President's Report - Hamilton Law Association
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The Hamilton Law Association
HLA JOURNAL
Vol. 31 • Issue 4 August 2021
President’s Report
Our AGM was held on May 27,
Andrew Confente
2021. I would like to thank Treasurer
Teresa Donnelly for attending and
providing greetings on behalf of
the Law Society of Ontario. The
event would not have been a success
without the hard work and planning
that went on behind the scenes. This
was our second virtual AGM, and we
are all hoping that next year we can
gather at the Hamilton Club and enjoy
one of the great events of the year.
In my first month as your President, I
have attended a number of events as
“To reach a port, we must sail. Great Depression, a time when the your representative. On May 13th,
Sail, not tie anchor. Sail, not drift.” very fabric of society had come apart, I attended the FOLA virtual Spring
- President Franklin D. Roosevelt. but when optimism started to become Plenary with Rebecca Bentham.
A
a reality. We also have every reason Speakers included Treasurer Donnelly,
s I write my second report, to be optimistic. Summer has arrived, Johanne Blenkin, Chair of LiRN,
this quote resonates, as we vaccinations are readily available, Attorney General Doug Downey,
are still faced with uncertainty lockdown measures are being lifted, and Dan Pinnington and Ray Leclair
on our journey as a society and as and who could have predicted that from LawPro. FOLA updated those
members of the legal profession. This the Montreal Canadiens would be in attendance regarding efforts being
quote was made during the end of the playing in the Stanley Cup finals! made to address issues relevant to the
profession such as the library funding
We have also been reminded in the
In This Issue past few weeks that, notwithstanding
cuts that we have incurred. Every
association in the province had a
progress in the fight against the virus,
representative present. On June 17th,
there are many issues that predate the
President’s Report......................................... 1 the Advocates Society End of Term
When Professions Collide.............................4 pandemic that still need to be addressed.
virtual meeting was held. The Society
Personal Injury News....................................8 The recent news of the discovery
welcomed its new President, Deborah
Family Law Update.....................................10 of burial sites at former Residential
Palter, and a number of awards were
Corporate Commercial News......................12 School locations have reminded us of
Estates Law News ......................................14 handed out. The guest speaker was
a tragic aspect of Canadian history.
Real Estate Law News................................16 The Honourable Justice Cote of
We must always remember the victims
Major Legislative Amendments Part 2........18
New Lawyers’ Update ................................22
and that we, as a profession, must
Criminal Law News ...................................26 strive in our efforts toward truth and
History Update ...........................................32 reconciliation. On behalf of the HLA,
Executive Director’s Report........................34 I express our deepest sympathies continued on page 3
Librarian’s Report........................................36 to the families and all Indigenous
Classifieds....................................................38 Peoples affected by this tragedy.
Calendar of Events .....................................39
DINING - MEDIATIONS - BUSINESS MEETINGS - RECEPTIONS - SPECIAL EVENTS
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functions. Whether you require a single room or a suite of rooms, a casual
lunch or a formal dinner, let our staff handle all the details.
Email Vanessa Ciccarelli, our Food & Beverage Manager, vanessa@thehamiltonclub.com,
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w
Since 1873, The Hamilton Club has been a home away from home for the city’s business
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has, adding exceptional amenities and services to suit the changing needs of our Members.
6 Main St. E. Hamilton, ON. L8N 1E8 905.522.4675 thehamiltonclub.com
2 HLA Journal
August 2021
HLA Journal
The Hamilton Law Association exists to the Supreme Court of Canada, who We are open to all suggestions
enable its members to become successful, discussed her past experiences and as to how we, as an Association,
respected and fulfilled in their profession.
presiding as a Supreme Court Justice. can better assist the membership.
The Hamilton Law Association 2021-2022
I attended The Lawyers Legacy for
PRESIDENT - Andrew Confente Children - The Ray Harris Fund The HLA recognizes that the
VICE PRESIDENT - David van der Woerd meeting on June 24th and received a pandemic has transformed how we
SECRETARY-TREASURER - number of very worthy requests for practice law. We also have to be
Hussein Hamdani
funding. The committee decided to cognizant that other professions have
donate $10,000 to the Munar Learning also experienced a change on how
TRUSTEES
Centre to assist youth in downtown and the type of services they deliver.
