Sent on behalf of the Federation of Ontario Law Associations (FOLA)

Attached is an Order in Council dated April 22 permitting that wills and POA’s be signed virtually and in counterpart.  It is intended that the order will remain in place until the end of the declared state of emergency.  You can learn more and access the link to the legislation here.

Katie W. Robinette, Executive Director, FOLA.ca

Need answers to COVID-19 issues regarding the practice of law?  CLICK HERE.

Here is my Newmarket OCJ update for April 23, 2020 

In Custody Remand And Scheduling Protocol  

The OCJ in Newmarket has endeavoured to attend to bail hearings in a timely fashion. The primary challenge during the public health crisis has been with the limited video and audio capacity at the Central East Detention Centre and associated scheduling issues.

I am being made aware that a significant issues is and continues to arise from counsel setting multi-hour hearings only to later ask for an adjournment for one reason or another. Each time slot wasted takes a potential timely release away from another detainee  

Counsel are again asked to be vigilant in ensuring a scheduled bail hearing is truly ready to go, including that interpreters have been ordered, that sureties are available,  that discussions on a consent release have been fully exhausted and resolution,where appropriate, is canvassed. 

There is universal appreciation and thanks for the clear efforts by most counsel to adapt to and support the unique situation currently faced in the criminal justice system.  For clarity I have re attached the scheduling protocol released by the Regional Senior Justice. 

Electronic Bail Variations Now Available 

A protocol for obtaining bail variations electronically has now been approved and available for Newmarket OCJ matters.  I have attached the variation form applicable to adult matters, adult with PARs, and youth matters, as well as the surety affidavit form.  These forms can also be found on the yorklaw.ca website under Court Info/Forms Criminal.

The procedure to obtain a bail variation electronically is as follows:

1.  Defence counsel complete the following forms electronically and submit to the assigned Crown. If there is no assigned Crown it will be sent to Sean Doyle at Sean.Doyle@ontario.ca and David Moull at David.Moull@ontario.ca. 

• Electronically signed Affidavit of Surety for the Purpose of a Consent Bail Variation
• Electronically signed Consent Bail Variation Form
• Copy of the current Release Order

2. Crown will review the variation and sign electronically. 

3. Crown will send the following documents to the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

• Electronically signed Affidavit of Surety for the Purpose of a Consent Bail Variation
• Electronically signed Consent Bail Variation Form
• Copy of the current Release Order

4. Newmarket Criminal Administration Office will log each variation and send the attachments to the OCJ Judicial Assistants via OCJNewmarketJudicialReview@ontario.ca. 

5. A Judicial Assistant will send the documents to the assigned judge for consideration.

6. If denied, the Judicial Official will advise the Judicial Assistant who will notify Crown and Defence Counsel. The Judicial Assistant will then notify the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

7. If approved, the Judicial Assistant will insert the Judicial Official’s electronic signature and provide electronic copy to Crown and Defence counsel as well as the Newmarket Criminal Administration Office via yorkcrim@ontario.ca.

8. Newmarket Criminal Administration Office will print the documents and attach to the information and save a copy in the P: drive P:COURT SERVICESE-OrdersCENTRAL EAST SCANNED RELEASE ORDERS and send to the bail distribution list. 

For the purpose of consent bail variations during the COVID-19 pandemic, electronic signatures will be used. Electronic signatures is defined as the identified stakeholder typing in their name into the document.  

Law Society Of Ontario 

Per the Law Society of Ontario: Virtual Commissioning 

 As a result of COVID-19, until further notice:

  (i)  The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.o Rather, alternative means of commissioning such as commissioning via video conference will be permitted.

  (ii)  If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.

 (iii)  Managing the Risk of Virtual Commissioning:
If a lawyer or paralegal chooses to use virtual commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:

• Fraud
• Identity theft
• Undue influence
• Duress
• Capacity
• Client left without copies of the documents executed remotely
• Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.

To manage some of the risks:

• Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.*
• Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.
• Determine how to provide the client with copies of the document executed remotely.
• Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
• Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.

