Title Insurance 101 You just moved into your new property. You go to install a new fence, and you discover that it’s not on the property line – 6 inches of your land has been on your neighbor’s side of the fence for years! Uh oh… now what? Title insurance might save the day! What is Title Insurance? Title insurance is a type of insurance policy that protects property owners and lenders from losses associated with title issues or other covered risks. “Title” describes your legal right of ownership to the land. Effectively, title insurance allows purchasers to insure against future potential title issues, rather than conducting additional due diligence at the outset of the transaction. Title insurance requires one-time payment, with the policy being effective for as long as you own the property. Common Coverage Offered by Title Insurance The following is a non-exhaustive list of potential issues that a standard title insurance policy may cover: Title defects Unmarketability of title Legal issues involving access Encroachment issues, adverse possession, property line disputes Easements over the property (i.e. Someone has a legal right of way over the property) Liens or charges on title Work orders from a municipality Tax or utility arrears from previous owner Certain violations of municipal regulations Title fraud or forgery Title insurance policies also usually contain a litigation provision in which the insurer undertakes to defend your title and other insured risks in any court case that is based on the provisions in your policy. For example, if a neighbour was to build a structure that encroached onto your land, if covered under the policy, the title insurer may assist in retaining counsel on your behalf, commencing a proceeding, and may pay for all legal fees and expenses incurred to rectify the issue. What is Not Covered? Title insurance policies often contain numerous exemptions or restrictions that are not typically afforded under a standard policy. Some title insurers will provide additional endorsements, depending on the circumstances at hand, to meet your specific needs. If title insurance does not insure over an issue, you will need to speak with your lawyer for further direction on how to proceed. The following is a non-exhaustive list of issues that are not usually covered by a standard title insurance policy: Physical and structural defects to the property Certain governmental powers/intervention (i.e. expropriation, violation of by-law etc.) Environmental risks Risks that are created by, allowed by, known to, or agreed to by the insured A common area of confusion lies in the distinction between title insurance and home insurance. While home insurance protects an insured from unexpected loss or damage to the physical property, title insurance protects the insured from loss or defects relating to the legal title of the property. It is imperative to note that title insurance is not an alternative to home insurance. Is Title Insurance Mandatory? It is not mandatory to purchase title insurance when acquiring a property in Ontario. Nevertheless, a lender may refuse to provide financing if a title insurance policy is not taken out on their behalf (i.e. a lender policy). The most common alternative to title insurance is to obtain a solicitor’s opinion on title. This alternative requires your lawyer to conduct numerous “off-title” searches that can be costly and time consuming. You would also need to provide your lawyer with, or obtain, an up-to-date survey of the property. The cost to obtain an up-to-date survey alone would likely exceed the cost of a standard title insurance policy, which is why many mortgagors opt to obtain title insurance. Furthermore, the only recourse that a purchaser may have in relation to a missed title defect would be against the lawyer who provided the opinion, which may be further limited given the circumstances and conduct of the parties. Given the potential liability for giving a solicitor’s opinion on title, many lawyers refuse to act on transactions that are not title insured. Working with your Lawyer While title insurance may provide coverage for certain losses, it is not an alternative to retaining a lawyer on your transaction, and there is no replacement for sound legal advice and competent representation. Title insurance and lawyers work in conjunction to provide maximum protection to homeowners. For example, if you do find yourself needing to commence litigation against a neighbor, it is often worth first checking if your issue is covered by title insurance. If you have questions about property-related litigation or title insurance, please contact Graeme R. Oddy, lawyer at Devry Smith Frank LLP at 416-446-5810 or Graeme.oddy@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.” This blog was co-authored by Articling Student Jaimin Panesar* By AlyssaBlog, LitigationJanuary 31, 2024
