Dear Law Association Presidents and members,
FOLA continues to engage, as a stakeholder, along with others, to negotiate and advocate on behalf of the LAO practising lawyer.
Below is the newest successful advancement of expanded LAO services to be engaged during COVID-19.
The email from Marcus Pratt, as forwarded herewith, is self explanatory but should you have questions or additional commentary, please, reach out to me: terrylbrandon@sympatic.ca.
These materials are also located on our website along with regular updated COVID -19 practice information and can be found at : https://fola.ca/legal-aid
Wishing you stay well, Terry L. Brandon, FOLA LAO Chair
Subject: Emergency Certificate Coverage for Temporary Absence Passes
Good afternoon:
Please feel free to share this information with your members.
As part of LAO’s continuing response to COVID-19, lawyers will be able to apply for legal aid coverage on behalf of in‑custody clients requesting temporary absence permits.
A new application form will be available on our website by Friday, April 3, 2020.
This follows the Ontario government’s announcement that it would expand the use of temporary absence permits by allowing authorized inmates to be absent from an institution unescorted for a period of 72 hours or longer.
Lawyers may immediately start work related to obtaining TAPs on your clients’ behalf, but you must submit an application, once available, to receive coverage.
How it will work
After downloading and filling in the application form, email it to the address provided.
We will process it without legal and financial testing, or merit consideration.
Each application requires that the lawyer attest to the following conditions to obtain coverage:
We will issue a legal aid certificate in advance. Signed consent and declaration forms may be submitted after May 29, 2020, where required.
See https://www.legalaid.on.ca/in-briefs/legal-aid-ontario-to-provide-coverage-for-temporary-absence-permit-tap-requests/
Take care and be safe, Marcus
Please find below link to our April 2020 Newsletter with all the important links to information your members need, tips and resources for lawyers during the epidemic, news about our Awards (note – the deadline has been extended!), and more!
Here’s the link: https://bit.ly/3dJC1QQ
It’s also available on our website here: https://fola.ca/fola-newsletters
And attached is the latest Response Update from the SCJ to association members’ questions.
Katie W. Robinette, Executive Director, FOLA.ca, 647-280-9340
Need answers to COVID-19 issues regarding the practice of law? CLICK HERE.
Here is my Newmarket OCJ court update for March 31, 2020.
In Custody Matters
There continue to be some issues in effectively addressing in custody Central East matters. As scheduling of remote in custody appearances is done region wide, accurate time assessments are essential and need to be provided the day before to the trial coordinator in order to efficiently and effectively schedule court lists. It may be preferable to separate in custody appearances by court based on substantive appearances, such as bail matters, versus simple remands.
There is an issue arising from clogging in custody lists with unnecessary appearances, as this takes valuable time from addressing substantive in custody matters. Counsel are asked to remand in custody clients as long a period of time within their objectives as appropriate. In addition, the former practice of short remands to ensure an accused is not moved between institutions is no longer necessary as in custody accused will not be relocated if they adjourned for a longer period of time.
Counsel are asked to advise if there are difficulties accessing clients at Central East Corrections using access defense. There have been reports of in custody accused waiting days to speak with their counsel.
Counsel Entering the Courthouse
Concerning courthouse access by counsel, while counsel may be permitted to enter the building, they are not to enter the courtroom. Counsel who attempt to enter the courthouse can no longer use pass cards but instead must be screened by security.
Access to the courthouse by counsel solely for purpose of accessing the law library is an issue that is under review and will be canvassed further today. Denying physical access at this time prevents members from using electronic research materials via LexisNexis, as this electronic research access is only available to members while physically in the law library. Access by counsel for the sole purpose of attending the law library is currently being reviewed and a formal position is anticipated shortly.
New Surety Approval Protocol
There is a new draft protocol for surety approval given the current environment. The protocol is close to receiving approval and is anticipated to be implemented shortly.
