Knowledge Centre Archives - Page 8 of 9 -

In October, 2013, the Supreme Court of Canada dismissed an appeal from a SorbaraLaw victory at the Court of Appeal of Ontario marking the successful end of a long process for our client’s family.

Back in February, 2011, Greg Murdoch, a partner in charge of Sorbara Law’s litigation Group, and Steve Kenney, counsel to the firm, obtained a significant Judgment in a medical malpractice action involving the misdiagnosis of an aortic dissection in a pregnant woman. The trial took place over five weeks in the fall of 2010. The Supreme Court’s decision affirmed the win at trial.

Our client, Christine Manary, was 28 years old and 32 weeks pregnant with her first child when she attended Grand River Hospital in August of 2003 with significant radiating chest pain. On admission, her symptoms in addition to the severe chest pain included an unusual heart murmur and were considered to be consistent with either a pulmonary embolism (blood clot) or an aortic dissection (a tearing of the inner lining of the artery). The doctors caring for Christine downplayed the possibility of a dissection because of her age. Christine died nine days later when the dissection ruptured on the day she was to be discharged. Fortunately, her daughter was delivered by caesarian section and survived without any adverse consequences.

During her admission, Christine had numerous diagnostic tests which suggested a pulmonary embolism was not the cause of her symptoms. Diagnostic imaging in fact disclosed that Christine had a dangerously large aortic aneurysm which is a bulging of an artery. The significance of this symptom and the danger it imposed and how it might relate to Christine’s symptoms was not acknowledged.

The Court reviewed Grand River Hospital’s policy of assigning a most responsible physician for each admitted patient.

For obstetrical patients, the obstetrician is the most responsible physician. The MRP is responsible for writing and clarifying orders, providing a plan of care, obtaining consultations as appropriate and coordinating the care of the patient.

The Court agreed with SorbaraLaw’s submissions that the obstetrician in this case failed to discharge his duties as most responsible physician because he focused only on Christine’s obstetrical issues and let other non-cardiac specialists deal with Christine’s cardiac issues. The obstetrician failed to exercise independent critical judgment when an alternative diagnosis to pulmonary embolism should have been pursued.

The Court preferred the evidence of the vascular surgeon called on behalf of Christine who testified that if Christine’s condition had been recognized for its seriousness, she could have had surgery within hours.

The obstetrician appealed the decision to the Ontario Court of Appeal which affirmed the trial Judge’s decision noting that an MRP must exercise independent critical judgment when assessing a patient and consulting with other specialists.

A motion seeking leave for a further appeal to the Supreme Court of Canada was denied.

Medical malpractice cases are extremely challenging and always hard fought battles. This is a significant achievement for our client. Congratulations to the SorbaraLaw litigation team!

Article written by
Cynthia Davis,
B.A. (Hons), LL.B. was called to the Bar in 2007 and is a member of SorbaraLaw’s litigation group. Cynthia works out of the Waterloo office.

Print This Article

Estate Administration – Lisa Toner

Common issues that arise in families upon the death of a parent (or parents) are questions as to the parents’ choice of Executor, the distribution of personal items with sentimental value, the treatment of the family cottage or vacation property, and any unequal division of the Estate among beneficiaries, whether actual or perceived.

Clear, effective and open communication as to one’s Estate plan can go a long way to reducing conflict and resentment in a family after death. One way of achieving this is through the family meeting. The family meeting is an opportunity to communicate to your family the reasons for the decisions you have made in these and other areas.

Experts suggest that a family meeting should have a formal agenda so that the participants realize that it is not a social function. Parents who plan to hold a family meeting with their adult children should consider and communicate their goals for the meeting ahead of time. They will also want to consider whether to include their children’s spouses in the meeting. If spouses are not invited, explain why. During the meeting, it is important for parents not to simply “talk at” their children, but to invite and actively listen to feedback. (Whether that feedback ultimately results in changes to the Estate plan, is of course, up to you).

