Knowledge Centre Archives - Page 3 of 9 -

By Slonee Malhotra 2015/12/11

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Your home is likely your biggest investment and it is important to protect it. Real estate lawyers often recommend that their clients purchase title insurance. Title insurance covers unknown risks or problems such as title fraud, damage to structures caused by by-law infractions, outstanding liens and title defects relating to the property. Such policies are designed to compensate for actual loss arising from defects in existence as at the date of the policy.

In a recent case before the Court of Appeal for Ontario, MacDonald v. Chicago Title Insurance Company of Canada [2015 ONCA 842], the MacDonalds purchased a home in Toronto in 2006 and at the same time, through their lawyer, they also purchased a title insurance policy with Chicago Title Insurance Company of Canada. In 2013, the MacDonalds discovered that the second floor of their home was falling apart. A load-bearing wall had been removed during renovations seven years ago and as a result, the second floor was unsafe to use. At this point, the City of Toronto got involved and issued a remediation order. It turned out that the previous owners of the property had conducted unapproved renovations and had removed the load bearing wall without obtaining the necessary building permits through the City.

The MacDonalds turned to their title insurer and made a claim for the cost of installing the temporary support for the second floor and the subsequent permanent repairs. Chicago Title denied coverage on the basis that the defect did not affect “ownership of the land” and therefore did not affect “title”. The MacDonalds then took their claim to the Ontario Superior Court of Justice and argued that the policy provided coverage under the clause:

“your title is unmarketable, which allows another person to refuse to perform a
contract to purchase, to lease, or to make a mortgage loan”.

At the trial level, the Judge found that title remained marketable, even though it was marketable for an amount that was less than what the MacDonalds had paid when they purchased the property. The MacDonalds appealed this decision.

The Court of Appeal was quick to point out that the fact that someone might be willing to purchase a dangerously defective building does not mean that it is “marketable” under the title insurance policy. The proper approach is to ask:

  1. Can a potential purchaser refuse to close an Agreement of Purchase and Sale on learning of the defect? and;
  2. Is coverage excluded under the exclusions or limitations of liability provisions of the title policy?

The Court of Appeal also confirmed several important principles applicable to the interpretation of title insurance policies:

  1. Coverage provisions are to be construed broadly and exclusion clauses are to be construed narrowly;
  2. The contract of insurance should be interpreted to promote a reasonable commercial result; and
  3. Ambiguities will be construed against the insurer, having regard to the reasonable expectations of the parties.

The MacDonalds were awarded $32,800.00 for their damages which also included a portion of their legal fees.

Not all title insurance policies are the same. When you are purchasing a home, it is important to review the wording of the title insurance policy and choose an insurer wisely. Our real estate lawyers will be able to assist you in determining which provider will best represent your needs. Contact SorbaraLaw for a consultation today.

Slonee Malhotra is a lawyer in the Real Estate and Corporate Commercial groups at Sorbara, Schumacher, and McCann LLP, one of the largest and most respected regional firms in Ontario.

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

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By Jacquelyn Johnson and Katy Hughes 2015/12/10

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Ontario’s Ministry of Government Services recently published a Report calling for the transformation of the province’s business legislation. A comprehensive review of Ontario’s corporate legislation is long overdue. Not only does it fail to accommodate technological advancements, many provisions also create barriers to successful business development and innovation. To remain effective and relevant, corporate legislation must be updated to account for the impact of today’s global economy and technological advancements. The recommendations in the Report are aimed at enhancing Ontario’s position as a place of choice for businesses and creating a corporate climate in which businesses can thrive. The Report focuses on the need to keep corporate law current, calling for a system of regular review and consultation. Ongoing maintenance of corporate legislation would encourage the flexibility that corporate law needs in order to account for today’s evolving economic environment.

The recommendations in the Report are extensive; however, the major focus is on the need to foster Ontario’s reputation as an attractive jurisdiction for businesses. The Report recommends that the Ontario Business Corporations Act be updated to include provisions with respect to increased clarity regarding the liability of corporate directors, improving the accessibility of rights and remedies to shareholders, and eliminating strict Canadian residency requirements for boards of directors. Allowing shareholders more autonomy in composing corporate boards of directors would significantly enhance Ontario’s position as a corporate destination. The current provisions of the Act are unattractive to foreign investors, pushing them to seek incorporation in jurisdictions such as Nova Scotia where such stringent requirements do not exist. Furthermore, the Report suggests provisions that contemplate the effect of technology on business in order to account for electronic meetings and communications, which are currently hindered by the need for formal consent and approval.

