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 

Good afternoon: 

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

Law Society CPD

 

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.

Banking Issues

 

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: 

• Most banks are not accepting scanned documents for mortgage closings – and mortgage instructions require lawyers to be in the physical presence of borrowers, so even if we meet remotely, we need to be physically in the same room to sign the documents.
• Lenders are not allowing lawyers to wire mortgage discharge funds, even though many bank branches are closed and those that are open are working on reduced hours.
• Some lenders are now requiring all refinances to go through FCT or FNF, meaning borrowers will not have any legal representation.

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.

Title Insurance

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. 

DRA

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

The court is rapidly moving to a fully remote process.  Most participants including judges and counsel will appear remotely and only the persons anticipated in court being will be a clerk and a court reporter.  The virtual court structure is being implemented incredibly rapidly based on the current circumstances, and issues that arise are being addressed quickly.  Courts worked very efficiently yesterday as new protocols are being followed. 

With respect to remote appearances of accused persons from Central East Corrections, there is a movement to have most appearances by audio, and limit video appearances to contested bail hearings and guilty pleas.  Efforts are being made to make a more phone lines available to handle the increase in audio appearances with Central East Corrections and some video suites at Central East Corrections will be used for audio appearances. 

Patience is requested from all as charges are being implemented rapidly and issues are anticipated.   Staff are being appropriately trained to adjust to the new protocols. 

Video matters are to be booked 24 hrs in advance through the office of the trial coordinator and their office remains the central point of contact.  Counsel and others are asked not to contact Central East Corrections for any scheduling or desired changes as all such matters must go through the trial coordinator. 

Please log in to the Members Only section to view the call in contact information for audio appearances for all new arrests and in custody matters. If you do not remember your password it is very easy to reset it.

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

     

March 25, 2020

In our continuing commitment to keep you up to date, we have been communicating regularly with all interested parties.  Please circulate this information to the real estate lawyers in your area.

Teraview^® and Land Registry Operations

You can expect some changes in the operation of the Land Registry Offices.  We urge you to be patient, to explain to your clients the uncertainties and delays which may occur and to be prepared with tools like the Lawyer’s Delayed Closing Escrow Agreement prepared by the Working Group on Lawyers and Real Estate, which can be found here. 

This is the unofficial information we have received:

• Teraview^® and ONLand are still up and running and will continue to stay up during all normal hours! 

• All physical Land Registry Offices have commenced reduced hours 9:30 to 12:30. If you need to do anything in paper you should verify the status of your local LRO.
• Some physical LROs (mostly in Eastern Ontario) are still closing ad hoc. For the moment there is no work-around, but efforts are ongoing. The situation is unpredictable at best so lawyers and clients should be prepared to adapt. The list of unanticipated LRO closings is growing, not shrinking. Unfortunately, there is no guarantee that non-convert deals will be registered.
• For the time being it seems the volume of registrations in Teraview^® are up, but certification rates are down to a crawl. Starting tomorrow, March 26^th we expect that the LRO’s will move to much more stringent social distancing so even lower certification rates will likely result.
  

Law Society Program

The Law Society is holding a free audio-only program on Friday, March 27 2020 from 12pm-2pm entitled Your Real Estate Practice and the COVID-19 Pandemic: What You Need to Know Right Now.  You can register for the program here.  (ADDITIONAL NOTE - they can only accommodate so many at a time, but there are multiple replays-Mar 27, Apr 1,2,3, Betty) 

 If and when we receive further information of interest to the real estate bar, we will pass it along.

From the Criminal Lawyers Association:

Here is my update from today's conference call.

As the remote appearance court process is operating, challenges are arising.  Audio problems, attempting to follow schedules of appearances, limitations of resources at Central East Correctional Facility and timely incorporating the presence of requisite participants present challenges.  Regular adjustments and changes are occurring in an effort to address the issues and make the process more efficient and functional. 

Private counsel can arrange to participate and appear remotely in any hearings and to notify and schedule in custody guilty plea matters by emailing the OCJ trial coordinator office at the following email address:

Newmarket.OCJ.Criminal.TrialCoordinator@ontario.ca

All.communication by counsel is to go through this email address.  If counsel wish to schedule a remote guilty plea they are advised to notify the court via this email address 24 hours prior to the plea so that arrangements can be made with all, including with Central East Corrections. 

Currently there will be no daily traversals between courtrooms as there are too many moving parts and resources are significantly limited.  Traversal for example,  in the case of a time served guilty plea, are to be done by remand to following day. Again, notifications to the above email address is required.

There is desire to implement a fully remote court process and to reduce staff from the courthouse to the greatest extent possible.  This is a Province wide effort and is being refined and adjusted constantly. 

Sincerely, Norman Panzica York Director, Criminal Lawyers Association