Many people consider the appointment of Executor to be an honour, and are hurt when they learn they were not chosen. Explain to your children the reasons for choosing one (or more) of your children over the other or others. It could be something as simple as geography: while certainly not impossible, there is no question that having an out-of-province Executor is more difficult. Perhaps one of your children is single while the other has a full-time job and three children under the age of five. Therefore, the single child is simply more available to devote the time required. Having several Executors can be unwieldy which is why you only selected one or two. Having this discussion can reassure your children that your choice does not mean you favour one child over the other, or that you believe one child to be less capable.

Resentment can also arise when the named Executor proposes to take compensation for administering the Estate. If you expect your Executor to take compensation (and I believe you should), explain why. Many children do not understand the role and responsibilities and the time commitment that is required of an Executor. Executors also risk personal liability for any mistakes that are made. These are all good reasons for the Executor to be fairly compensated for the work performed.

If you are leaving a particular item that may have sentimental value to one child, discuss that. You may be surprised to find that child is not particularly interested in it and is happy for it to go to another child who has always desired it. If, on the other hand, you have simply given the Executor full discretion to distribute your personal and household items, explain why.

As indicated in a prior article in LegalEase, the family cottage or vacation property is rife with opportunity for conflict. A thorough discussion about the different options for dealing with the property is recommended. Is it your intention that one or more of the children receive the cottage, and that you will equalize this gift with other assets going to the other child(ren)? Why? One child may feel the cottage should go to her as she uses it the most and has put time, effort and money into its upkeep. The other children may feel that is unfair as they would use the cottage more if they didn’t live so far away; and they would be happy to help with the maintenance and financial upkeep of the property but are unable to do so for economic reasons. Or perhaps you have decided the cottage should be sold (with or without the children having right of first refusal). Either way, chances are there will be capital gains tax payable on the cottage. Is that to be paid by the child or children who receive the cottage or by the Estate? It may even be preferable to transfer the property before death. These are all points for discussion.

There is really no limit to the items that can be reviewed at the family meeting. It may even be necessary or desirable to have a further meeting or meetings. It is advisable to have notes taken or minutes kept. Of course, it is always recommended to ensure that the Estate plan, once conceived, is properly documented through a well-drafted Will, or perhaps even the use of Trusts.

For more information about Estate planning, please contact Lisa Toner.

Article written by
Lisa Toner
, B. Soc. Sci., LL.B., has been with SorbaraLaw since September 2007, practicing in the areas of wills, estate planning and estate administration.

Print This Article

Municipal, Land Use and Development – Michael Letourneau

The Ontario Planning Act provides municipal governments with a great deal of control over how their communities develop. It provides numerous mechanisms for municipalities to designate what can be done with the land within their borders. The general purpose of these mechanisms is to foster stable, healthy communities. They include the powers to establish zoning by-laws, collect development charges, and create official plans to guide community growth. One of the Act’s most powerful tools, however, is the power to decide how landowners can subdivide their land.

At common law, a landowner can subdivide a single piece of land by selling off portions of it to different owners. The Act, however, prohibits doing so without municipal approval (or provincial approval in remote communities without municipal governments). The most visible example of this is the process for creating new residential subdivisions, where prospective developers must submit detailed plans not only for the housing they intend to build and sell, but also for the services that they must build or pay for to serve those properties such as roads, drainage, utilities, parks, etc. The municipality must ensure that the plans meet their standards and conform to their official plan before they will be approved under the Act.

Another less visible, but still important, growth control mechanism under the Act is “consent to severance”. Through the granting of consent to sever, a municipality may authorize a person to subdivide land on a smaller scale, and without the need for a formal subdivision plan. These severance consents are used for a wide variety of land use and development purposes, including small scale property development.

In order to further control development allowed by severance consent, the Act empowers municipalities to attach conditions to consent approvals. The range of potential conditions is very broad, and covers anything that the approval authority feels is required for proper development. In order to provide stability to the severance consent process, the Act also imposes timelines on the processes for approving consent applications, satisfaction of conditions, and the validity of certain documentation. These timelines are highly technical in nature, and both municipalities and developers need to pay careful attention to exactly what they regulate.