Updated legislation would promote Ontario’s position as a leading business jurisdiction, encourage innovation and attract investment. The changes called for in the Report would also support greater market certainty. Developing laws that encourage market confidence directly correlates with successful businesses and therefore a successful economy. Encouraging market confidence also stems from the recommendation calling for the repeal of the provincial Fraudulent Conveyances Act and Fraudulent Preferences Act, and the adoption of the federal Reviewable Transaction Act (RTA). The RTA contains clear rules that would reduce creditor uncertainty and help to increase access to credit for growing businesses. The Report also encourages the repeal of the Bulk Sales Act (BSA), as Ontario is the only province that has yet to do so. While the BSA was drafted with the intention of protecting trade creditors, there is now new legislation that does a better job of this, such as the Personal Property Security Act (PPSA) and the Bankruptcy and Insolvency Act (BIA). The BSA is a burden for businesses, as the necessary compliance documents that it requires can add to legal fees. The Report also outlines significant revisions with respect to the PPSA, which would encourage harmonization across Canada and further modernization of laws relating to secured lending. The Report recognizes the need for a synchronized approach to corporate law across Canada. While most other provinces have updated their corporate laws, Ontario remains an outlier in this respect.

Despite the call for change, business owners shouldn’t hold their breath. Changes to corporate law in Ontario have historically been subject to major delays. The new Ontario Not-for-Profit Corporations Act, for example, was enacted in 2010 and likely won’t come into effect until at least 2020 – more than ten years later! While the Report and its recommendations are a step in the right direction, legislative change on this scale will likely take a significant amount of time.

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Jacquelyn Johnson is a lawyer in the corporate-commercial group at SorbaraLaw, with experience in business law, commercial leasing, asset & share transactions, technology & intellectual property, corporate reorganizations, corporate finance & institutional lending. Katy Hughes is an articling student.

 

By Ronald Nightingale 2015/12/02

The Electronic Commerce Act, 2000 has been in effect for over a decade. While this Act applies to most commercial transaction documents, sub-section 34(1) of the Act sets out a number of exceptions. Until July 1, 2015 one of the exceptions included “… agreements of purchase and sale, that create or transfer interests in land and require registration to be effective against third parties”. This exclusion was contained in sub-section 34(1)4 of the Act, which sub-section was repealed in 2013, receiving Royal Assent effective as of July 1, 2015.

As long as agreements of purchase and sale, among other documents, remained outside the purview of the Act, it was at best uncertain as to whether an electronic agreement could meet the requirement of the Statute of Frauds for all such agreements to be in writing. This uncertainty resulted in a reluctance to rely on electronically created purchase agreements. While the repeal of this exception should encourage the use of electronically created purchase agreements, there no doubt remain numerous factors limiting immediate wide spread use.

The Act does not change any of the requirements with respect to the formation of contracts such as the necessity for execution and delivery; rather, it establishes a set of “functional equivalency rules” which, if complied with, gives an electronic document the same legal effect as an equivalent paper document. As with paper documents, it remains the responsibility of each party to satisfy themselves as to the reliability and authenticity of the electronic document. In this regard, section 3 of the Act provides that no party is required to accept electronic documents but rather must consent to their use. Such consent can, however, be implied from the parties’ conduct.

The functional equivalency rules of the Act are general, requiring documents to be accessible to the other party, capable of being retained for subsequent use, and reliable as to the integrity of the information contained in the electronic document. Whether any particular electronic document satisfies these requirements is for each party to determine, and ultimately, such reliability must be sufficient to satisfy rules of evidence in a Court proceeding. Also key to the effective use of electronic agreements is of course the ability to create electronic signatures which will allow parties to go beyond simply transmitting pdf copies of agreements. Satisfaction of the foregoing rules is going to be largely a function of the document management systems used, and its widespread use a function of the availability of such systems.

Ontario has had an electronic registration system for real property since prior to the enactment of the Electronic Commerce Act, 2000, and as such, the effect of this amendment is largely limited to real property purchase agreements. Nonetheless, it is no doubt well overdue and will ultimately serve to facilitate the timely creation of binding agreements and, maybe most importantly, eliminate the inevitable illegible agreement caused by numerous fax transmissions as offers of purchase and sale go through the negotiation process.

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Ronald Nightingale is a lawyer at SorbaraLaw and practises in the areas of financing, land development, and commercial leasing.

By Cynthia Davis 2015/11/27

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As one of the most respected professions, health care professionals take great pride in helping people during some of life’s most difficult times. However, we can’t forget that medical practitioners are humans and, like all humans, they can make mistakes. These mistakes don’t make them horrible people, but in matters of life and death, mistakes can be tragic.

As much as everyone involved would like to turn back time and avoid critical errors, when medical negligence occurs, often the only remedy is a lawsuit aimed at compensating the victims of these errors.

At SorbaraLaw, our litigation team is known for its expertise and skill in medical negligence cases, having won all the way to the Supreme Court of Canada. When we meet clients who are facing the unimaginable, we often hear the same misconceptions about bringing a lawsuit, as well as the same questions, “what would I have to prove”, followed by, “what should I do now?”

What do I have to prove?

At law, a plaintiff pursuing a claim against medical professionals must establish both that a breach of the standard of care owed to him or her has occurred and that the breach has caused an injury. When a court finds that both elements have been proved on the balance, negligence is found to have occurred and the Court then moves on to a determination of the damages to be awarded.