My Neighbour’s Old Renovation Has Been Continually Damaging My Property – Can I Still Make a Claim or is it Statute-Barred? Your claim may be “statute-barred” if it falls outside of the limitation periods within your jurisdiction. The Limitations Act, 2002 sets out two main limitation periods for claims commenced in Ontario: (1) a general 2-year limitation period, beginning when the claim was discovered and (2) an ultimate 15-year limitation period, regardless when the claim was discovered. These limitation periods were both considered by Tyszko v St. Catherines (City), a recent decision from the Superior Court of Justice. This case mainly addressed the following question: does a claim for ongoing property damage resulting from work completed nearly twenty years earlier fall outside the ultimate 15-year limitation period? The Facts This decision centered around a motion for summary judgment commenced by the plaintiff, Mr. Tyszko, against the City of St. Catherines for damage resulting from work they completed near the plaintiff’s property. On September 12, 2002, the City installed new storm sewers at the plaintiff’s property. Since then, whenever it rains, water flooded the property instead of draining onto the road. In 2021, the plaintiff sought compensation for repairs made to the property, loss of enjoyment of the property, and his mental distress caused by the claim. In 2015 and 2016, the plaintiff began to notice that rain would come toward his parents’ house instead of onto the street and that cracks were appearing in the basement and around the house. When the plaintiff acquired title to the property in October 2017, he immediately complained to the City about the drainage problem. After getting nowhere with the City, the plaintiff retained a lawyer, who wrote to the City in January, April, and May 2018. In May 2019, the lawyer wrote again, threatening legal action. The City did not respond until the plaintiff’s lawyer followed up in January 2021. An adjuster for the City then investigated the plaintiff’s claim and rejected it on March 12, 2021. The plaintiff finally commenced his statement of claim on July 13, 2021. The City argued that the claim was statute-barred by the ultimate 15-year limitation period or, alternatively, the general 2-year limitation period. The plaintiff disputed these arguments. He held that the 15-year limitation period did not apply as the damage was ongoing; moreover, as he did not know that a legal proceeding was the appropriate remedy until the City denied his claim in March 2021, his claim fell within the general 2-year limitation period. Justice M. Bordin accepted the City’s argument; the claim was barred under both limitation periods. The Ultimate Limitation Period Subsection 15(2) of the Act states that “[n]o proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”[1] This 15-year limitation period applies even if the claim remains undiscovered for the entirety of the fifteen years.[2] Under subsection 24(5) of the Act, if an act or omission took place before the Act came into effect on January 1, 2004, and if the claim was not discovered at that time, then the Act applies as if the act or omission had taken place when the Act came into effect.[3] This would apply here: the City’s alleged negligent act occurred in 2002 and was not discovered until well after 2004. As a result, the 15-year limitation period for this act would have expired on January 1, 2019, over two years before the claim was commenced.[4] Do the Exceptions under Subsection 15(6) of the Act Apply? Subsection 15(6) of the Act provides some exceptions to the ultimate limitation period if (a) there is a continuous act or omission, (b) a series of acts or omissions in respect of the same obligation, or (c) an act or omission in respect of a demand obligation. For (a) and (b), the date of the claim is the last time the act or omission occurs.[5] The plaintiff argued that this claim involved a continuous action under subsection 15(6)(a), as the damage worsened every time it rained. Alternatively, the claim was a result of a series of acts or omissions in respect of the same obligation under subsection 15(6)(b), as the City had an ongoing obligation to ensure that water flowed onto the road and not adjoining properties.[6] Justice Bordin rejected both of these arguments. A “continuous cause of action” was defined in Sunset Inns v Sioux Lookout (Municipality) as a cause of action which arises from a repetition of the same acts or omissions which the action sought to address.[7] Justice Bordin found that a failure to rectify an alleged act of negligence is not the same as a series of acts of negligence.[8] The City’s only alleged act of negligence was the work completed in 2002 and a single breach with continuing consequences does not fall under s. 15(6)(a). As discussed in a previous blog, courts have recognized “rolling limitation periods” in the context of breaches of contractual obligations, as discussed in s. 15(6)(b). In these cases, the limitation period resets every time the defendant breaches one of their obligations. However, the plaintiff failed to provide any legal authorities for an obligation owed by the City.[9] Do the Exceptions under Subsection 15(4) of the Act Apply? Subsection 15(4) of the Act states that that ultimate limitation period does not run when (a) the person with the claim is incapable of commencing a proceeding due to their physical, mental, or psychological condition; (b) the person is a minor, or (c) the defendant wilfully conceals the claim or misleads the plaintiff about it.