfortunately, the legislation has a far greater impact than simply taxing “foreign, non-resident owners” who are “parking offshore money” in Canadian residential real estate. Every Canadian partnership, private corporation and trust which holds title to residential properties MUST file a return each year for each property held on December 31of any calendar year. The filing deadline is the same for all entities regardless of their tax year-end date – April 30 of the subsequent calendar year. Failure to file a return results in a minimum penalty of $5,000 for individuals and $10,000 for corporations for each property. The penalty applies even if the property is not subject to the 1% tax. If the property is taxable, a percentage of the tax may be added to the penalty. In order for a corporation or partnership to file a return, it must first register for an “RU” extension to its Business Number. CRA has indicated that registration will be possible after February 6, 2023. Non-residents who are required to file a return must first obtain an Individual Tax Number from CRA. Individuals who are Canadian citizens or Permanent Residents as defined in the Immigration and Refugee Protection Act, governments, publicly listed companies, REITs, charities, co-ops, mutual funds, municipal governments, schools and some other entities are exempt from both the requirement to file a return and from the tax itself. Every Canadian private corporation, partnership and trust holding residential property on December 31 in a year is required to file a return whether or not tax is payable. A corporation is only exempt from taxation if more than 90% of its shares are held by Canadian citizens or residents. In the case of partnerships holding residential property, the exemption is only available if all of the partners are Canadian citizens or residents. Similarly, in the case of a trust, the threshold is that all of the beneficiaries are Canadian citizens or residents. Many trusts, particularly testamentary trusts – trusts created by a will – may have non-Canadian beneficiaries. Estate trustees must file a return if the estate assets included a residential property on December 31. There is a potential impact on testamentary trusts as the exemption from taxation only applies to the year in which the testator died and the subsequent year. Cottages or other residential property held through a family trust or cottage trust also trigger the filing requirement. It cannot be over-emphasized that there is no exemption from the penalties for failure to file a return for each residential property so owners of private corporations, partners in partnerships, trustees, and executors need to be vigilant if any of the assets of these entities meet the definition of residential property in the Act. Residential property is described as follows: residential property means property (other than prescribed property) that is situated in Canada and that is (a)a detached house or similar building, containing not more than three dwelling units, together with that proportion of the appurtenances to the building and the land subjacent or immediately contiguous to the building that is reasonably necessary for its use and enjoyment as a place of residence for individuals; (b)a part of a building that is a semi-detached house, rowhouse unit, residential condominium unit or other similar premises that is, or is intended to be, a separate parcel or other division of real or immovable property owned, or intended to be owned, apart from any other unit in the building together with that proportion of any common areas and other appurtenances to the building and the land subjacent or immediately contiguous to the building that is attributable to the house, unit or premises and that is reasonably necessary for its use and enjoyment as a place of residence for individuals; or (c)a prescribed property Whether or not a property is “owned” is based on whether it holds legal title or a lease, it is not based on beneficial ownership. Whether or not the tax applies depends on a number of factors set out in the Act which determine whether the property is “underused” in the year. It should be noted however that there is no exemption from taxation for properties that meet the statutory definition of residential property and are not vacant, but are used for non-residential purposes such as offices, hotels, or vacation rentals. If you are an executor trustee or partner or have an interest in a private corporation, partnership or trust that holds residential property you should be prepared to register and file a return, or obtain professional assistance in doing so. Remember that the UHTA is reported on a calendar year basis, so corporations will have to file by the end of April each year even if they have an off-calendar year-end. The filing deadline for this year is May 1st, 2023 as April 30 falls on a Sunday. “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 situations and needs.” By Fauzan SiddiquiBlog, TaxFebruary 6, 2023June 10, 2023