In order to establish negligence, all lawyers – including the lawyers who represent the physicians, nurses, and hospitals – retain medical experts who, along with the lawyers, review the evidence and provide the Court with opinions as to the actions of the parties.

The standard of care is the legal term used to describe the level of care that a medical practitioner is required to deliver. To find a breach of the standard of care owed, evidence must be presented to a court that establishes that a medical practitioner failed to do something that he or she ought to have done, or did something that he or she ought not to have done. Malpractice can occur from a course of conduct undertaken by the physician, for example, by the physician proceeding without obtaining informed consent, or by the physician’s failure to take appropriate action to treat the patient’s condition, for example, by failing to properly diagnose a condition when a reasonable physician would have properly diagnosed.

It is important to keep in mind that the medical team will not be held to a standard of perfection by the law. Medical practitioners are permitted to be wrong, provided the error in judgment is one that falls within a reasonable expectation. For example, a misdiagnosis of a medical condition isn’t always a breach of the standard of care where the medical practitioner conducted the proper investigation, ordered the necessary tests and reached a conclusion that many other physicians in his or her shoes would have reached. A breach of the standard of care goes beyond a mistake and represents a negligent act or omission.

In addition to a positive finding on the issue of the standard of care, evidence must also establish that the breach of the standard of care by the treating medical team ultimately caused the patient injuries, or in the alternative, has caused the patient’s condition to be worse than it otherwise would have been. This latter part of the negligence equation can become quite complex and requires the expertise, not just of the medical experts on the case, but the legal team.

Damages

Inevitably, individuals coming to see us about a potential claim in medical negligence ask, “What’s it worth?” Damages in these complex claims can be difficult to predict at the outset. Often, a review of the medical evidence, including current treatments and needs, is required before such broad stroke estimates can be given. What we do know is that there is a common misconception that general damages, also known as damages for “pain and suffering”, or “loss of enjoyment of life” are not as high as south of the border or the awards we see on media and television. In Canada, damages for this category of compensation have been significantly limited by the Supreme Court of Canada which, in 1978, considered this and held that the maximum amount of money an injured plaintiff could receive for “pain and suffering” was $100,000. That amount has gradually increased over time to keep up with inflation, and is currently at approximately $350,000.

In addition to general damages, individuals who have suffered from a breach of the care required of their medical team will also be entitled to seek damages to compensate them for the costs of any past and future treatment that may now be necessary, any past and future loss of income – which would include damages for any loss of competitive advantage in the workforce that results from the injuries sustained – compensation for household and housekeeping costs incurred as a result of the injuries sustained, as well as reimbursement for any out-of-pocket expenses arising from the injuries. Of course, as in any litigation, a successful party in a lawsuit is also entitled to a contribution to the legal costs incurred to proceed with the action.

In addition to misconceptions about the quantum of damages that may be available, individuals coming to meet our team of lawyers often believe that doctors are simply too powerful to sue. While it is very true that medical malpractice actions are extremely complex and can be difficult, a skilled lawyer who has extensive experience in this area knows that it can be done.

Most physicians in Canada are members of the Canadian Medical Protective Association (the “CMPA”), whose primary function is protecting the professional integrity of physicians. When a lawsuit is started as against a member of the CMPA, it is the CMPA that pays for the doctor’s defence costs, including hiring a lawyer, medical experts, and any other fees associated with the claim. When a lawsuit is either settled or won, the CMPA pays the Plaintiff the damages awarded.

It is also not true that all doctors stick together and that it will be difficult to obtain a report from a medical expert that confirms that the medical team made a critical error. Although there are many physicians who are uncomfortable with the litigation process and testifying against colleagues, lawyers who have experience in this field of law have access to credible experts who will review the case and provide an objective assessment of the treatment received, allowing the patient to make informed decisions about the potential case. It is important to appreciate that these actions don’t often settle in the early stages of litigation. Having a lawyer that does not merely dabble in this area of law will ensure that you have someone on your team who is experienced in dealing with the CMPA, its team of defence lawyers, and medical experts and knows how to proceed strategically through each step in the litigation.

Next Steps

At SorbaraLaw, we make the following recommendations to those who are not sure whether they have suffered from someone else’s medical negligence:

  1. Advocate for yourself. Always.
  2. Where your family doctor may be at fault, seek out a new family doctor. Not necessarily because you have a bad doctor, but because this is a very important relationship and is key to your medical health. Where the relationship has broken down, you need to advocate for yourself first and ensure that you feel comfortable with your care moving forward. Do similarly if it was not your family doctor but you are still being treated by the individual.
  3. Collect your medical records. If the incident occurred at a hospital, go to the records department and request a copy of your medical records. If your family doctor may be at fault, ask for a copy of those records.
  4. As difficult as it may be, write down everything you remember about the relevant events. Keep recording, moving forward, anything related to the injuries you have sustained.
  5. Where appropriate, take photographs of your injuries.
  6. Keep the limitation period in mind when considering whether to start a lawsuit. It is important to appreciate that in Ontario, the Limitations Act prohibits any lawsuit from being commenced after the second anniversary of the claim or the discovery of the claim.
  7. Call a lawyer and obtain a free consultation to learn more about the above, and how to proceed to investigate your claim.