Kathleen Bingham, Li Cheng,
Jennifer Cooper, Laura Dickson, Hamilton who have experienced We as members of the HLA also
Mary Grosso, Andrew Keesmaat, learning gaps during the pandemic. I have to be vigilant in protecting our
Paul Lawson, Eric Nanayakkara, would like to thank all the committee interests. Due to concerns regarding
Colleen Yamashita the encroachment of large accounting
members, and particularly, Dermot
MANAGING EDITOR - Rebecca Bentham Nolan for his ongoing involvement firms offering legal services to
EDITOR - Nicole Strandholm since the Fund’s inception. I had their clientele, a subcommittee was
COPY EDITOR - Wendy Spearing established to address this issue. I
ACCOUNTS RECEIVABLE - the honour of representing the HLA
Nicole Strandholm at the virtual swearing in of His encourage you all to read the article
LAYOUT & DESIGN - Nicole Strandholm Worship Justice of the Peace Andres “When Professions Collide” in this
ADVERTISING MANAGER -
on July 6th. His Worship was, for edition of our HLA Journal. I would
Nicole Strandholm
a number of years, a Provincial like to thank Rebecca Jeffery, David
HLA JOURNAL ARTICLE SUBMISSION
POLICY IN PART Prosecutor in Hamilton and Kitchener. van der Woerd, and Hussein Hamdani
We welcome and congratulate for their work on the subcommittee.
The Hamilton Law Association Journal is
primarily a volunteer written publication, His Worship on his appointment.
including contributions by Hamilton Law As- I would also like to take this
sociation members and staff, published bi- On June 16 , the trustees attended a
th opportunity to congratulate all the
monthly, primarily for the benefit of lawyers
Strategic Planning Discussion. This recent calls to the Bar and wish them
within the municipal boundaries of the city of
Hamilton. As a volunteer written publication, session was scheduled for next year the best on their new careers. Wishing
the patience and flexibility of all writers and but, due to the many issues the HLA you all an enjoyable summer and let’s
readers is greatly appreciated.
will have to address in the coming year, continue to be optimistic; just look
Any opinions or views published in the HLA a decision was made to hold a special back at where we were one year ago. n
Journal are those of the contributor and not
necessarily the opinions or views of the session. I would like to thank our
Association or the Managing Editor, and speakers, Bencher Andrew Spurgeon
neither the Association nor the Managing on behalf of the Law Society, Allen
Editor accepts responsibility for them. The
Managing Editor reserves the right to pub- Wynperle on behalf of FOLA, and
lish or not. The Managing Editor may refer Andrew Keesmaat representing the
issues including the decision of whether to Ontario Bar Association. The meeting
publish or not publish articles to the Presi-
dent of the HLA or the Board of Trustees. was very beneficial in addressing
Copyright for articles published in the HLA
priorities and the direction we will
Journal remains with the authors of the indi- be pursuing in the coming year.
vidual articles, and as such, written requests
for permission to reproduce any articles, in As we are reopening society, the HLA
whole or in part, should be directed to the
author.
has set priorities as to how we will
respond. The library has and continues
The Article Submission Policy is
currently under review. to remain open. When permitted,
Opportunity will be provided to all members we plan on resuming in-person CPD
for comment. events, as we recognize that these
Publication of any advertisement should not events also serve a social purpose,
be deemed an endorsement of the products
or services advertised.
bringing members of the Association Canadian Publications Mail Agreement
together. On the top of the agenda #40036029
CONTRIBUTION DEADLINE FOR NEXT is to schedule a number of in-person Return Undeliverable Canadian
ISSUE: September 8, 2021
social events once we are given the Addresses to:
The HLA Journal, published six times a year, is distributed green light. Our first event will be 45 Main Street East, Suite 500
free to members. An annual subscription for others is
held on behalf of our new lawyers. Hamilton, Ontario L8N 2B7
$30.00 plus H.S.T.
E-mail hla@hamiltonlaw.on.ca
ISSN 1188-4827
HLA Journal 3
When Professions company, in the larger market. In
practice, SWOT can eliminate the
Collide chances of failure, by understand-
ing what your business is lacking
and eliminate hazards that would
otherwise catch you unaware.