[10] The plaintiff claimed under s. 15(4)(c)(ii) that the City misled him when their insurers failed to contact him. However, Justice Bordin found no evidence that the City instructed the plaintiff to hold off on commencing legal proceedings until they heard from the City’s insurers or the City conducted an investigation.[11] There was nothing preventing the plaintiff from commencing a legal proceeding while waiting to hear from the City before the ultimate limitation period ended. The General Limitation Period Section 4 of the Act states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”[12] Section 5(1) of the Act describes when a claim is ‘discovered’: 5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).[13] A claim is “discovered” and the limitation period is triggered when a plaintiff has sufficient knowledge – that is more than suspicion and less than perfect – that the defendant’s act or omission contributed to or caused their loss.[14] A plaintiff does not need comprehensive knowledge or know the extent of the damages caused by the claim.[15] Here, the plaintiff had enough knowledge of his damages to make the claim by May 2018 and knew that legal proceedings were an appropriate means to seek a remedy by the time of his lawyer’s letter to the City on May 22, 2019.[16] Justice Bordin also rejected the plaintiff’s assertion under s. 5(1)(iv) of the Act that he did not know that a legal proceeding was an appropriate remedy until the City’s rejection of his claim on March 12, 2021. The plaintiff was not required to wait for the City to respond to his demands, there was no alternative means of compensation underway at the time, and the plaintiff could not explain why he waited two years for a response from the City before commencing proceedings.[17] Conclusions This case serves as a warnings to plaintiffs to be aware of any relevant limitation periods when commencing an action. Namely: If the act or omission resulting in your claim occurred more than fifteen years ago, then the claim is statute-barred, regardless of whether the consequences from the Act have continued. The continuing consequences of a single act of negligence is different than continuing acts of negligence, which can constitute an exception to the ultimate 15-year limitation period under s. 15(6)(a) of the Act. Waiting for a response from the defendant without a concrete alternative means of compensation is not sufficient to engage s. 5(1)(a) of the Act and delay your discovery of when a legal proceeding is the appropriate remedy. For more information regarding litigation, please contact Gabriella Schneider or call us at 416-449-1400 for your available options or to book a consultation. “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 law student, Leslie Haddock. [1] SO 2002, c 24, Sched B, s 15(2) [LA]. [2] See York Condominium Corporation No. 382, 2007 ONCA 49 at para 5 and Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429 at para 69. [3] LA, supra note 1, s 24(5). [4] Tyszko v St. Catherines (City), 2023 ONSC 2892 at para 37 [Tyszko]. [5] LA, supra note 1, s 15(6). [6] Tyszko, supra note 4 at paras 40-42. [7] 2012 ONSC 437 at paras 20-24. [8] Tyszko, supra note 4 at para 44. [9] Ibid at para 42. [10] LA, supra note 1, s 15(4). [11] Tyszko, supra note 4 at para 49. [12] LA, supra note 1, s 4. [13] Ibid, s 5(1). [14] Zeppa v Woodbridge Heating & Air-Conditioning Ltd, 2019 ONCA 47 at para 41. [15] Taylor v David, 2021 ONSC 3264 at paras 16-17. [16] Tyszko, supra note 4 at para 57. [17] Ibid at paras 60-65. By Fauzan SiddiquiBlog, LitigationJuly 17, 2023July 17, 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
Settlement Agreements Are Not a Done Deal! Is the Court bound by the agreement between the parties? The court explores – Whether the court is bound by an agreement made between the parties in order to reach a settlement? In the recent Court of Appeal decision, Richardson[1], the court looked at a trial decision that was contrary to a settlement that the parties had negotiated. The Court of Appeal was faced with the question of whether the trial judge’s refusal to accept the negotiated settlement between the parties was contrary to the best interests of the children, the principles of fundamental justice, and indicative of bias. The Court of Appeal said no and concluded that they would not interfere with the trial judge’s decision to not accept the settlement between the parties. In the court process, parties often negotiate a settlement in order to avoid trial. A settlement can be reached at any time during the process. One of the goals of the family court process is to encourage resolution between the parties when possible. An offer to settle should set out all the ways in which the disputed issues can be settled. Parties are strongly encouraged to consider ALL offers because rule 18(14) provides costs consequences for failing to accept an offer if the party who made the offer obtains an order that is favourable as or more favourable than the offer. If the other party