The Courtroom Call In Numbers list has been updated. See the Members Only page for the new numbers
Norman Panzica, York Director, Criminal Lawyers Association
Please find attached a letter from the FOLA Real Estate Committee relative to MCAP’s recent decision to remove lawyers from refinancing matters. The link to the MCAP notice can be found at
https://bit.ly/33VA6nR
Merredith MacLennan and Eldon Horner, FOLA Real Estate Co-Chairs
The fully remote court process is being implemented today with adjustments to be made as issues arise. The new directive restricting public access to the courts is in place, limiting physical courtroom presence to jurists, clerks and court reporters, applying appropriate social distancing. All other participants are to appear remotely and for most by audio.
Sureties who attend the courthouse in person will be directed to a location in the courthouse where they can phone in to the courtroom. They will be asked to send a image of their identification to private counsel or duty counsel as applicable, for vetting purposes. If sureties are required to testify then same is done by audio
Courtroom call in numbers may change for tomorrow. In that event new call in numbers will be provided later today.
There have been and will be issues with special or longer contested bail hearings. Attempts are being made to make the hearing more efficient, relying more on paper than witnesses and to maximize efficiency through scheduling with Central East Corrections. These are ongoing efforts and a continuous work in progress. Currently longer contested matters are normally being set for the afternoon.
Direction is needed concerning the screening process exercised by front door security to those who wish to enter the building. There is a need to clarify questions being asked by security of individuals prior to their entry concerning illness and reason for entry. For those individuals claiming "urgency ", that particular issue can only be addressed by a judicial officer.
Media are entitled to access to court hearings. However such access is limited to audio and they can call in.
I am discussing the implementation of a process for electronic bail variations later this morning with stakeholders and hope to provide an update later this week.
Sincerely Norman Panzica York Director, Criminal Lawyers Association
March 28, 2020
I am writing on behalf of Chief Justice Maisonneuve.
This communication is to advise that effective March 28, 2020 the Ontario Court of Justice is limiting access to courthouses. People should not attend Ontario Court of Justice courthouses unless they fall in one of the exceptions outlined in the attached notice.
This decision is part of the collective efforts to curb the spread of the COVID-19 virus and to protect the health and safety of court users, justice system participants and members of the public.
The attached notices provide more details about remote attendance by counsel and/or litigants (including in-custody accused), how to deal with requests for access to court proceedings and how to file court documents for urgent matters by email.
Also attached is a document containing contact information for Trial Coordinator’s Offices (link removed). Counsel who receive requests from persons with an interest in a particular proceeding and are asking to attend or participate in the proceeding remotely should contact the appropriate Trial Coordinator’s Office. This list of Trial Coordinator’s Offices email addresses is not for public distribution or posting. Access the list on the Members Only page.
Thank you, Matt McGavock for OCJ Communications Officer
The attached letter from Chief Justice Morawetz is hot off the presses: “the scope of events that may be heard remotely by the Superior Court of Justice will expand, effective April 6, 2020”.
There were issues yesterday morning with connecting by both audio and video causing a backlog and delays. The connection issues were sorted out and matters proceeded relatively smoothly afterwards. Interpreters have been attending court in person but are able to call in. There are issues reaching contested bail matters currently given both the limited video and audio capabilities between the Court and Central East Corrections, and also the inability to traverse in-custody matters between courtrooms.
There has also been some issues getting the correct informations into the proper courtroom causing some confusion and delays. Efforts are being made to redesign and improve courtroom custody lists and ensure matters are remanded to the correct courtroom on future dates.
It is hoped and anticipated that the Newmarket courts will implement an entirely virtual court process starting Monday. Meetings are ongoing with all stakeholders including Central East Corrections. The office of the trial coordinator will be switching phone lines to prepare for the new remote system. As a result phone lines currently being used may change. Patience is requested given the tremendous pace of implementation of this new court protocol.