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Cynthia Davis is a member of the SorbaraLaw litigation group and practises in the areas of civil litigation and citizenship and immigration.

By Ryan Baker 2015/11/13

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As many parents who pay child support already know, the determination of income is of critical importance. Until recently, gifts received by a payor parent did not normally impact child support payable. However, a recent decision by the Ontario Court of Appeal (“ONCA”) indicates that gifts will now be increasingly assessed as part of the income determination process.

The Child Support Guidelines (“Guidelines”) were adopted by Parliament in order to establish a fair standard of support for children. Prior to the implementation of the Guidelines, child support orders varied widely, which made it difficult for family law lawyers to provide advice with respect to child support payable. Not surprisingly, this often contributed to costly and protracted litigation.

As a result, Parliament decided that child support for minor children would be based, in part, on the number of children and on the income of the parent. As the ONCA observed in Bak v Dobell (“Bak”), Parliament sought to use fair and objective criteria to promote sustainability and consistency so that parties would be able to resolve the issue of child support expeditiously while minimizing the financial and emotional costs of litigation.

However, sometimes a payor’s income cannot be easily ascertained. Often, this is because a parent has not disclosed his or her income or because a parent has remained intentionally under-employed or unemployed. Frequently, it becomes apparent from the lifestyle of a payor that he or she is receiving undeclared income because the payor’s work history, lifestyle, and declared income do not match up. In these situations, it is appropriate to apply provisions within the Guidelines which give the Courts the discretion to impute – or assign – income to a payor parent for the purposes of determining child support payable.

At s.19 of the Guidelines, the Courts are permitted to impute income where a parent or spouse is intentionally under-employed or un-employed; except where under-employment or unemployment is in connection with the needs of a child, or where the reasonable educational or health needs of the parent necessitate. The Guidelines also provide latitude for imputing income where a parent is unfairly benefiting from legitimate tax or investment opportunities at the expense of child support payable.

The list of enumerated grounds found at s.19 of the Guidelines, while not exhaustive, do not anticipate those situations where a payor is receiving, or has received, gifts which allow the payor to live a lifestyle which is not commensurate with his or her declared income. Until recently, the Courts have been hesitant to impute income to a payor on the basis of gifts received from parents for a number of reasons.

For example, in Bak, the ONCA considered whether or not to impute income based on gifts received by the payor parent from his father. The payor’s father had historically supported the payor’s educational and vocational ambitions; and prior to litigation, had even purchased a condominium for his son so that he would ‘experience a sense of ownership’ and begin to live ‘like an adult’. The ONCA noted that the legislature had an opportunity to include gifts as presumptive income when it adopted the Guidelines; and yet, it chose not to do so.

The ONCA also pointed to a number of previous decisions where the Court did not impute income, despite substantial gifts being received by the payor on a temporary basis from a supportive parent. In cases like these, the Courts have stated that the support of an adult child should not be discouraged by imputing income based on that support.

In the end, the ONCA in Bak declined to impute income because this would have resulted in an indirect imposition of child support on the payor’s parent. Since Bak, the ONCA has shifted its position and now appears ready and willing to impute income where a payor receives a gift from his or her parent.

In Korman v Korman (“Korman”), the trial judge had imputed annual income to the husband in the amount of $120,000 on the basis of financial assistance which was received from his parents over the course of the marriage and following the date of separation.  Specifically, the husband received funds to start a business; he was the recipient of dividend income; and he had received assistance with the cost of the matrimonial litigation. Essentially, the trial judge found that, as gifts to the husband were likely to continue to be made in a substantially consistent fashion, an imputed income in the amount of $120,000 would be appropriate in the circumstances.

The ONCA in Korman recognized that s.19 of the Guidelines is not exhaustive and that imputation of income is fact-specific and dependant on the circumstances of the family. As a result, the determination of income for child support purposes should not be limited to income which is subject to taxation. Therefore, the Courts are able to retain their discretion to impute income – on the basis of gifts received – where that imputed income is supported by the evidence and is consistent with the objective of establishing fair support based on the means of the parties in an objective manner that reduces conflict, ensures consistency, and encourages resolution.

In Korman, the Court observed that the gifts received by the husband – over many years – had enabled him to establish a lifestyle well in excess of a basic standard of living for himself and his family during the marriage, and following separation. For these reasons, the ONCA did not disturb the trial judge’s discretionary imputation of income to the husband. As the Korman decision demonstrates, payors should exercise caution when receiving gifts of considerable value from their parents, as there could be a significant impact on child support payable.

