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
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:
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)
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
Please find attached a Notice to the Legal Profession regarding the expansion of the Civil Claims Online service on March 23, 2020.
The online service expansion will assist lawyers and litigants with accessing justice services during these unprecedented times when court counter services are required to be reduced to protect the health and safety of the public and staff. While filings will be accepted through the online system, until normal operations resume, only those matters that are scheduled by the judiciary for an urgent hearing will proceed. Court services will be available for urgent hearings and service will be limited for non-urgent matters.
As set out in the Notice, the Civil Claims Online service should not be used to file documents in a proceeding that has been declared by the judiciary to require an urgent hearing pursuant to the Superior Court of Justice's Notice to the Profession, the Media and the Public dated March 15, 2020 or pursuant to the Commercial List Users Committee Notice dated March 16, 2020.
Sheila Bristo, Court Services Division, Ministry of the Attorney General
Here is today's update from the Courthouse conference call:
Remote In Custody Appearances Protocol
The new remote in custody protocol is being fully applied as yesterday was first day that every accused person in custody appearing remotely. While being successful on its first day there are some technological issues that arise, including audio problems. At times persons calling in had difficulty hearing and being heard. Efforts are being made to improve the the functionality of the equipment used in remote hearings, including adjusting mode of calling in and conferencing in.
Other technical issues include lack of or inconsistent internet and cell service not only in the courthouse but also for some remote participants. This issue is being considered and will be addressed.
For efficiency of accommodating private counsel in the hearings the suggestion is for email communication with the court clerk. Counsel is to email and/or be emailed where client name and counsel contact info are received by the court clerk and counsel can then be advised of when and how to call in. Clearly it is a more efficient use of resources for counsel to call when the court is ready for them, rather than to have counsel call in at random times. Issues are anticipated with counsel speaking to clients remotely and hopefully such communication between counsel and client can be accomplished prior to the court hearing their particular matter.
There is an effort to make the process entirely paperless, and more efficient by not requiring accused to sign bail documents.
With respect to contested show cause hearings they can be accommodated remotely and will proceed when all are ready.
In Custody Trial Dates
In custody trial dates can be set provided that they are set beyond the 10 week protocol dates and when parties are ready to set those dates.
Electronic Bail Variations
The Local Administrative judge has reviewed documents supporting electronic bail variations and will assigned a Justice to work in conjunction with courthouse staff with the goal of implementing an electronic process for obtaining bail variations.
Norman Panzica , York Director, Criminal Lawyers Association
From: JUS-G-MAG-Policy-Correspondence (MAG) [mailto:MAG.PolicyDivision@ontario.ca]
We wanted to let you know that the Lieutenant Governor in Council has issued an order under the Emergency Management and Civil Protection Act that changes how documents are served on the Crown and related entities.
Effective immediately, documents to be served on the Crown and related entities in any civil (non-criminal) proceeding, administrative proceeding or intended proceeding must be served by email, in accordance with the instructions set out on the following website: https://www.attorneygeneral.jus.gov.on.ca/english/courts/guides/Guide_to_Serving_Documents_EN.html#_Toc441141484
This applies to documents served on
The Order in Council will also be posted on this website: https://www.ontario.ca/search/orders-in-council and on e-Laws, as a regulation under the Emergency Management and Civil Protection Act at: https://www.ontario.ca/laws/statute/90e09?search=emergency+management.
Further inquiry can be directed to the following addresses, quoting the reference # attached to your response/ in the subject line:
E-mail: attorneygeneral@ontario.ca
Address: Ministry of the Attorney General, McMurtry-Scott Building, 720 Bay Street, 11th Floor, Toronto, ON M7A 2S9
There are two Local Administrative Judges assisting this week one remotely and one in person.
Over the weekend a blanket order was made limiting all in custody appearances from Central East Corrections to remote appearances only. For Newmarket matters all persons in custody from Central East Corrections will appear remotely. Other secure custody sites may follow same rule. Judges may order that an accused be physically brought to court in particular cases if appropriate. There is a draft in custody appearance procedure being reviewed and vetted which sets out times, contact phone numbers, etc for conducting remote appearances..The goal is to release the protocol to the CLA shortly to ensure the private bar can be fully involved and integrated into this new process. Duty counsel and crown ran wash court on the weekend entirely remotely with no issues. Duty counsel have 2 lawyers present remotely and 2 per diem on standby for remote assistance if needed. Challenges exist concerning contested bail hearings remotely. While the past weekend Wash court involved entirely consent releases, there is a need to appropriately conduct contested show cause hearings remotely, including special bails. Efforts are underway to address the mechanics of same and hopefully will be addressed shortly. This is the first day of entirely remote appearances. This is a constant work in progress.
Effective as of end of day on Friday, March 20, 2020, LAO has stopped all in-person staff and per diem services in the courthouses across the province until further notice. They will be using their normal system of staff and per diems for all services done remotely. Certificates will still be available in the normal course. Also, LAO recently announced that it will be temporarily re-instating the bail block to the private bar with certificates in order to respond to demand as a result of COVID-19. Details to follow. Panel lawyers should know that they can do bails (on certificates) and be paid per the former rules.
LAO also announced that, in order to ensure that those in remand are getting fair treatment and timely access to justice, LAO will no longer assess merit prior to granting bail review authorizations.
Further, LAO is exploring billing and administrative changes to support the private bar and their legally aided clients during this crisis period.
FOLA will endeavour to keep you updated and you are also encouraged to visit their website frequently for more information.
And finally, attached is a regional contact list for LAO staff. This list may be published and/or distributed to permit members of the private bar to reach LAO staff to facilitate bail matters on Monday. This list should not be considered the final word on the topic. It will be updated on a periodic basis. Updated lists will be distributed as they become available.
March 20, 2020
Good morning:
I am writing on behalf of Chief Justice Maisonneuve.
This communication is to advise of changes that the Ontario Court of Justice (OCJ) is immediately implementing to its ongoing critical operations as a result of COVID-19.
All family trials, criminal trials and preliminary inquiries between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise. This applies to both in-custody and out-of-custody accused.
Although criminal and family courts remain open for urgent matters, consistent with public health advice, all steps are being taken to reduce in person appearances and to implement social distancing for matters that must proceed. Unless an urgent criminal or family court appearance is required in the Ontario Court of Justice between Friday March 20, 2020 and Friday May 29, 2020 the court is urging individuals not to attend court.
The Ministry of the Attorney General is working with the Court and other key justice stakeholders to implement significant audio and video technology capacity to further minimize in person contact for urgent matters that are proceeding.
The attached public notice provides more important on the matters that will continue to proceed in the OCJ. This notice has been posted to the court’s website (https://www.ontariocourts.ca/ocj/). We invite you to share it with members of your organization and with other organizations as broadly as you wish.
James Schneider for OCJ Communications Officer
York Region Law Association 50 Eagle St W, 3rd Floor Newmarket ON L3Y 6B1 905-895-2018 / 1-866-221-8864