Rebecca Jeffery, on behalf of the Chairs of the
Corporate/Commercial, and Estates & Trusts
Committees Applying the SWOT analysis to
law firms is a useful tool, especial-
ly since the legal profession is no-
toriously slow to embrace change
amid a climate that demands it. As
a general rule, it is beneficial to re-
view the external factors (both the
L
opportunities and threats) in the le-
aw firms today are facing be internal factors - things that a gal market, in order to internally re-
unprecedented challenges company would have control over view and monopolize the strengths,
that require immediate at- and can change; opportunities and while improving the weaknesses.
tention and adaptation. First, tech- threats are external factors – things
nology is having an increasing im- that are happening outside the
pact. COVID-19 has proven that
the law must be quick to adapt to
a climate that demands alternative
methods of practicing law outside WHITTEN & FAMULA MEDIATIONS
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consists of a shorter timeframe streamlining submissions of essential and frank discussions with
becoming increasingly price con- experienced jurist and counsel.
scious and are demanding leaner
firm structures. However, most no-
tably and perhaps, just as concern-
ing, are the new competitors emerg-
ing to take a piece of the market.
If you happen to have a marketing
or business background, you may Honourable Alan C. R. Whitten, BA, LLB, LLM Paul F. Famula, BA, LLB, LLM
be familiar with the SWOT analy- Retired Superior Court Justice of Ontario,
Deputy Judge to Yukon and Nunavut Courts.
Insurance law counsel for over
25 years and administrative tribunal member
sis. SWOT stands for: strengths,
Jurist for over 22 years. experience.
weaknesses, opportunities, and Areas of expertise: Family Law including
custody, support & division of property, Estates,
Areas of expertise: Personal injury including
automobile and slip and falls, Insurance
threats, and so, it is a technique Personal Injury Claims, Contractual & Business
Disputes, Negligence Claims, Wrongful Arrest &
Disputes, CGL claims, Subrogation Claims,
Coverage Disputes, E&O Claims,
for analysing these four aspects of Imprisonment, Wrongful Dismissal. Property Claims.
your business. Essentially, SWOT �� 905-536-7747 �� 905-616-0216
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is used to evaluate a company’s Bookings are available immediately.
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velop strategic planning. While Both Alan & Paul are bilingual and are members of the OBA ADR section. Zoom hearings are
conducted through the OBA RAM concierge services.
strengths and weaknesses would
4 HLA Journal
August 2021
Here, we focus on assessing how
accounting firm competition is
Welcome Adam & Lyndsay
displacing the marketplace by
asking the questions: how do ac-
We are delighted that Adam Huff and
counting firms impact the legal Lyndsay Butlin have joined George
marketplace? What risks does that Street Law Group’s litigation team.
pose to the legal profession? And
what can law firms do about it?
Accounting firms, financial insti-
tutions and the legal marketplace
A few years back, the impact came
from the Big Four accounting net-
works (Deloitte, EY, KPMG and
PwC), by enhancing their revenue
with legal divisions. The Big Four
already have a combined annual
revenue of $120 billion, which ex- At GSL, Adam and Lyndsay will
ceed the $89 billion generated by continue their employment,
the 100 largest law firms combined. commercial litigation, and
professional liability practice.
Today, law firms are not only dis-
placed by the Big Four, but by ac-
counting firms and financial insti- georgestreetlawgroup.com 10 George Street, Suite 200, Hamilton | 905.526.2111
tutions at large, which includes the
MNP’s, the BDO’s, the RBC’s and
the TD’s, alike. Accounting firms However, the most vulnerable to Risks in the legal profession
and financial institutions have the accounting firm invasion, are
been building up legal-service di- not the big Bay Street law firms, What seems perhaps just as con-
visions and creating a one-stop- but rather the small to mid-tier cerning to the legal profession, is
shop opportunity for clients that legal firms in markets like Hamil- not only the loss of business, but
would have previously been ser- ton. Small to mid-tier legal firms what the accountant and financial
viced by law firms. However, ac- have small profit margins, so invasion means for the Rules of
countants have assured that they while repetitive tasks are easy to Professional Conduct and the re-
do not want to compete with law standardize for the Big Four and sulting services provided to clients,
firms, and will instead focus on larger accounting firms or finan- namely: confidentiality, conflict
mid-tier, process-oriented work. cial institutions, small to mid-tier of interest and communication.
law firms cannot afford any loss
The focused approach also means of market share. Further, the pres-
Confidentiality
that accounting firms and finan- ence of financial institutions in
cial institutions are concentrat- the legal arena could have a direct
ing on practice areas that add to impact on access to justice, since Privilege attaches to a communi-
their existing services. These ar- the invasion will affect the viabil- cation between a client and a law-
eas are primarily: immigration, ity of sole practitioners, as well yer, which is made either for the
labour, compliance, commer- as small to mid-size law firms. purpose of enabling the lawyer
cial contracts, and due diligence.