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Ryan Baker is a member of the SorbaraLaw family law group, practising in our Guelph office.

By Devyn Coady 2015/09/21

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An Elevation of Safety Standards: Working at Heights and Alcohol Testing in Construction Industry

For employees and employers alike, safety is the number one concern in the construction industry. Here are some new developments that will help you keep up with safety standards.

WORKING AT HEIGHTS

In Ontario, falls are one of the leading causes of fatal accidents in the workplace. Working at heights in an unsafe manner, often due to a lack of training, is one of the largest contributors to this statistic, especially for workers in the construction industry. “Heights” under the Occupation Health and Safety Act and its regulations are defined as anywhere where the surface a worker might fall to, is more than three metres (10 feet) from where he or she is working.

On April 1, 2015, under the Occupation Health and Safety Act O. Reg 297/13, new training requirements for workers who workat heights came into effect in Ontario to help limit some of these fatalities.

These new requirements force construction companies to offer, and workers to complete, this new training program before the workers can work at heights.

Employer Obligations

Employers have a positive obligation to provide this new training to all workers who work at heights. In order to do so, they must contact one of the seven training providers appointed by the Ministry of Labour. To date, there are over 200 instructors available to deliver the approved programs.

While it is essential for all workers to be up to date with this new training, it is important to note that workers who had fall protection training under section 26.2(1) in O. Reg. 213/91 before April 1, 2015, will have until April 1, 2017 to get trained under the new requirements.

Training Program

The approved programs include new safety standards training relating to rights and responsibilities of working at heights, hazard identification, ladder safety, and proper usage of personal protective equipment. With this, it may also become a positive obligation on the employer to provide the worker with updated safety equipment as mandated by the training program.

The training program consists of two sections. The first is a theory section based on knowledge and awareness. The second is a hands-on approach that includes demonstrations of procedures.

Once completed, the training will be valid for three (3) years from the date of completion.

Alcohol Testing

Unionized Workplaces

In Communication, Energy and Paperworkers Union of Canada, Local 30, v. Irving Pulp & Paper, Ltd. the Supreme Court of Canada brought clarity to the law for alcohol testing in a unionized workplace. In this case, the employer’s policy included a universal random alcohol testing clause wherein 10 percent of employees deemed to be in safety sensitive positions were to be randomly selected for surprise breathalyser tests over the course of a year.

The Supreme Court said that an employer can only impose a rule with disciplinary consequences if the need for the rule outweighed the harmful impact on employees’ privacy rights. The question was whether there was “reasonable cause” to perform testing.

In a safety-sensitive work environment, employers are generally entitled to test individual employees on a case-by-case basis if there is “reasonable cause” to believe than an employee was impaired while on duty, where the employee was directly involved in a workplace accident or incident, or the employee is returning to work after treatment for substance abuse. A unilaterally-imposed policy of random testing for all employees in a dangerous workplace is not permitted unless there is a general problem of substance abuse in the workplace.

In this case, the Supreme Court of Canada ruled that the employer’s mandatory random alcohol testing was not justified. Although there had been eight documented alcohol consumption or impairment incidents over a fifteen year period, there had never been any accidents, injuries or near misses associated with the alcohol use.

Non-Unionized Workplaces

The balance struck by the court between safety and privacy in non-unionized environments is slightly different. Random alcohol testing is permitted where:

In a non-unionized environment, an employer does not have to show that there is a general problem of substance abuse in the workplace to implement random alcohol testing.

As is the case in a unionized environment, employers of non-union workplaces may also carry out testing on a case-by-case basis in a safety-sensitive environment where there has been an accident, or where there is a suspected case of alcohol impairment. However, an employer must have a written policy in place before performing any testing.

At the end of the day, when in doubt as to your obligations or rights concerning any safety measures, it is best to seek legal advice.

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Devyn Coady is a member of the SorbaraLaw litigation group, practising in the areas of commercial litigation and employment law.

By Susan Liu 2015/09/14

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For foreign nationals, including international students and foreign workers, there are new provincial nominee programs, in addition to the federal immigration programs, that offer further opportunities for becoming a permanent resident of Canada.

On June 3, 2015, the new Opportunities Ontario: Provincial Nominee Program (“OOPNP”): Ontario Human Capital Priorities Stream came into effect. It coincides with the Citizen and Immigration Canada Express Entry program that commenced on January 1, 2015.  The Express Entry stream manages the application process for permanent residency under the Federal Skilled Worker Program, the Federal Skilled Trades Program, and the Canadian Experience Class by using the Comprehensive Ranking System (“CRS”), which assesses candidates based on a number of criteria.  Only the top ranked candidates will be invited to apply for permanent residency.  The new Ontario Human Capital Priorities Stream enables candidates with qualified education, work experience and language skills to apply for permanent residency through the Express Entry program with an additional 600 CRS points. The program focuses on candidates who have entered the Express Entry pool and have qualified for either or both of the Federal Skilled Worker Program and the Canadian Experience Class.