makes you an Offer to Settle, you do not accept that Offer, and the order ultimately made by the court is as favourable or more favourable to the offering party than their Offer was, the offeror is entitled to their legal costs, unless the court orders otherwise, to the date the Offer was served, and full recovery of costs from that date. In other words, if the offer that is presented to you ends up being better than what you received when you went to trial, you may have to pay substantial costs to the other side. In the Richardson[2] case, the parties advised the trial judge, during the trial, that they were negotiating a settlement. The trial judge granted an adjournment but advised the trial would continue the following day whether or not a settlement had been reached. The proposed settlement was presented to the judge the following day. The settlement contained language that the children would move from one party’s primary custody (father) to the other party’s primary custody (mother); however, the final decision-making would remain with the father. This move involved significant travel (Niagara Falls to Ottawa). The trial judge reviewed the proposal and refused to approve it. No reasons provided. The trial judge decided that a move from one party’s residence to the other was not in the children’s best interest; furthermore, the trial judge amended the time sharing to reduce travel, ultimately reducing the mother’s access to the children. This case was brought to the Court of Appeal to explore the rejection of the proposed settlement. It is well established that judges have the authority to review settlements and to reject them if they are not in the best interests of the children[3]. The Court of Appeal stated: “whether a settlement is in the children’s best interests should take into account more than just the settlement terms. It should also consider the general benefits to children that flow from parents resolving their disputes through compromise rather than litigation”. While rejecting the proposed settlement undermines the settlement process and the court’s duty to help the parties settle their case[4], the Court of Appeal found that: “the findings of the trial judge, which were made after a full hearing on the merits and are not contested on appeal, make clear that sound bases exist for rejecting the proposed settlement”. This decision leaves the question – given the strongly encouraged process of settlement, how and why was the Richardson agreement not upheld? Ultimately, this decision reveals that, even when a settlement is proposed, the judge can reject the proposal if it fails to meet the threshold of “best interests of the child”. In this case, the dissent of Justice Nordheimer is noteworthy. He stated: “In my view, the conduct of the trial judge with respect to his rejection of the parties’ settlement, without reasons, so tainted the conduct of the proceeding that his disposition cannot be allowed to stand. To do otherwise fundamentally undermines the need for court proceedings not only to be fairly conducted but, as importantly, be seen to have been fairly conducted”. If you are contemplating a settlement outside the trial process, it is worthwhile to discuss your case with a family lawyer prior to signing. If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP to discuss any questions regarding your specific family law situation and your options 249-888-6641 or kenna.bromley@devrylaw.ca. This blog was co-authored by Law Student, Kathleen Judd. “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.” [1] Richardson v. Richardson, 2019 ONCA 983 [2] Ibid [3] Martin v. Martin, 1981 CarswellBC 773 (C.A.), at para. 7; C.T.G. v. R.R.G., 2016 SKQB 387, 86 R.F.L. (7th) 312, at para. 11; and Harper v. Harper (1991), 1991 CanLII 8330 (ON SC), 78 D.L.R. (4th) 548 (Ont. Gen. Div.), at p. 553 [4] Family Law Rules, O. Reg. 114/99, r. 2(5)(c) By Fauzan SiddiquiBlog, LitigationOctober 4, 2022July 5, 2023
Time Keeps Moving On, and On, and On… But What Resets the Clock? Ontario’s Common Law Rolling Limitation Period In Ontario, the ability to sue or bring a civil claim against a person or other party is subject to a statutory limitation period, which is essentially a time limit for a party to commence, or bring forth, a claim against another party. Though subject to some exceptions, the statutory limitation period in Ontario is typically two years from the date the claimant discovers the claim. This general rule is outlined in sections 4 and 5 of Ontario Limitations Act (the “Act”) which provides the following: Basic Limitation Period 4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Discovery 5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). An exception to the standard two year limitation period is found in instances where there is a reoccurring breach of a contractual obligation such that it creates a ‘rolling limitation period’. This common law exception was established by the Ontario Court of Appeal in Pickering Square Inc. v. Trillium College Inc. (“Pickering Square v Trillium College”).