Norwich Orders: A Powerful Tool For Gathering Evidence and Locating Stolen Assets An employer being defrauded by an employee is often faced with a difficult problem: how to gather information about the fraud and the location of stolen assets, including money, before the employee takes steps to destroy evidence and dissipate or hide misappropriated assets? To address this problem, Ontario courts may compel an innocent third party to disclose otherwise confidential information about a client, including his or her assets as well as the history and use of bank accounts and credit facilities. It does so by way of a “Norwich order”, named after a British case, which permits the victim to obtain information from third parties for the purpose of proving a fraud, identifying the wrongdoer, and recovering stolen property. An application for a Norwich order can be brought without notice, may be heard in a closed courtroom and will often be joined with confidentiality orders, including one which seals the court file for a certain period, so as to avoid tipping off the wrongdoer. The order is, however, an extraordinary one, requiring the following: that the applicant for it show that the fraud claim is valid, bona fide and not frivolous or vexatious; that the third party from whom information is being sought is “involved”, even innocently, as will be the case with a bank holding, without knowing, stolen funds on deposit; that the third party is the only practicable source for the information being sought; that the applicant indemnify the third party for the costs associated with compliance with the order; and that after weighing the interests of and potential injury to the parties involved, the court is satisfied that it is in the interests of justice that the order be made. Once granted, a Norwich order can be a powerful tool. With it, an employer can gather information that will often be critical to unraveling a fraud and determining where stolen property has gone – ideally well before the wrongdoer knows that he or she has been found out. The employer can then take steps to try to freeze assets and to preserve evidence. “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 situations and needs.” By Fauzan SiddiquiBlog, LitigationFebruary 3, 2023June 10, 2023
Homeowner Beware: A Reminder That You Should Consider Title Insurance For Your Home A recent headline in the Toronto Sun caught my eye: Homeowners urged to get title insurance after Etobicoke real estate fraud.[1] The related article tells the tale of unknown individuals who allegedly impersonated the owners of a home and sold it while the owners were away. The story includes a recommendation from Tim Hudak, of the Ontario Real Estate Association, to get title insurance for your home. In addition to being the place where you live and raise your family, the home is often your largest single asset. What do you do if you find out one day that the registered owner of it is someone whom you have never heard of or that there is now a whopping $500,000 mortgage on it to which you did not agree? How do you navigate trying to undo the fraud? Reporting the matter to the police can be important, but it will not reverse the fraud. Having title insurance which insures your property against fraud may be the answer. We often get retained by title insurers to take the legal steps necessary to fix or delete fraudulent transfers and fraudulently registered mortgages, the consequence of which could otherwise be devastating. So, what is title insurance? In general terms, it is insurance to protect property owners and lenders against certain losses related to the property’s ownership and interests in it. It is available in Ontario from several insurers, including FCT,[2] Stewart Title Guaranty Company,[3] Chicago Title (Canada),[4] and TitlePLUS.[5] What does it cover? The title policy in question will set out what insurance is provided. Generally speaking, however, title insurance will cover, among other things, fraudulent registrations against the property, unknown title defects which may affect ownership, some liens, encroachments and right-of-way issues, and errors in surveys and public records. What does title insurance cost? Like other insurance, you need to pay a premium to obtain it. Unlike most other types, the premium is a one-time payment, usually a few hundred dollars, and, best of all, the insurance normally continues as long as you own the insured property. Mr. Hudak’s recommendation constitutes good advice. Every homeowner should, at the very least, consider title insurance. A good place to start is to ask your lawyer about it, especially before you buy your home. “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 situations and needs.” By Fauzan SiddiquiBlog, Real EstateJanuary 23, 2023July 5, 2023