In general, an applicant has one year to meet any conditions attached to the decision granting their severance consent; if they do not do so, their original application is deemed to be refused. The Act also requires that the municipality be satisfied that those conditions are met, but it does not connect that requirement to the “deemed refusal”. Once the municipality is satisfied that the conditions are met, it can issue a certificate saying that consent was granted, and that the consent is valid for at most two years from the date of issue.

While this system appears to be fairly straightforward, the technical language in the Act and the case law interpreting it has proved otherwise.

Unless a municipality imposes specific conditions in each consent decision describing when they are to be notified that the condition has been met, there is case law that establishes that a municipality cannot require that an applicant do so within the one year timeframe.

Many municipal consent authorities operate on the basis that if an applicant fails to inform them within one year that their conditions were satisfied, no consent exists. The Act, however, places such consent decisions
“in limbo” and a municipality who then refuses to grant final consent in those circumstances could be compelled to do so by a court. The court could also require the municipality to pay the legal costs of the applicant in obtaining the court order required.

All of these consequences can be avoided by municipalities simply taking a few simple steps. A municipality can attach conditions to each consent decision they issue that require the applicant to provide evidence that the other conditions involved have been satisfied within a year. Further, municipalities should be proactive in issuing consent certificates as soon as the conditions attached to a consent decision have been satisfied – doing so will immediately start the two-year validity period.

While all of this sounds like a potential windfall for land developers, developers need to consider the value of disputing the timeframe for making a consent valid. While a developer may be able to successfully obtain an order from the court extending the life of a severance consent despite the stance by the municipality that it has lapsed, these approaches can be both costly to pursue and may strain relations with the issuing municipality. Instead, developers dealing with land severance and consent issues ought to work towards being proactive in satisfying consent conditions. For example, they should appoint a single key person to manage the process of meeting the required conditions. That person should engage suppliers, consultants, and legal counsel early in the process, establish a timeline for satisfying conditions, and check in on the process regularly. Proper management will cost a developer relatively little compared to the costs required to salvage a lapsed consent decision that is necessary to accomplish a larger project.

Article written by
Michael Letourneau
, is a lawyer in the Municipal, Land Use & Development Group whose practice includes real estate law for land developers.

Print this article

Wills, Estates, Trusts, and Elder Law – Lisa Toner

Often, minor children are designated as beneficiaries of the proceeds of life insurance policies, or of investment accounts such as RRSPs and RRIFs.  Minor children, however, are considered parties under a disability and as such are not entitled to receive funds directly.  Therefore, the funds must be received by a Trustee on behalf of the child, and kept invested for his or her benefit until the age of majority (age eighteen in Ontario).

Unfortunately, in many cases, beneficiary designations are made without a great deal of consideration and without any professional advice.  Often, Trustees for minor beneficiaries are not named.  This often occurs when group life insurance and/or group RRSPs are offered by an employer, and a new employee is required to sign a number of forms at once for his or her employer.  Often these forms are standardized, and some do not include space for naming a Trustee.  If the form does contain information regarding naming a Trustee, it is typically in fine print and easily missed.  Often, the forms do not include powers for the Trustee, but if they do, they are restricted to a short, standard paragraph, which cannot be amended to reflect the employee’s specific circumstances or wishes.

Where no powers for the Trustee are specified, then a “bare trust” is created, meaning the funds must be held until the minor is eighteen, and in the meantime, there is no ability to access the funds for the child’s needs (for example, for sports, camps, orthodontics, music lessons, counseling, education, etc.).  In addition, these standard Trustee clauses never permit the holding of funds beyond age eighteen.

A child’s parent, while automatically the guardian of the child’s person, is not automatically the guardian of the child’s property.  Thus, if a Trustee has not been named, the child’s parent or guardian must apply to Court to be appointed to manage the child’s property.  The Office of the Children’s Lawyer (OCL) must be served with the Application, and responds to it on behalf of the child.  It is by no means automatic that the Application will succeed.  In many cases, the OCL will not consent to the guardianship Application, particularly if the person applying has little in the way of income and/or assets, has no experience managing money, or has a history of financial mismanagement.  As well, if a child’s parent or guardian applies, he or she may be considered to have a conflict of interest if he or she wishes to access the funds to help defray his or her own obligation to support the child.  In addition, the OCL is often of the view that payment of the legal fees for the Application ought not to be made from the minor’s funds, especially if the Application has little chance of success, and as such, the proposed guardian is required to pay personally for what may well be an unsuccessful Application.