[1] The court in Pickering Square v Trillium College held that where an ongoing obligation is owed by one party to another under a contract, the limitation period will ‘reset’ each time there is a breach. Due to the ongoing nature of the obligation, each instance of a failure to perform one’s duties under a contract will be considered a separate breach for the purpose of determining the limitation period. In Pickering Square v Trillium College, the commercial tenant was deemed to have committed a breach each day it failed to operate its business in the rented premises pursuant to the lease agreement. Therefore, the limitation period would reset every day the unit was vacant until the end of the lease term. Rather than treating the breach as a singular event which occurred on the date the unit was vacated and thus statute barred, the Landlord was able to claim damages for each day a breach occurred in the two years prior to the claim being brought. The common law rolling limitation period was revisited and clarified in Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635 (“Marvelous Mario’s v St. Paul”).[2] In this case, the insured plaintiff suffered business interruption losses for which it sought insurance coverage. The defendant insurer’s commercial insurance policy provided a contractual limitation period of one year, and because over one year had elapsed since the initial loss was discovered, the insurer attempted to argue the claim was statute barred. The trial judge found that a rolling limitation period applied and that each day the insurer failed to pay the limitation period renewed. The Ontario Court of Appeal clarified the basis of a rolling limitation period as follows: The jurisprudence suggests that a rolling limitation period may apply in a breach-of-contract case in circumstances where the defendant has a recurring contractual obligation. The question is not whether the plaintiff is continuing to suffer a loss or damage, but whether the defendant has engaged in another breach of contract beyond the original breach by failing to comply with an ongoing obligation. In cases where there have been multiple breaches of ongoing obligations, it is equitable to impose a rolling limitation period.[3] Determining when a limitation period has begun and whether a dispute will be subject to rolling limitation period will ultimately depend on the facts. If you have any questions about limitation periods or commercial law generally please contact Ryan Stubbs at (416)-446-3309 or Ryan.Stubbs@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 Chloe Carr* [1] Pickering Square Inc. v. Trillium College Inc., 2016 ONCA 179 (CanLII). [2] Marvelous Mario’s Inc. v. St. Paul Fire and Marine Insurance Co., 2019 ONCA 635 (CanLII). [3] Ibid at para 35. By Fauzan SiddiquiBlog, LitigationSeptember 15, 2022June 10, 2023
Fraud Against The Elderly Via Continuing Power Of Attorney For Property When people get older and their mental capacity dwindles, it can be a great relief to have someone else look after one’s financial affairs. There often comes a time in our lives when it becomes difficult to keep track of bills and payments and to keep the necessary overview required to make financial decisions. A trusted relative or friend may be willing and able to help when such tasks become more and more cumbersome. A continuing power of attorney for property is an excellent tool that permits the ‘grantor’ to grant a power of attorney (POA in the following) to a person of their choice who will remain in charge of the grantor’s property even in the event the grantor becomes mentally incapable. That is why it is called a continuing power of attorney. Scope With great power comes great responsibility and on the flip side great risk of abuse. The more encompassing the POA, the more vulnerable the elderly. S. 7(2) of the Substitute Decision Act (SDA) provides that a grantor may authorize the attorney to do anything in respect of property that the grantor, if capable, could do, except make a will. The grantor may also decide to limit the scope of authority to mitigate some of the risks that come with granting a POA. For example, the attorney may only be entitled to deal with certain assets, or the commencement of the power may be postponed to a specific time or event, i.e. when the grantor becomes mentally incapable. Such limitations would need to be clearly written into the POA. The POA loses its effect of entitling the attorney to act on the grantor’s behalf in property matters once the grantor dies. Legal Requirements According to s. 8 of the SDA, the grantor is capable of giving a continuing POA if the grantor knows what kind of property the grantor has and its approximate value;is aware of obligations owed to the grantor’s dependants;knows that the attorney will be able to do on the grantor’s behalf anything in respect of property that the grantor could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney;knows that the attorney must account for the attorney’s dealings with the grantor’s property;knows that the grantor may, if capable, revoke the continuing power of attorney;appreciates that unless the attorney manages the property prudently, its value may decline; andappreciates the possibility that the