Sincerely, Norman Panzica, York Director, Criminal Lawyers Association

Justice Adapting - The Ontario Courts

Apr 23, 2020 11:00 AM

Eastern Time (US and Canada)

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Here is my Newmarket OCJ Update for April 22, 2020 

Teleconference JPT's available for ALL Criminal Matters

Local Administrative Justice Ghosh has advised that Counsel may set teleconference judicial pre-trials in Newmarket for any criminal matter, including:

1. Any “non-urgent” out-of-custody matter,
   
2. “Second look” judicial pre-trials for matters previously set for trial or preliminary hearing, or for matters that have been previously pre-tried before the public health crisis – this may proceed before a new judge, and
   
3. Case conferences for bail hearings (which may include resolution discussions).
   

Ideally a recent Crown pre-trial will have been conducted before a judicial pre-trial is pursued. To arrange a judicial pre-trial, counsel can email the trial coordinator at coordinator at:

Newmarket.OCJ.Criminal.TrialCoordinator@ontario.ca  

Counsel are advised to contact the assigned crown, or if no one assigned, then the resolution crown or David Moull prior to scheduling the available judicial pretrials.

Surety Approvals E -submission/Unsworn

I sent out previously suggested protocol being adopted by several Newmarket jurists with respect to the receipt of unsworn surety materials which has the approval of the provincial crowns. I can now confirm that the federal crowns as well, concur with this process. 

In addition,  some matters are currently being addressed without the delivery of any surety forms, sworn or unsworn, often for matters conducted by duty counsel.  In those circumstances, proposed sureties simply provide their info by viva voce testimony on the record.  In either scenario the signatures of any surety is not being required in surety forms.

I reproduce the suggested protocol below for ease of reference:

1. Defence counsel completes with the proposed surety over the phone the following unsworn/unsigned documents: surety information / identification form; and the surety “affidavit” (not to be sworn)
   
2. These and other relevant bail proposal documents (deeds, banking records, etc.) are electronically transmitted to the Bail Vetting Crown and then to the court prior to the hearing; 
   
3. During the hearing itself (consent or contested), the proposed surety adopts the contents of the unsigned/unsworn documents under oath or affirmation (as an alternative to sworn/signed documentation).
   
4. The hearing is determined.
   

In short the question of whether a sworn surety affidavit is required to conduct a show cause hearing comes down to the position of the particular jurist.  This protocol dispensing with surety signatures is a suggestion for jurists supported by both the provincial and federal crowns, as well as the Local Administrative Justice.  However it does not bind anyone.

I will update if a universal position on the surety signature requirement is adopted. 

Sincerely, Norman Panzica, York Director, Criminal Lawyers Association 

Below please find a link to a Notice from the Chief Justice of the Ontario Superior Court of Justice that states in part that the Superior Court of Justice will not recommence criminal or civil jury selection or jury trials until September 2020 at the earliest.

https://www.ontariocourts.ca/scj/notice-suspension-criminal-and-civil-jury-trials/

Attached is an email that was sent out by Legal Aid Ontario outlining information which may assist lawyers seeking release of clients either through the bail process or by the early release of a sentenced inmate. 

The documents referred to in the email are attached and can also be found on the FOLA website on our Legal Aid page and on our Criminal Law page. 

I would appreciate if you would forward this information on to your members who practice criminal law. 

Thank you for your assistance, 

Terry Brandon

FOLA Legal Aid Chair

Here is my Newmarket OCJ update for April 20, 2020.

In Custody Access to Counsel 

In order to assist with and facilitate communication with their counsel, accused at Central East Corrections are receiving PIN cards.  The cards have 20 dollars of available talk time and can be used by inmates from the POD phones at the facility.   An additional  20 dollars of talk time will be provided to those at Central East Corrections on May 1st.