If no Trustee is named, and no guardian appointed by the Court, the funds will be paid into Court to be managed by the Accountant of the Superior Court of Justice (ASCJ).  This is not necessarily an undesirable outcome, as over time, some Trustees and guardians of property find the role to be time-consuming and complex; but it is in all likelihood, not the outcome the deceased would have wanted.  Clearly, it is important to have the appropriate beneficiary designations in place in advance, in order to avoid this situation completely.  Added benefits of doing so are the ability to specify Trustees’ powers, and to have the funds held until later than age eighteen if desired.  Beneficiary designations do not have to be made on the insurance policy or on the investment account forms.  They can be done separately as a stand-alone document, or in a Will.  Advice should be obtained from a lawyer competent in Wills and estate planning, and from your financial advisor.

 

* * 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.

Author: Lisa Toner is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Lisa may be reached at (519) 741-8010 or <ltoner@sorbaralaw.com>

Print This Article

Wills, Estates, Trusts, and Elder Law – Lisa Toner

Few assets generate the kind of emotion associated with the family vacation property.  Whether it is a cottage, farm, ski chalet, or a condominium in a warm locale, estate planning for this asset can be a significant challenge, and the lack of proper planning can result in costly tax consequences, as well as hurt feelings among family members.

In Canada, a portion of the increase in value of certain assets from the date of acquisition to the date of disposition is subject to capital gains tax.  The principal residence is one exception.  Since Canadians are entitled to only one “principal residence”, however, the capital gains tax will usually apply to the vacation property.  When the property is left to a spouse, the capital gains tax is deferred until the death of the second spouse.  When the vacation property has been in the family for many years, this tax, which is triggered by death or by the sale of the property to a third party, can be significant.

If there is not enough liquidity in the estate after death to pay the capital gains tax, the property may have to be sold.  This is usually contrary to the vacation property owner’s desire to have the property remain in the family to be enjoyed by future generations.  One way of addressing this issue is to purchase life insurance, assuming the vacation property owner is in good health and insurance can be obtained at a reasonable cost.  The estate will receive the proceeds of the life insurance tax-free and can use those funds to cover any capital gains tax liability.

A second option is to transfer the property to the next generation during the lifetime of the owner, either outright or as joint tenants, or to transfer the property into a family trust.  Although this will trigger a capital gain in the name of the owner at the time of the transfer, any future gains will accrue in the names of the next generation property owners.  This may make sense if the next generation is the primary users of the property in any event.

Where the property is transferred to more than one owner, whether before death or after, a co-ownership agreement is highly recommended.  The agreement should address such issues as the payment of ongoing repairs and maintenance, the payment of large capital expenditures such as a new roof or new windows, and what to do if an owner fails to fulfill his or her obligations in this regard.  The agreement should speak to what happens if one of the owners dies or becomes incapacitated, the division of responsibilities among owners for tasks such as paying bills and performing routine property maintenance, and could also include a schedule for use of the property (or a method for determining the schedule) in each year.

Aside from possible tax consequences, there can be other complicating factors in dealing with vacation properties.  What if only one child uses the property but does not have the financial ability to maintain it himself, and/or buy out his siblings?  Since there may be family members who are not interested or cannot afford to co-own the vacation property, a discussion as to the best method of dealing with this asset on death would be wise.  If the property is dealt with in the Will rather than transferred prior to death, granting each child, in a pre-determined order, a first right of refusal to purchase the property, as well as establishing a method for valuing the property, should be considered.

 

* * 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.

Author: Lisa Toner is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Lisa may be reached at (519) 741-8010 or <ltoner@sorbaralaw.com>

Print This Article

Real Estate – Jacquelyn Johnson

If you are thinking of purchasing a home in the near future, the federal government has implemented some new mortgage rules that you need to be aware of. These new rules came into effect July 9, 2012, and will affect home buyers or owners who are mortgaging a property.