HLA Journal 5
Conflict of Interest
Turnbull Resolutions
Secondly, the Rules of Profes-
Mediation | Arbitration | Med/Arb
sional Conduct outline that “con-
flict of interest” means the exis-
The Honourable James R.
tence of a substantial risk that a
Turnbull B.A., LLB., LLM., Q.Arb
lawyer’s loyalty to or representa-
48 years of legal and tion of a client would be materi-
judicial experience. ally and adversely affected by
Specializing in commercial, the lawyer’s own interest or the
construction, estate, lawyer’s duties to another client,
professional liability, insurance, a former client, or a third person.
medical malpractice disputes
and/or claims and family law
business disputes. Lawyers and accountants are
Virtual or In-Person bound and qualified by each regu-
hearings available. latory body (the Law Society of
Ontario and the Chartered Profes-
sional Accountant of Ontario). The
CONTACT JIM AT 905 928 2082 OR BY EMAIL AT question begs, does the integra-
jim@turnbullresolutions.ca tion of legal advice and account-
ing advice in a ‘one-stop-shop’
blur the line on ‘independent ad-
vice’, ultimately risking a conflict
to give, or the client to receive, a client were privileged. The Fed- of interest? If accounting firms
legal advice. However, commu- eral Court held that the documents are incentivised to refer its clients
nications between an accountant were not privileged. In the opin- to its in-house legal department,
and the client are not privileged. ion of one judge, solicitor-client and vice versa, is the client truly
privilege “is recognized because it receiving the best, independent
Communications between clients is necessary for the proper admin- and most cost-efficient advice?
and accountants are confidential, istration of justice” while confi-
but this confidentiality does not dentiality between accountants and
come with the same protection as their clients “is not founded upon a Communication
privilege. Client-accountant com- need to ensure an effective system
munications are available to do- of the administration of justice.” Finally, the idea that accounting
mestic and international law en- firms and financial institutions
forcement and regulatory agencies. operate separate and apart from
Canada draws a line at extending In light of this position, clients who law firms, provides a false sense
legal privilege to accountants based seek out services as full service ‘ac- of departure from the rules of so-
on wider community interests in counting firms’ may be confused licitation. These accounting firms
full disclosure in judicial proceed- about where such privilege ex- and financial institutions offer-
ings. In a 2003 case, in Tower v. tends. Accountants need to remain ing legal services, are still in fact
M.N.R. and BDO Dunwoody LLP, wary of the risk that, while their bound by the Rules of Professional
[2002] D.T.C. 7315 (F.C.T.D.), clients may consider the advice be- Conduct, namely Rule 7.2-6 and
rev’d 2003 FCA 307 the court was ing provided to be “legal” in nature 7.2-8: “Communications with a
asked to decide whether certain and therefore expect that privilege Represented Person” and “Com-
communications between BDO and applies, that may not be the case. munications with a Represented
6 HLA Journal
August 2021
Corporation or Organization.” mid-size law firms means collabo- tion, and conflict of interest. The
These rules mandate that if a per- rating with financial specialists as Hamilton Law Association invites
son, corporation or organization part of the law firm professional comments from is members. n
is represented by a legal practitio- team. This could provide one-
ner, a lawyer shall not, commu- stop-shop service for clients who Rebecca Jeffery is an associate at
nicate, approach or deal with the are looking for such opportunity. Ross & McBride LLP. She practices in
person, corporation or organiza- corporate commercial, charities/not
for profit, and is now welcoming cli-
tion, except through or with the It also important for affected law ents from the entertainment industry.
consent of the legal practitioner. firms to continue to invest in tech-
nology that would help stream-line Hussein Hamdani is the Chaitr of the
Some clients will not realize the is- repetitive tasks to improve pro- Coroporate /Commercial Subcommit-
sues raised by solicitation, especial- ductivity and overall efficiency. tee and can be reached at:
ly from a notable financial institu- It is also beneficial to remind cli-
tion or accounting firm. Clients may ents of the professional rules that SimpsonWigle Law LLP
easily be swayed to hire the solic- lawyers are bound by, and the 1 Hunter Street East, Suite 200
P.O. Box 990 Hamilton, ON
iting accounting firms or financial limits of solicitor-client privilege. L8N 3W1
institutions, without realizing the Phone: 905-528-8411 ext 336
impact of protecting their interests. Finally, it is no surprise that these Email: husseinh@simpsonwigle.com
small to mid-tier law firms have
What next? been the slowest to react, in the David van der Woerd is the Chair of
face of an ever-changing legal the Estates & Trusts Subcommittee
and can be reached at:
This brings us to our next ques- landscape. However, these law
tion, what can law firms do about firms not only provide process-
Ross & McBride LLP
the invasion of the marketplace? oriented work but are able to un- 1 King Street West, 10th Floor
This part of the analysis focuses on ravel complex legal issues. Per- P.O. Box 907 Hamilton, ON
reviewing the opportunities where haps, these law firms must now L8N 3P6
small to mid-size law firms can cast a broader net into emerging Phone: 905-526-9800
practices like technology in or- Email: dvanderwoerd@rossmcbride.