attorney could misuse the authority given. Fraudulent Schemes A relative, an alleged friend, or even a stranger may fraud the elderly victim by having them sign a POA by misrepresenting its content or scope to them. Such a POA does not meet the above-mentioned requirements and is void. Yet, third parties may rely on the signed POA nevertheless and conduct business with the fraudster. While such transactions are void and legally the sold asset is recoverable, there might be insurmountable practical hurdles to recovery. The asset may simply have disappeared by the time the fraud is discovered. If the asset is a piece of land, there are certain statutory protections against a title transfer by a fraudster. However, if a good faith purchaser who bought the land from the fraudster resells the land and title is registered for the benefit of the next purchaser, the title of the original owner is extinguished. There even remains a risk of abuse after the grantor has died because third parties with whom the attorney conducts business purportedly on behalf of the deceased grantor may not know of the grantor’s death. They may again reasonably rely on the POA presented to them by the attorney. This risk is at this stage of course a risk for the estate of the deceased grantor. These extreme examples are criminal matters, as they are in clear violation of s. 331 of the Criminal Code ‘Theft by person holding power of attorney’. Another scheme can be conducted with a perfectly valid POA. The attorney may decide not to act solely in the interest of the grantor, as he or she is obliged to do under the SDA. For example, the attorney has the power to make gifts and loans to the grantor’s friends. This is deemed to be in the interest of the grantor by the SDA. A limit imposed on such gifts is the unduly depletion of the grantor’s property to a degree where it does not suffice to satisfy the support and care of the grantor. Obviously, where this line must be drawn is quite debatable and the attorney has significant leeway under the law. A further restriction to the attorney’s power lies in the fact that, if challenged, the attorney must prove that he or she had reason to believe, based on the intentions of the grantor expressed before becoming incapable, that the grantor would have made the gift as well. The reality is those elderly people who do not have the mental capacity to look after their own assets are also not in the position to challenge the abuse of a power of attorney. They are helpless and rely on better friends or kinder relatives to look after their interests. If you believe you discovered POA fraud performed on a grantor, do not hesitate to reach out to DSF lawyer Tracey Rynard at Tracey.Rynard@devrylaw.ca or 249-888-6647 for assistance with this litigation matter. “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, Litigation, Wills and EstatesMay 7, 2021May 7, 2021
The New Tort of Internet Harassment The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, a decent society.The internet has cast that balance in disarray.[1] In a ground-breaking decision, the Superior Court of Justice has just recognized the tort of internet harassment as a response to a defendant’s “campaigns of malicious harassment and defamation carried out unchecked for many years”.[2]The facts are astonishing. The defendant, who had at one point worked for a real estate agency, waged an unrestrained campaign against individuals whom she perceived had wronged her, their relatives and associates.[3] The court’s decision says that, among other things, she did the following:· posted altered newspaper articles and other content to the internet describing the brother of one of the lawyers in the case, a respected cardiologist living outside Ontario, as a pedophile and child pornographer;[4]· initiated a campaign against two sons-in-law of the same lawyer;[5]· attacked family members of another lawyer, going so far as to send defamatory email message to employees at the bank at which one her daughters worked;[6]· started posting defamatory statements about an employer who had fired her in the 1990s,[7] by first accusing him of fraud and theft, then moving to claims that he was a pedophile;[8] · sent an email message, which was falsified to make it appear that it came from someone who turns out to be a judge in West Virginia, to members of a club to which the employer and his sons belonged, accusing them of being pedophiles;[9]· attacked lawyers who had acted in mortgage proceedings against her, claiming that they were guilty of mortgage fraud;[10]· launched attacks which moved “from professional misconduct to allegations of sexual criminality, most frequently pedophilia or sexual predation”;[11] · *provoked more than 40 in addition to a number of administrative proceedings;[12]· sought to have 26 judges removed from hearing matters involving her;[13]· engaged the “litigation process to prolong conflict through endless procedural techniques”;[14]· appears to have had someone in northern Ontario post material,[15] presumably to throw investigators off the scent;· spent 74 days in custody for contempt of court;[16] and· found to be a vexatious litigant.