Most notably, for new government-backed insured mortgages, the amount of equity that can be borrowed against a property has been reduced, from 85% to 80% of the value of the property.

Another more contentious change is the reduction of the maximum amortization period from 30 years to 25 years. An amortization period is the amount of time it will take a homeowner to pay back the principal amount of a mortgage. This new shorter period means that the principal will be paid back quicker by the borrower, resulting in savings on the total amount of interest paid on that principal amount. However, it also means that the individual payments will be higher because there is less time to pay the principal back in full. This change has the effect of decreasing the total cost of a home a buyer is able to finance.

In making these changes, the government is attempting to help homeowners build up the equity in their homes quicker and to pay off their mortgages sooner, with the ultimate goal of strengthening Canada’s housing finance system. Finance Minister Jim Flaherty is seeking to cool down what many experts see as an “overheated” mortgage market, with many Canadians carrying debt loads that are beyond their comfort ranges. In fact, the average rate of debt to disposable income currently in Canada is an alarming 152%.

But in spite of the Minister’s aggressive push to inform the public of these new rules, a recent poll conducted for the Bank of Montreal showed the majority of Canadians are unaware of the changes.

Given that a home is the largest purchase most Canadians will make in their lifetimes, it is important to be aware of the rules and consequences relating to the mortgages used to finance such purchases.

* * 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.

 

Author: Jacquelyn Johnson is a Lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Jacquelyn may be reached at (519) 741-8010 or <jjohnson@sorbaralaw.com>.   

Print This Article

Municipal, Land Use, and Development Law – David Sunday

As part of its consultations on the development of a new Provincial Policy Statement (“PPS”), Ontario’s Ministry of Municipal Affairs and Housing recently made available draft PPS policies (http://www.mah.gov.on.ca/Page9990.aspx) and invited stakeholder comments:

(http://www.mah.gov.on.ca/Page10054.aspx)

The PPS is intended to provide “policy direction on matters of provincial interest related to land use planning and development”. It has legal weight by virtue of a provision within the Planning Act that requires all decisions of land use planning authorities to be consistent with the PPS. To see what’s new in the draft PPS, I created a comparison of the draft policies to the existing PPS 2005 which you can view here:

(http://ontariolanddevelopment.files.wordpress.com/2013/01/pps_comparison.pdf)

If you look at the comparison, you’ll see right away that what’s proposed is not a complete rewrite, but rather a revision to what’s already there in the PPS. That said, there are some fairly significant proposed changes. Some of the more interesting changes relate to the “greening” of development.

GREEN INFRASTRUCTURE

A very obvious “green” addition in the draft PPS policies is the introduction of the new term Green infrastructure:

Green infrastructure: means natural and human-made elements that provide ecological and hydrological benefits. Green infrastructure can include components such as natural heritage features and systems, parklands, storm water management systems, urban forests, permeable surfaces, and green roofs.

Green infrastructure appears to require a new and different understanding of what we currently think of as infrastructure, another defined term in the PPS. Unlike infrastructure, green infrastructure is not limited to just “facilities and corridors”, but may include any “element” that provides “ecological and hydrological benefits”.

The only draft PPS policy dealing with green infrastructure is section 1.6.2. This section requires planning authorities to encourage the use of green infrastructure to augment infrastructure and for other associated ecological and hydrological benefits before consideration is given to developing new infrastructure and public service facilities.

It’s notable that the definition of green infrastructure contains no reference to infrastructure itself, which suggests that green infrastructure is not intended to be just a subset of infrastructure. Rather green infrastructure seems intended to be something that stands beside infrastructure, figuratively speaking, and somehow lessens the load that conventional infrastructure would otherwise have to bear.

The draft policies provide some examples of green infrastructure but the definition is clearly non-exhaustive. If implemented, it will be interesting to see what comes to be generally recognized as green infrastructure and what types of policies municipalities develop to encourage the use of it.

RESILIENT COMMUNITIES

“Resilient” is a word that does not appear at all in the existing PPS, but appears six times in the draft PPS. The word is not specifically defined in the draft PPS, so I assume the conventional meaning is intended, i.e., being able to withstand or recover from some adverse condition.