reap benefit, if leveraged correctly. com
der to monopolize these varying
Regulations have restricted the opportunities, where accounting
growth of accountants – to a de- firms have no interest to interfere.
gree. In the USA and Canada,
accountants cannot own and con- Note from the Hamilton Law
trol law firms. However, in On- Association
tario, accountants can collaborate
and share costs in such law firms. The Hamilton Law Association
The reasons for why Ontario al- and its members are alive to the
lows such collaboration, remains issues facing our legal practitio-
unanswered. That said, Ontario ners and its clients in the face of
lawyers concerned with this col- legal services being offered by
laboration, can put this question accounting firms and financial in-
to the Law Society of Ontario. stitutions. Namely, the presence
of the legal services offered by
At the same time, accountants accounting firms and financial in-
are a great resource for lawyers. stitutions impact the protection of
Thus, perhaps adding value to rights: confidentiality, communica-
HLA Journal 7
Personal Injury News logistics organization which cabs and
drivers of those cabs affiliate for the
purpose of organizing and attracting
Andrew Spurgeon
customers to the collective of approxi-
mately 850 cabs under its umbrella.
The Fund argued that the SPF 6
is a “motor vehicle liability pol-
icy” as defined in s. 1 of the In-
surance Act. That section says:
“motor vehicle liability policy”
means a policy or part of a policy
evidencing a contract insuring,
(a) the owner or driver
I
write this update just as the sum- It is a policy of insurance made avail- of an automobile, or
mer is getting under way. It is a able pursuant to s. 227 (in Part IX) of
(b) a person who is not the
beautiful day. I am at the cottage, the Insurance Act. It provides insur-
owner or driver thereof where
it is sunny, bright and warm. The lake ance coverage to people who may be
the automobile is being used
beckons. What am I doing? I am writ- held liable for losses caused by mo-
or operated by that person’s
ing this article about a fight between tor vehicles that they do not own or
employee or agent or any other
an insurance company and the Mo- drive. Beck does not own the cabs in
person on that person’s behalf,
tor Vehicle Claims Fund (the Fund) its fleet. It does not employ the driv-
as to who should pay SABS benefits ers of the cabs in its fleet. Beck is against liability arising out
to a victim of a hit and run pedes- essentially a marketing, dispatch and of bodily injury to or the
trian accident involving a taxi cab.1
The facts of the case were that a pe-
destrian was struck by a taxi cab in
Toronto. The injured person reported
that the taxi cab in the accident took WHEN IT COMES
off and that the taxi cab was a Beck
Taxi which was easily identifiable by TO FUTURE
its trademark orange and green colour
scheme. As well, the victim was able CARE ANALYSIS
to get an identification number of the
cab and reported it. Beck however AND COSTING,
denied that the specific cab identi-
fied was anywhere near the scene of EXPERIENCE
the accident at the time it occurred.
However, Beck failed to reveal which
of its cabs, if any, were in the vicin-
MATTERS.
ity of the accident at the material time.
CELEBR ATING OVER 20 YEARS
The injured person applied for SABS
which the Fund paid – but did not
think it should. The Fund which Contact us. We look forward
presumptively is responsible to pay to helping you make a difference
pursuant to s. 268 (2) 2 (iv) of the In- for your clients.
surance Act, sought to place that bur-
den upon Royal Sun Alliance (RSA)
1.866.314.7335 | cbafuturecare.com
which issued Beck an SPF 6 policy.
The SPF 6 is not a form of sunscreen.
8 HLA Journal
August 2021
death of a person or loss or
damage to property caused
by an automobile or the
use or operation thereof;
What’s your
number?
It is to be noted that the section is
silent on responsibility for pay-
ing SABS and is focused on li-
ability protection for the insured.