Entering Canada After Being Convicted of an Offence (Criminal Rehabilitation vs. Record Suspension (Pardon)) By Dayna Devonish-Montique and Abby Leung Individuals who were convicted of a minor or serious criminal offence may be considered inadmissible to enter Canada. However, individuals can overcome this criminal inadmissibility either by applying for criminal rehabilitation or a record suspension/pardon. This blog will detail the requirements for both processes to determine eligibility to enter Canada. Criminal Rehabilitation Under Canada’s immigration laws, individuals who have committed or have been convicted of a minor or serious crime outside Canada may not be allowed to enter Canada and are considered “criminally inadmissible”. Depending on the crime, how long ago the crime was committed, and the individual’s behaviour since the crime was committed, individuals may still be allowed to come to Canada under this category if they are deemed rehabilitated or if an immigration officer approves an application for criminal rehabilitation. Deemed rehabilitation under Canada’s immigration laws means that enough time has passed since the crime was committed so that the individual’s criminal history does not bar entrance to Canada. Individuals are eligible to apply for deemed rehabilitation at a port of entry if the individual only had one conviction in total or committed only one crime, at least ten years have passed since the completion of all sentences, the crime committed is not considered a serious crime in Canada, and the crime did not involve any serious property damage, physical harm to any person, or any type of weapon. If an applicant believes that they are eligible, they must provide required documents including a recent police certificate from the country they were convicted in, along with court documents for each conviction, a recent criminal record check, and a passport or birth certificate. If deemed rehabilitated, applicants will be allowed to enter Canada, provided that they meet additional requirements for entry such as visitor visa requirements. Any request for deemed rehabilitation is not guaranteed to be approved. If an individual is not eligible to apply for deemed rehabilitation, they may apply for criminal rehabilitation if the criminal act occurred outside of Canada and if five years have elapsed since the act or since the end of the sentence imposed. An application for criminal rehabilitation for a US applicant requires submitting a state police certificate, an FBI police certificate, documents relating to the sentence imposed, and court judgments that demonstrate the charge/s, the verdict, and the sentence imposed, among other documents. If an individual needs to travel to Canada but cannot apply for rehabilitation because five (5) years have not passed since the end of the sentence imposed or are not eligible to apply for a record suspension, they must request special permission to enter or remain in Canada. After reviewing the application, an immigration officer may advise that the applicant could apply for special permission (temporary resident’s permit) to enter Canada, or to advise that they do not recommend that the applicant travel to Canada. Record Suspension (Pardon) A record suspension (previously called pardon) allows people who were convicted of a criminal offence but have completed their sentence and demonstrated that they are law-abiding citizens to have their criminal record kept separate and apart from other criminal records. A record suspension has the effect of removing a person’s criminal record from the Canadian Police Information Centre (CPIC). However, a record suspension does not erase a convicted offence nor guarantees entry or visa privileges to another country. A record suspension can be revoked or cease to have effect if the applicant is convicted of a new indictable offence, is found to no longer be of good conduct, found to have made a misleading statement, or is found ineligible for a record suspension at the time the record suspension was ordered. If a record suspension is revoked or ceases to have effect, the record of offence is added back to CPIC. An applicant may apply for a record suspension if they were convicted of an offence in Canada under a federal act or regulation of Canada as an adult and/or were convicted of a crime in another country and were transferred to Canada while serving that sentence under the International Transfer of Offenders Act. An applicant does not need to apply for a record suspension if the applicant only received an absolute or conditional discharge, or were only convicted in a youth court or youth justice court. To apply for a record suspension, an applicant must have completed all of their sentences which includes all fines, costs, restitutions, sentences of imprisonment, conditional sentences, probation orders, etc. The waiting period begins after an applicant has completed all of their sentences. The following table provides a short summary of the waiting periods: Date Waiting Period Before June 29, 2010 · 5 years – an offence prosecuted by indictment · 3 years – an offence punishable on summary conviction Between June 29, 2010 and March 12, 2012 · 10 years – serious personal injury offence including manslaughter, an offence where an individual was sentenced to a prison term of 2 years or more, and an offence referred to in Schedule 1 that was prosecuted by indictment · 5 years – any