  • “Resilient” is used in the draft PPS primarily to modify the words “communities” and “development”, as in:
  • “sustainable and resilient communities”
  • “resilient development and land use patterns”
  • “efficient and resilient communities”
  • “liveable and resilient communities”

Of course the question this raises is: What is it that communities and development are to be resilient against?

Part IV: Vision for Ontario’s Land Use Planning System of the draft PPS appears to answer the question with this statement:

Strong, liveable and healthy communities promote and enhance human health and social well-being, are economically and environmentally sound, and are resilient to climate change.

If adopted in their current form, the draft PPS policies would make climate change resiliency an indicator of good land use planning and a characteristic good development. As with green infrastructure, it will be interesting to see what would become generally recognized as “resilient communities” and “resilient development” and also what yardsticks will be developed to measure resilience.

ACTIVE TRANSPORTATION

Another new defined term in the draft PPS is active transportation:

Active transportation: means human-powered travel, including but not limited to, walking, cycling, inline skating and travel with the use of mobility aids, including motorised wheelchairs and other power-assisted devices moving at a comparable speed.

The general policy direction in the draft PPS is to promote and increase the use of active transportation, but there is no specific direction to set targets or otherwise set benchmarks for how this is to be done.

The addition of the term would not appear to present a marked policy shift, so much as an effort to clarify of what was intended by a mishmash of terminology in the existing PPS, such as “alternative transportation modes”, “pedestrian mobility and other forms of travel”, “other alternative transportation”, and “pedestrian and non motorized movement”.

COMMENTING AGENCIES

If you are interested in further reading on the draft PPS policies, many commenting agencies have posted their comments online including submissions from:

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

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

Print This Article

Corporate Commercial – Real Estate – David Sunday

When a landlord’s commercial premises are up for lease and the leasing broker locates an interested tenant, it is quite common for the prospective landlord and tenant to sign an agreement to lease as a first step towards putting in place a final lease agreement.

While an agreement to lease is no substitute for a final lease, it is important for prospective landlords and tenants to understand that signing an agreement to lease often has the same legal effect as signing a final lease itself.

Ontario’s Courts have said that, to be valid and enforceable, an agreement to lease must show the parties, give a description of the premises, set out the commencement and duration of the term, the rent, and all the material terms of the contract that are not just incidental to the relationship of landlord and tenant.  If these requirements are met, then an agreement to lease may be legally enforced, even though the parties did not ultimately agree on the final form of lease.

If the requirements for a binding agreement to lease are not met, then an agreement to lease will usually only be considered an “agreement to agree” or an “agreement to negotiate”.  In law, such “agreements to agree” are not generally treated as legally enforceable contracts.  However, even an agreement to agree may have enforceable provisions with respect to certain matters, such as forfeiture of deposit monies, and the entering into of an agreement to lease may trigger broker commission obligations.

Often agreements to lease contain a clause that says that the tenant will accept the landlord’s standard form of lease when presented subject only to minor modifications to make it consistent with the terms of the agreement to lease.  It is one thing to have such a clause included when the landlord’s standard form of lease is available to the tenant and reviewed before the tenant signs the agreement to lease, but potentially unfair to the prospective tenant if the landlord’s standard form of lease is not provided to the tenant until after the agreement to lease is signed.  Notwithstanding the potential unfairness, the Court’s will enforce such agreements to lease if the legal requirements set out above are met.

To avoid problems, parties to an agreement to lease should always ensure that:

  • the agreement to lease is clearly drafted and fully understood by both parties;
  • the agreement to lease clearly states whether it is intended to be a binding agreement to lease or non-binding in nature;
  • the agreement to lease clearly sets out the rights of the parties insofar as preparation and acceptance of the final lease agreement is concerned;
  • the agreement to lease clearly sets out what happens in the event the parties fail to agree upon a final form of lease (e.g., Are parties entitled to walk away? Are deposit monies forfeited?); and
  • any conditions included in the agreement to lease with respect to lawyer approval are clearly drafted, reflect realistic timelines, and confer sufficient rights as to allow for meaningful lawyer review and comment.