[17]The court found that the defendant had defamed the plaintiffs and described her conduct in the following terms:. . . [her] online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go beyond character assassination; it is intended to harass, harry and molest by repeated and serial publications of defamatory material not only of primary victims, but to cause those victims further distress by targeting person they care about, so as cause fear, anxiety and misery. Observing that the “prevalence of online harassment is shocking”,[18] the law had failed effectively to respond to the defendant’s actions,[19] there are “few practical remedies available for the victims”,[20] and that courts in the United States had recognized the tort of harassment,[21] the court arrived at the conclusion that the tort of internet harassment should exist in the law of Ontario and that it should apply to the case before it. The relevant test for it, which is described as “stringent”,[22] is set out as follows:· the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;· with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and· the plaintiff suffers harm. The decision raises a number of questions: How are damages to be quantified? Will the new tort of internet harassment withstand appellate scrutiny, particularly in light of the Court of Appeal’s recent rejection of an award of damages for the tort of harassment?[23] What does the first branch of the test – which would appear to require malicious, outrageous and extreme conduct – really mean? Cyber-harassment can ruin businesses, reputations and lives. Social media platforms, courts and legislatures need to develop policies and tools to stop it and to protect innocent victims. The new tort of internet harassment, as it develops, might be one tool, hopefully of many, to help bring the harassment to an end. [1] Caplan v. Atas, 2021 ONSC 670 [hereinafter Caplan] at paras 4-5. The decision can be found here. [2] Ibid., at para.1 [3] Ibid. at paras. 1 – 3. [4] Ibid. at para. 36. [5] Ibid. at para. 37. [6] Ibid. at 38. [7] As well as other parties: Ibid. at para. 62. [8] Ibid. at para. 62. [9] Ibid. at para. 63. [10] Ibid. at para. 32. [11] Ibid. at para. 34. [12] Peoples Trust Company v. Atas, 2018 ONSC 58 [hereinafter Peoples Trust] at para. 21. [13] Ibid. at para. 23. [14] Caplan, supra note 1 at para. 86. [15] Ibid. at paras 131 and following. [16] Ibid. at para. 93. [17] Peoples Trust, supra note 12; Caplan, supra note 1 at para 45 and following. [18] Caplan, supra note 1 at par. 163. [19] Ibid., at para. 93. [20] Ibid., at para. 99. [21] Ibid., at para. 166. [22] Ibid. at para. 171. [23] Merrifield v. Canada (Attorney General), 2019 ONCA 205. By Fauzan SiddiquiBlog, LitigationFebruary 3, 2021February 12, 2024
Quelling the “Magna Carta Lawful Rebellion”: Part Two . . . MCLR gurus harm people. [. . . .]. These gurus teach illusions that will predictably fail. They promise much, but their clientele gets less than nothing.[1] In spite of a recent decision of the Alberta court which should have persuaded her otherwise,[2] “Jacquie Phoenix”, whose last name is really Robinson, continues shamelessly to employ pseudo law. In August of 2020, the Alberta court released a decision about Ms. Robinson’s meddling in a high-conflict child custody dispute.[3] She had claimed to act for the mother, maintaining that she had the latter’s power of attorney. To justify her actions, Ms. Robinson relied on the pseudo-law concept of what the court described as the “Magna Carta Lawful Rebellion” (“MCLR”), a muddled mishmash of misbegotten mumble jumble that does not withstand the application of an iota of basic common sense. In its August decision, the court took apart the notion of the MCLR,[4] pointing out that the act of employing pseudo-law strategies is abusive and causes harm. At that time, the court ordered that, among other things, Ms. Robinson could not act for the mother in the custody dispute and invited her to make submissions on why she should not be forbidden in any other matter before the Alberta courts. Was Ms. Robinson contrite? Did she learn a lesson? The answer is most emphatically, “No”. A court decision which was released just before the end of 2020[5] sets out what subsequently happened: MHVB, the mother, did not appear for a hearing of criminal charges for abduction and a warrant was issued for her arrest; AVI, the father, successfully applied to the court to vary parenting arrangements; in his application, he stated that he and his lawyer had been “threatened by MHVB and Ms. Robinson, who claim that they are above the law”;[6] Ms. Robinson made public statements, including video rebuttals which rejected the court’s authority, proclaiming that the court’s judgment “had no more effect on (her) than a statement by the CEO of McDonalds”;[7] and Ms. Robinson sent “notices” and other documents to court staff and had a hand in other materials sent to the Associate Chief Justice which were similar to those she had already sent, erroneously relying on “Article 61 of Magna Carta 1215”,[8] declaring that commonwealth governments had been dissolved, stating that the Alberta court had been “Usurped by a Treasonous Regime”,[9] that the Nazis had laid the foundation of the European Union as part of some nefarious plan,[10] that a succession of UK prime ministers had been engaged in high treason and sedition, and that the last “constitutionally correct Coronation Oath was taken by the traitor James II in 1685”.