Contested bail matters are still conducted by video and scheduled 24 hours in advance. Sureties may be able to call in. Guilty pleas are also to be booked 24 hours in advance as those accused need to appear by video which is centrally scheduled with Central East Corrections.
Sincerely
Norman Panzica
York Director, Criminal Lawyers Association
Your FOLA Legal Aid Committee has been actively engaged in teleconferences and discussions directly with Legal Aid Ontario and other stakeholders and we are pleased to share the attached letter to the Bar from David Field, LAO President and CEO.
Our efforts will continue to support counsel and any suggestions or comments are welcome and can be sent to me terrylbrandon@sympatico.ca.
Terry Brandon, FOLA Legal Aid Chair
Our last update included a link to the Law Society free audio webcast on Friday, March 27 entitled “Your Real Estate Practice and the COVID-19 Pandemic: What You Need to Know Right Now”. We understand that the live program is now full. The Law Society is replaying the program on April 1, 2 and 3. See the LSO CPD calendar here for more details.
We have reached out to the Law Society for assistance and we understand that they are contacting the financial industry and federal and provincial politicians regarding the following concerns:
There is a global pandemic with health and safety protocols to be followed. Remaining inflexible, requiring people to put themselves at risk and denying borrowers legal counsel is unconscionable.
We strongly urge lawyers to think about the title insurers they are working with – is your preferred title insurer actively lobbying banks and government to remove lawyers from the real estate transaction? Are they marketing their ability to perform legal services that you ordinarily provide? If so, the premiums you send them are funding these lobbying and marketing efforts.
There are title insurance companies, like TitlePLUS and Stewart Title, who are actively working to keep lawyers involved in real estate transactions, especially during these unprecedented times.
Section 10 of the Document Registration Agreement (reproduced below) requires original documents to be provided within 2 business days of closing. You may want to consider amending this to either eliminate the need to send originals or extend the time frame.
10. This Agreement (or any counterpart hereof), and any of the closing documents hereinbefore contemplated, may be exchanged by telefax or similar system reproducing the original, provided that all such documents have been properly executed by the appropriate parties. The party transmitting any such document(s) shall also provide the original executed version(s) of same to the recipient within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not require such original copies.
Sending Closing Funds
Because many lawyers are now wiring purchase funds to the other lawyer whenever possible, a separate cheque is not being written to the mortgage lender for the discharge amount - the full balance is being delivered to the vendor’s lawyer with reliance on their undertaking to payout and discharge the mortgage.
The Law Society guidelines recommend a separate cheque payable to the lender for the discharge amount to protect against fraud - lawyers who receive the funds but don’t pass them along to the lender, and consequently never receive a discharge. You may be aware that there have been a few lawyers over the years who have gotten into some kind of trouble and who did this. It has been rare, but it has happened.
Given the current situation, there may be a greater risk of this happening if deals are not closing and people begin to feel desperate. Bills still need to be paid, and if there are fewer transactions closing, there may be a temptation to “borrow” the money sent for a discharge.
If you are sending the full balance due to the lawyer on closing, you may want to consider amending your closing procedure to request evidence that the funds have been forwarded to the lender.
Corporate Amalgamations and Amendments
We have been advised that the only ServiceOntario office accepting amalgamations or amendments for Ontario companies, which need to be filed in person at the counter, is the Bay Street office in Toronto.
Land Transfer Tax pre-payments
We have also been advised that the Ministry of Finance is also no longer accepting payment of Land Transfer Tax at the Oshawa office. Pre-payments of LTT were done when you didn’t want to include the consideration on the transfer but rather simply include a statement that LTT was pre-paid. For workarounds, you should contact the Ministry of Finance.
If and when we receive further information of interest to the real estate bar, we will pass it along.
Merredith MacLennan and Eldon Horner
FOLA Real Estate Co-Chairs
York Region Law Association 50 Eagle St W, 3rd Floor Newmarket ON L3Y 6B1 905-895-2018 / 1-866-221-8864