other offence by indictment and an offence referred to in Schedule 1 that is punishable on summary conviction · 3 years – an offence other than the ones mentioned above, that is punishable on summary conviction. On or after March 13, 2012 · 10 years – an offence prosecuted by indictment · 5 years – an offence that is punishable on summary conviction. If eligible to apply, applicants can apply directly to the Parole Board of Canada (PBC) for a Record Suspension. Applicants must provide their criminal record, court information for each of their convictions, local police record checks, and documents to support identification, among other forms. Conclusion While criminal rehabilitation and record suspensions appear similar on its face, an important difference is that criminal rehabilitation focuses on criminal offences committed outside Canada while record suspensions focus on criminal offences committed within Canada. When the conviction is inside Canada, rehabilitation is not an option and applicants can apply for record suspension. Conversely, when the conviction is outside Canada, record suspension is usually not an option (unless convicted of a crime in another country and were transferred to Canada while serving that sentence under the International Transfer of Offenders Act) and applicants can apply for rehabilitation. Important to note, if an individual committed offences both inside and Canada and, they require both an approval of rehabilitation and a record suspension in order to be admissible to Canada. The request for criminal rehabilitation cannot be made until a record suspension is first approved, unless the individual has only one (1) summary conviction offence in Canada. If you have any questions related to your immigration law matter, please visit our website or contact Dayna Devonish-Montique at Devry Smith Frank LLP at 705-526-9328 ext 101 or at dayna@prostlaw.com. “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 situations and needs.” This blog was co-authored by student-at-law, Abby Leung By Fauzan SiddiquiBlog, ImmigrationJanuary 17, 2023June 10, 2023
Welcome to Canada: Canada Grants Unprecedented Number of Permanent Residency Permits in 2022 On January 3, 2023, Immigration Refugees and Citizenship Canada (IRCC), the federal department responsible for the processing of immigration applications, announced that Canada welcomed over 437,000 new immigrants in 2022.[1] This number is higher than the target set at 431,645 new immigrants in Canada by the end of 2022, and marks a new record for the number of Canadian permanent residence admissions in one year, breaking the previous record of over 405,000 new immigrants in 2021.[2] In achieving this record, IRCC credits new technology, streamlined processing, and the use of online applications. IRCC processed over 4.8 million applications across all lines of business in 2022 which includes applications for permanent residence, temporary residence, and citizenship. This is double the number of applications processed in 2021.[3] IRCC has emphasized the importance of immigration as a key part of Canada’s long-term economic growth plan. Economic migration addresses labour shortages and stimulates the Canadian economy by providing government and business with critical workers. Shortages of skilled workers in industries such as healthcare, manufacturing, building trades and STEM (Science, Technology, Engineering and Math) are acute and require a high number of skilled immigrants and workers to fill these positions. New features in Express Entry will target qualified immigrants in these sectors. Additional measures to promote economic growth include regional programs to address labour needs and in-demand skillsets for small towns and rural communities. IRCC has also struggled to keep up with the backlog of applications resulting from the COVID-19 pandemic. As pandemic-related restrictions eased, the number of processed applications steadily increased in 2022, with the federal government moving forward with its plan to boost the number of immigrants in Canada. The immigration levels plan for 2023-2025 sets an ambitious target of welcoming approximately 500,000 new permanent residents each year by 2025, with a target of 465,000 new immigrants for 2023.[4] As IRCC continues to add more resources, streamline processing, and expand its programs, immigration will remain a priority in achieving Canada’s economic goals. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in the Immigration Law Group. This blog was co-authored by student-at-law, Abby Leung [1] https://twitter.com/CitImmCanada/status/1610403133355659264 [2] https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/12/canada-welcomes-historic-number-of-newcomers-in-2022.html [3] https://www.canada.ca/en/immigration-refugees-citizenship/news/2022/12/canada-marks-record-breaking-year-for-processing-immigration-applications.html [4] https://www.canada.ca/en/immigration-refugees-citizenship/news/notices/supplementary-immigration-levels-2023-2025.html By Fauzan SiddiquiBlog, ImmigrationJanuary 9, 2023June 10, 2023