Surety Approvals  E-submission/Unsworn

There is an ongoing effort to both limit contact with persons and paperwork, and as well, to ensure timely receipt and distribution of bail materials. While there is no certainty the judicial officer will agree, the Newmarket Head Provincial Crown has agreed to the following procedure concerning the delivery of proposed surety materials

1. Defence counsel completes with the proposed surety over the phone the following unsworn/unsigned documents: surety information / identification form; and the surety “affidavit” (not to be sworn)
2. These and other relevant bail proposal documents (deeds, banking records, etc.) are electronically transmitted to the Bail Vetting Crown and then to the court prior to the hearing;
3. During the hearing itself (consent or contested), the proposed surety adopts the contents of the unsigned/unsworn documents under oath or affirmation (as an alternative to sworn/signed documentation).
4. The hearing is determined.

Bail Vettors There will continue to be two assistant crown attorneys assigned as bail vettors.  For this week, they are: 

LeeAnne McCallum:  

LeeAnne.mccallum@ontario.ca

Elissa Kuipers: 

Elissa.Kulpers@ontario.ca

Resolution Crown 

This week's resolution crown is Sham Kumaresan.  She can be reached at:

Shambavi.Kumaresan@ontario.ca

Sincerely,

Norman Panzica, York Director, Criminal Lawyers Association

NOTICE TO THE PROFESSION – CENTRAL EAST REGION – CIVIL - Amended April 14, 2020

NOTICE TO THE PROFESSION – CENTRAL EAST REGION – FAMILY -  Amended April 17, 2020

Dear Real Estate Representatives, Presidents and Library Staff,  

Following our update last week, we have received further information to be shared with the real estate lawyers in your association.  We have been diligently working with other stakeholders to seek clarification and effect positive changes for the benefit of real estate lawyers and their clients. We are very happy to be able to confirm some more progress in this regard.  A link to this update is available on the FOLA website here. 

On behalf of FOLA we wish to express our gratitude to the Treasurer and senior staff at the LSO who have been actively engaged on many issues important to the public and to the bar during these challenging times.  It is greatly appreciated. 

Banking Updates

 More great news! We have been advised that MCAP and RMG have rescinded their restriction on lawyers acting on refinance transactions. 

A notice sent out last week confirms that effective immediately, MCAP and RMG refinances may be closed through FCT, FNF or individual solicitors. 

Electronic Funds Transfers

Most lenders still require certified cheques or bank drafts for mortgage discharge purposes, and with banks closing branches and reducing hours, discharging mortgages is becoming more and more challenging.  We continue to work with other stakeholders in an effort to find alternate solutions. 

We have been advised that some lenders are offering to debit the lawyer’s trust account directly by EFT to withdraw mortgage discharge funds. It is our understanding that this is not permitted under Law Society By-Law 9. The only external party authorized to debit a lawyer’s trust account is Teranet, and only from a special trust account set up under section 16 of By-Law 9.  A lawyer can electronically transfer funds to a lender, provided that the lawyer complies with the By-Law 9 requirements for such transfers.  By-Law 9 is available on the Law Society website here. 

We have also been asked whether third party EFT platforms for transferring closing funds have been approved by the Law Society, and as far as we know, the Law Society has not approved any. The latest statement from the Law Society on such platforms is here. 

Planning Act notice provisions suspended

In response to questions about whether or not the Emergency Order freezing limitation periods applies to the notice provisions under the Planning Act, the government enacted Ontario Regulation 149/20 last week to clarify. O.Reg 149/20 suspends certain notice periods under the Planning Act until the COVID-19 emergency is terminated or disallowed. The Regulation is available here. 

LRO Updates 

Further letters from the Director of Titles have been received. 

A letter from the Director of Titles relating to registered mail for Land Titles Applications is available here.  

A letter from the Director of Titles relating to Cautions is available here. 

LDD Remote Signing Platform 

As we previously advised, Lawyer Done Deal has launched a Remote Signing Platform which is available to all lawyers free of charge.  It allows lawyers to post documents to clients, host virtual closing meetings and view client signing activity.  More details about the platform can be found here.   A short video regarding the new platform is now available on the OBA website here. 

Stay up to date with FOLA’s real estate information at https://fola.ca/real-estate-law.  

Meredith MacLennan and Eldon Horner

FOLA Real Estate Co-Chairs