[11] In response to the foregoing, the court made various orders designed to prevent Ms. Robinson from continuing to employ pseudo-legal tactics. It also warned Ms. Robinson that she could face contempt of court and concluded as follows: These schemes are nothing more than cons, led by people who rely and feed on the oft-quoted statement attributed to P.T. Barnum (of circus fame): a sucker is born every minute. That is true now as it was when spoken more than 150 years ago. The Courts are not suckers. And the courts will not be intimidated. [12] The use of pseudo law is abusive,[13] may constitute contempt of court, [14] and “gurus” like Ms. Robinson who propagate it are charlatans. They provide no small disservice to the public, including people who genuinely need a lawyer. Those who need legal assistance should stay far away from the likes of Ms. Robinson and seek the aid of a lawyer or a reputable organization which can provide legitimate, timely and practical help and guidance. [1] AVI v. MHVB, 2020 ABQB 790 [hereinafter AVI #2] at para.53. [2] AVI v. MHVB, 2020 ABQB 489 [hereinafter AVI #1]. An earlier blog about the decision can be found here. [3] Ibid. [4] Particularly at Ibid., para. 72 et seq. [5] AVI #2, supra note 1. [6] Ibid. at para 24. [7] Ibid. at para. 26. [8] Ibid. at para. 28. [9] Ibid. [10] Ibid. at para. 33. [11] Ibid. at paras 35. [12]Ibid. at para 54. [13] AVI #1, supra note 2 at para. 72 et seq. [14] AVI #2, supra note 1note at para. 52. By Fauzan SiddiquiBlog, LitigationJanuary 5, 2021January 5, 2021
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
Third Party Litigation Funding: Where is it in Canada? Third-party litigation financing presently plays a role in class actions and personal injury cases in Canada. After the event (ATE) insurance is increasingly common for plaintiffs to obtain in pursuing a personal injury case. Such insurance covers the expense that unsuccessful party has to pay towards the successful party’s legal fees. This is invaluable for access to justice for personal injury complainants who may be at risk of losing their homes if they are unsuccessful and ordered to pay the successful party’s legal fees. Such funding also seems appropriate in the class action setting where individually the plaintiffs would not see legal action as a viable means to remedying their claims. Used properly such third party financing and insurance lessens the consequences that an individual plaintiff may face if they decide to pursue their rights in the legal arena, thereby supporting access to justice. This type of funding does not affect the court’s ability to act in its rightful role in weeding out trivial or unmeritorious claims. Costs consequences are appropriate considerations in settlement negotiations, but they should not go so far as to prevent the individual claimant from considering litigating their claims. Where third party litigation financing finds merit in permitting individuals to participate in litigation when otherwise the financial risks of losing would prevent them, what is the rationale for such funding in commercial litigation? Does the policy rationale of promoting access to justice apply in the commercial realm? Outside funding can play a role in two ways for commercial litigation matters: it can fund the legal dispute itself, and it can insure against the litigation risk exposure. One interesting consideration is the relationship between third party litigation funding, litigation risk, and contingency fee arrangements. Contingency fee arrangements are common in personal injury, but much less so in commercial litigation. But, if third party funding develops in the commercial litigation field, will contingency fee arrangements begin to increase? While presently not widely used, contingency fees, unavailable in criminal, quasi-criminal and family law matters, are not prohibited in commercial disputes. The concerns regarding third party litigation financing can be mitigated through the use of competent and ethical lawyering. A commitment to solicitor-client privilege, appreciation for the merits of settlement, and discussing the risks of litigation beyond the financial consequences, such as the time demands, effect on reputation, and precedential effects of judgments. Further, the courts have developed guidelines for external funding arrangements in the class action context, where judicial approval is required, that can be used to shape arrangements that keep the focus of the litigation on dispute resolution and not profit. Moving forward, where third party funding arrangements can be agreed to which keep the financier a non-party to the dispute, there will likely be an increasing role for them in commercial litigation. “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, LitigationNovember 29, 2017June 17, 2020