Consistent with the existing programs that encourage highly educated foreign nationals to stay in Ontario, the new provincial nominee program requires applicants to have an education that is equal to or higher than a bachelor’s degree.  In addition, a language level of Canadian Language Benchmark (“CLB”) 7 or above in all language competencies (reading, writing, listening, and speaking) is another “must” to be eligible for this program.  Last but not least, all candidates must achieve a minimum score of 400 CRS points.

As the most populated province in Canada, Ontario appreciates international students and skilled foreign workers who manage to obtain a permanent job offer in Ontario.  Updates were announced regarding nominees of foreign workers and international students with a job offer as well as employers who are to support the nominees in the PNP application. These updates took effect on the 25th of June, 2015.

A specific update, which supplements the existing application requirements of employers, is that employers in the Greater Toronto Area (“GTA”) need to have five permanent full-time employees who are Canadian citizens or permanent residents before they offer a permanent full-time position to a foreign worker or an international student. Employers located outside the GTA must have three permanent full-time employees who are Canadian citizens or permanent residents.

The key element of this program is the job offer.  Eligible employers must provide an international student or a foreign worker with a permanent full-time job in a skilled occupation of National Occupational Classification (“NOC”) skill level 0 (management jobs), skill level A (professional jobs) or skill level B (technical jobs and skilled trades). The prevailing wage must be paid to foreign workers while international students must at least be offered an entry-level wage.  Employers need to submit an Employer Pre-Screen Application for the position they are offering first, and then the foreign worker or international student can apply to OOPNP for the position, once it has been approved.

Unlike the new Ontario Human Capital Priorities Stream and despite the upcoming changes, the traditional provincial nominee program still concentrates on filling the Ontario labour market with foreign nationals who possess enough experience and skill to secure a permanent full-time job. Education and language levels are secondary for this program.

OOPNP provides an opportunity for those who either have an advanced education and high language levels or have excellent work experience and skills to stay in Ontario.  Now that the new program finally links the Ontario Provincial Nominee Program to Express Entry Program, six months after it has been launched. OOPNP will definitely attract more attention and interest from those who intend to stay in Ontario permanently.

** All policy related information is from Opportunities Ontario: Provincial Nominee Program.

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Susan Liu is a lawyer at SorbaraLaw and part of the immigration team, assisting corporate clients with temporary and permanent immigration applications and other complex immigration issues that can arise for companies doing business internationally.

By Seth Jutzi 2015/09/07

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The Ontario Liberal Government recently introduced new legislation intended to overhaul the province’s outdated condominium laws.  With an estimated 1.3 million condo owners in Ontario and condos making up more than half of new homes being built, the condominium landscape has changed drastically since the Condominium Act came into force in 1998. Accordingly, condo owners and prospective purchasers in today’s market face problems not contemplated by existing condo laws. The new bill, known as the “Protecting Condominium Owners Act,” aims to enhance the protection of condo owners through increased oversight of condo boards and managers, regulations to reduce the occurrence of fraud, and also creates a new mechanism for alternative dispute resolution.

The proposed bill comes as a result of two years of governmental consultation and review, and focuses on protecting the financial interests of condo owners and purchasers by imposing stricter disclosure obligations on condo boards.  The legislation also seeks to enhance the accountability of condo boards to owners regarding ongoing operating costs. Increased disclosure requirements are also intended to promote financial transparency and alert prospective purchasers to unexpected costs that might arise post-closing.

For owners of existing condos, the mismanagement of condo corporation finances has become a frequent problem. There has been a steady rise in the number of court-appointed administrators taking control where condo boards have failed to maintain adequate reserve funds. This can result in condo owners incurring extra expenses for the replacement and repair of common elements, which is something that reserve funds are intended to cover. The new legislation will impose strict regulations on condo boards to ensure that reserve funds are kept at adequate levels and will set higher standards for the financial management of condo corporations. Furthermore, the legislation provides for the establishment of an independent licensing authority for condo managers, requiring minimum qualifications and mandatory training. These new provisions aim to regulate the growing industry of condo managers. The licensing system should also reduce the prevalence of fraud in the management of condo finances.

Perhaps the most salient feature of the new legislation is the creation of a new mechanism for dispute resolution. An independent administrative tribunal called the “Condo Authority” will be an arms-length, self-funded alternative to traditional litigation involving condo disputes. It will allow for quicker, lower-cost dispute resolution, making it easier for condo owners to settle complaints while avoiding lengthy and costly litigation. A charge of $1 per month per condo, collected as part of monthly condo fees, will be imposed to fund the Condo Authority. While some condo owners will be opposed to the new fee, it pales in comparison to the hefty costs usually associated with condo disputes.

Despite the need for reform, the new bill fails to address some important areas of concern for condo owners. For example, it neglects to provide a framework for relief in situations where purchasers are unhappy with substandard construction or condo developers do not deliver on their promises. The new provisions are instead centred on the prevention of condo mismanagement and fraud through enhanced regulation and oversight mechanisms. The proposed reforms are long-awaited, and upon successful implementation, should bolster the protection of condo owners. If passed, the Government expects that the new legislation will come into effect in 2016, with the Condo Authority to be up and running by 2017.