Before signing any agreement to lease, landlords and tenants should ensure that their interests are fully protected and should ask themselves if they could abide by the terms of the agreement if it were legally enforced even in the absence of a separate finalized lease agreement.

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

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

Print This Article

Real Estate – David Sunday 

Ontario has commenced a formal review of the Condominium Act.  Although the review is still underway, the review panel has issued a first recommendation to require condominium managers to hold certain mandatory qualifications.

The Ministry of Consumer Services has already endorsed this early recommendation, due to its relatively broad support across most stakeholder groups, including from the Association of Condominium Managers of Ontario.

Property managers across Ontario and Waterloo Region will want to monitor this development and ensure that they are ready when mandatory qualifications become a reality.

The Stage Two Condominium Act Review report is expected to be available for public comment by the end of summer 2013. Expect it to provide further detailed recommendations with respect to the types of mandatory qualifications that are likely to be required for condominium managers at some time in the future.  You can watch for the report online at:

http://www.sse.gov.on.ca/mcs/en/Pages/condo_rev.aspx

* * 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.

 

Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<dsunday@sorbaralaw.com>.

Print This Article

Litigation – Steven Kenney

Winter has arrived and with it, snow and ice.  Slips and falls as a result of snow and ice are common and caution should be taken to avoid taking such a spill.  However, should you find yourself injured from a slip and fall, it is important to know what to do.

We recommend the following important steps:

  1. Record the location of the fall, particularly whether it occurred on private or public property. There are specific notices and very short time frames that must be followed if public or municipal property is involved.
  2. Record and keep the footwear worn at the time of the incident. Do not clean the shoes or boots, but store them in a safe place.
  3. Record the weather and other conditions. For example, was the walkway icy or snow covered, muddy, broken or in need of repair, or is there a hidden step?
  4. Record how the fall occurred. What were you doing? Where were you going? What happened?
  5. Record the names and addresses of witnesses to the fall.
  6. At the time of the fall, did you talk to anyone who had some sort of control over the property? (i.e. property owner, store manager, parking lot attendant)
  7. Record the names of any hospitals or treatment centres attended.
  8. Record the types of injuries and any treatment received.
  9. If possible, take photographs of the location, and date the photos.
  10. Contact a lawyer promptly to convey this information and determine your rights.

Likewise, even where care is taken to clear ice and snow from driveways, sidewalks and walkways, the winter season also comes with the risk that someone will slip and fall on your property. If someone has notified you that they have slipped and fallen on your property, these steps are important to follow:

  1. Take photographs of the location, and date them.
  2. Record the person’s name and address. Do the same for any witnesses.
  3. Summarize any information provided to you concerning how the fall occurred. If you were a witness to the incident, write a detailed statement describing what happened, and where and how it happened. Be sure to include any important details. Was the person drinking or drunk? Was the person walking, running or using a digital device (phone)? Was the person paying attention? What was the person’s footwear?
  4. Record the state of the walkway. Had you salted or placed sand prior to the incident? Had you cleared snow/debris?
  5. Record any injuries.
  6. Notify your insurance broker or property insurance company of a potential claim. It is difficult to know whether an individual will commence a claim for compensation. Injuries may appear to be minor at the time of the incident, but circumstances may change the status to serious or severe later. Some insurance companies appreciate the early warning and will send an adjuster to investigate immediately. Others may wait until you are given notice of a lawsuit.
  7. Contact a lawyer promptly to convey this information and determine your potential liability.

Often, notice of a lawsuit does not occur for many months or more. Thus, it is important to record details promptly, as your memory may fade with time. Most importantly, don’t panic if you receive notice of a lawsuit, but do contact your insurance company quickly to ensure that a response to the claim is prepared in the required time period.

Should you have any questions about your rights or liabilities with respect to slips and falls, please feel free to contact a member of our litigation group.

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

 

Author: Steven Kenney is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. Steven may be reached at (519) 741-8010 or <skenney@sorbaralaw.com>.   

Print This Article


1 5 6 7 8 9
WEBSITE © SORBARALAW