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Seth Jutzi is a lawyer in the corporate-commercial group at SorbaraLaw, bringing a collaborative approach to deconstructing legal and business issues in pursuit of innovative solutions for his clients.

By Lynn Dramnitzki 2015/08/31

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The Environmental Protection Act provides that the Ministry of the Environment (Ministry) may issue orders to prevent or reduce the risk of a discharge of a contaminant into the natural environment and/or to prevent, decrease or eliminate an adverse effect that may result from the presence of or discharge of a contaminant in, on or under the property.  The Environmental Protection Act provides that Orders can be made against anyone who owns, owned or who has or had management or control of an undertaking, property or source of discharge of a contaminant into the environment which has an adverse effect on the environment.  Failure to comply with a Ministry Order can result in criminal sanctions for failure to comply.

In 2013, the Ontario Court of Appeal in Kawartha Lakes (City) v. Ontario (Director, Ministry of the Environment) held that the provisions with respect to Orders issued pursuant to the Environmental Protection Act are “no-fault,” and accordingly, a party is required to comply with a Ministry of the Environment Order issued against them even if they are innocent in respect of any discharge of contamination onto their property.

The Ministry of the Environment takes a very broad interpretation with respect to who it considers to have or have had ownership and control of an undertaking, property or discharge of a contaminant into the environment.

In Baker v. Ontario (Ministry of the Environment), the Ministry of the Environment issued orders against former officers and directors of Northstar Aerospace Canada and its U.S. parent company personally, Northstar Aerospace Inc., to continue to pay for the clean-up of its property in Cambridge, Ontario after Northstar Canada and Northstar Aerospace filed for creditor protection and Northstar Canada made an Assignment in Bankruptcy. Northstar Canada owned lands in Cambridge, Ontario and operated a factory which built helicopters on the property from 1974 to 2009.   In the early 2000s, it was found that Trichloroethylene was migrating off of the Cambridge property onto neighbouring properties.  Starting in 2004, Northstar Canada, with the assistance of Northstar Aerospace, voluntarily undertook a clean-up, monitoring and reporting program (the “remediation program”) with respect to the migration of the contaminant off of its property.  In 2009, Northstar Canada and Northstar Aerospace, who were experiencing financial difficulties, closed the Cambridge facility; however, they continued with the environmental program.  In early 2012, the Ministry of the Environment became concerned about the financial viability of Northstar Canada and in April 2012 they issued Orders against both Northstar Canada and Northstar Aerospace to continue the remediation programs it had voluntarily undertaken to that point.  In June 2012, it issued an Order requiring both Northstar Canada and Northstar Aerospace to provide $10 million in financial assurances.  After the June 2012 Order was

issued, both companies, who did not have the financial resources to comply with the June 2012 Order, sought protection from creditors and in August 2012, Northstar Canada made an Assignment in Bankruptcy.  All of the directors and officers resigned in favour of the court-appointed monitor in June 2012.  In August 2012, the Ministry of the Environment took over responsibility for payment of the costs of the remediation program.  In November 2012, the Ministry of the Environment issued Orders against all of the former officers and directors of both Northstar Canada and Northstar Aerospace, including directors and officers who had been appointed after 2009, when the Cambridge plant was closed, and directors and officers who did not have any authority with respect to the Cambridge facility or the environmental issues at that property. The Ministry’s rationale was that the new directors had exercised management and control by causing the companies to seek creditor protection in June 2012. The directors and officers immediately appealed the Order to the Environmental Review Tribunal (the “ERT”) and asked for a stay of the Order pending the appeal.  The ERT refused to grant a stay and the Ontario Superior Court of Justice refused to deal with the matter.  As a result of the refusal of the ERT to grant a stay pending the appeal, the directors and officers were required to continue to comply with the Order to continue the remediation at a cost of $150,000.00 per month.  The remediation  costs were not recoverable even if it was ultimately found that the Ministry of the Environment had improperly issued the Order.  Given the ongoing costs of complying with the Order, and the high costs of litigation, the directors ultimately agreed to settle the matter by paying approximately $4 million towards the cost of the remediation of the property.  As the matter settled, no tribunal or court decision was made with respect to the personal liability of the officers and directors.

Recently, the Ministry of the Environment has issued an Order in the case of a discharge of contaminants that ran into the local drainage system from a former petrochemical plant in Fort Erie, Ontario.  The Order was issued not only against the corporation who owned the property, but also its former director (now deceased), its current director (his son who inherited the company) and the petrochemical company which operated a business at the site between 1974 and 2014 and its directors and officers. It also included the accountant who held the Power of Attorney for the purpose of selling the property, and the real estate brokerage company and its officers and directors who were retained to sell the property.  The rationale given for making the Order against the real estate brokerage and its directors is that they maintained a lockbox on the property and had arranged for a waste management company to attend at the property.  The Order is currently under appeal to the Environmental Review Tribunal, and it is not yet known what the result of the appeal will be.  News reports indicate that the costs of clean-up are approximately $45,000.00 per week.

These two recent cases demonstrate the Ministry of the Environment is casting a wide net when making Orders in respect of discharges of contaminants into the environment, and until the Environmental Review Tribunal or Court determines whether such Orders are valid, it should be assumed that the Ministry of the Environment will continue to make such Orders. The financial consequences of such orders are devastating. Anyone purchasing or dealing with any property or business should be extremely cautious and exercise thorough due diligence with respect to environmental risks associated with any property or business before taking on any role which might be deemed to give them ownership, management or control of that property or business.

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Lynn Dramnitzki is a lawyer at SorbaraLaw and has defended her clients’ interests in matters involving environmental, property, and personal injury law. She has also assisted in matters involving municipal governance, planning and zoning, land assembly and by-law enforcement.

By James Tait 2015/08/23

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The Personal Representative of an Estate (Estate Trustee, also known as an Executor or Executrix) is now required to perform one more task in the administration of an Estate in the Province of Ontario.

As before, when dealing with Estate assets, the Personal Representative may need to make an Application for Certificate of Appointment of Estate Trustee With (or Without) a Will, formerly known as “Probate” to the Superior Court of Ontario. The Application requires a statement of value of the personalty and real estate holdings of the deceased. “Personalty” includes personal property like jewelry, furniture, art, etc. For Applications made after January 1, 2015, a deposit is paid with the Application based on the total Estate value under the Application, and upon issuance, the deposit becomes “Estate Administration Tax” (E.A.T.) (formerly known as probate fees).

The E.A.T. rate remains the same as prior to January 1, 2015, and is payable by the Personal Representative in his/her or its representative capacity only. The amount of E.A.T. is $5.00 for each $1,000.00 of Estate assets up to $50,000.00, and $15.00 for each $1,000.00 of Estate assets over $50,000.00.

Generally, the assets subject to E.A.T. include real estate in Ontario (less encumbrances), bank accounts, investments (stocks and bonds), valuables, automobiles, boats, household contents and property held for the deceased by another party, and all property wherever situated. Note that certain assets designating a beneficiary (i.e. insurance policies, R.R.S.P.s, tax free savings accounts), joint assets with right of survivorship, and assets covered under a Secondary Will, are excluded.

Prior to the new Regulation, there was no formal requirement to substantiate the values stated in the Application. Now, effective January 1, 2015, there is a strict requirement as set out in the Regulation, to file an Estate Information Return (E.I. Return) stating the value of Estate assets at the time of death, within 90 days after the Certificate of Appointment is issued by the Court.

The E.I. Return requires particulars of the Certificate of Appointment, the deceased and the Personal Representative. There is also a requirement for full particulars of each asset included in the Estate and the valuation assigned to that asset. For example, real estate in Ontario requires the assessment roll number, the property identifier No. (PIN), address, and postal code, together with the fair market value.

Some E.I. Returns may be audited by the Ministry of Finance and the Personal Representative will be required to substantiate the value of the assets as stated in the Return. There are procedures for dealing with assessments which are governed by the Retail Sales Tax Act of Ontario.

The Act sets out two further requirements, if applicable. The Personal Representative is required to file an amended E.I. Return within 30 days of the Personal Representative becoming aware that the information in the E.I. Return is incorrect or incomplete, or if the initial E.I. Return was based on estimated values. The Personal Representative’s obligation continues for four years from the date that the Certificate of Appointment was issued.

The second responsibility relates to subsequently discovered property, of which the Personal Representative must inform the Court and file a revised E.I. Return. This obligation continues indefinitely.

The Act now provides serious penalties for failing to file an E.I. Return or making false or misleading statements. The penalty may be a fine of at least $1,000.00 but not exceeding twice the amount of the E.A.T. payable by the Estate if that amount is greater than $1,000.00, and in extreme circumstances, possible imprisonment for a term of not more than two years, or both. There is a saving provision for any person who did not know that the statement or omission was false or misleading and in the exercise of a reasonable diligence, could not have known that the statement or omission was false or misleading.

When appointing a Personal Representative, it is important that the representative has interest in, and is capable of carrying out the duties and responsibilities of a Personal Representative, is in good health, and has the time to do so. The Personal Representative must be aware of the duties and responsibilities of a Personal Representative, and be given in the Will the powers to obtain legal, tax and investment advice as required in the administration of the Estate according to law. It is important these matters be considered when planning your Estate and that they be addressed in your Will.

For advice on this topic and all Estate matters, please contact a lawyer in the Sorbara Law Estates Group.

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James Tait is a lawyer at SorbaraLaw, providing personal legal services in the areas of business law, wills and estates and real estate from our Waterloo office.


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