An initial arbitration award was made
in favour of the insurer, RSA. The
thrust of the decision was that the
SPF 6 is in essence a commercial
general liability policy. It is focused
on providing liability coverage for
vicarious liability for businesses in
circumstances where non-employees You’ve got investments. But do you have a plan?
of the business, driving vehicles not A well-planned retirement is more than a number.
owned by the business cause injury
to others. The arbitrator specifi- Call or email me today.
cally concluded that the obligation to Nathaniel Rosenkrantz, B. Comm., CFP®
pay SABS was not part of the scope
Certified Financial Planner TM
of coverage provided in the SPF 6.
nathaniel.rosenkrantz@f55f.com
This decision was upheld by Myers J. 905-662-2424, ext. 300
on appeal as he in his conclusion stated:
“The issue then is one of law or Plan Well.
mixed fact and law. I see no error,
let alone a palpable or overriding
Retire Confidently.
error, in the Arbitrator’s decision
that there was no evidence that
Beck Taxis are driven by employ- Andrew J. Spurgeon is a partner at Endnotes
ees, agents, or on behalf of Beck. Ross and McBride LLP. He is also an
This is not a question that turns Elected
66-6153 Bencher
- Rosenkrantz_ of - Custom
Nathaniel the LawQP2_V2Society
0121.indd 1 1 HMQ as represented by the Min-
2021-01-19 4:18 PM
on the identification of any indi- of Ontario, and the Chairman of the ister of Government and Con-
vidual driver. It is simply a recog- Board of Directors LawPRO, which sumer Services (Motor Vehicle
nition that an SPF 6 CGL endorse- is the sole insurance company provid- Accident Claims Fund) v. Royal
ment insurance is not a species ing primary liability coverage to all & Sun Alliance Insurance Com-
of motor vehicle liability policy 28,000 lawyers in private practice in pany of Canada, 2021 ONSC 3922
that are intended to carry SABS Ontario.
under the statutory scheme.”
He can be reached at:
So, the take-away from this case is that Ross & McBride LLP
if a pedestrian is hit by an unidentified 1 King St W, Hamilton, ON
cab or other unidentified commercial L8P 1A4
vehicle, don’t be surprised that if you Tel: 905-572-5810
cannot identify the vehicle beyond its Email: aspurgeon@rossmcbride.com
brand that the FUND is the source of
the injured party’s SABS payments. n
HLA Journal 9
Family Law Update sure a just result in light of fluc-
tuations in the payor’s income.
In this regard, the Court noted that dis-
Michaela Newman closure is the “linchpin” upon which
fair support depends. The relevant le-
gal tests must encourage the timely ex-
change of information. Accordingly,
full and frank disclosure of income by
the payor lies at the foundation of the
child support regime and is also a pre-
condition to good faith negotiations.
F
or better or worse, the Supreme rears to approximately $41,000.00. As a first step, a payor seeking a down-
Court of Canada rarely wades in ward retroactive change must first
to apply their expertise to family On appeal, the Ontario Court of Appeal
overturned the motion judge’s decision show a material change in circum-
law matters. However, in June 2021, stances. Most commonly, in child sup-
Canada’s highest Court released its and mandated that the father pay the full
sum of arrears (nearly $170,000.00). port claims, the retroactive variation is
decision in Colucci v. Colucci (2021 based on a material change in the pay-
SCC 24) and established a (much or’s income. The payor is required to
needed) framework for determining Decision of the Supreme Court:
disclose sufficient “reliable evidence”
retroactive child support claims. This Fundamentally, Courts have a wide to determine when and how far their in-
article will serve as an overview of that discretion to vary child support or- come fell and to ascertain whether the
decision and the relevant factors in as- ders to ensure the correct amount change was significant, long-lasting,
sessing such claims moving forward. of support is being paid. In craft- and/or not one of the payor’s choosing.
Factual Background: ing these types of orders, the Court
is tasked with balancing three main Once a material change in circumstanc-
In Colucci, the parties had two chil- factors to achieve a fair result: es is established, a presumption arises
dren arising out of their 13-year rela- in favour of retroactively decreasing
tionship. Upon separation in 1996, the 1) the child’s interest in receiving child support to the date in which the
mother was granted sole custody of the appropriate amount of sup- payor gave the support recipient effec-
the two children and the father was or- port to which they are entitled; tive notice, and up to three years prior
dered to pay child support of $115.00 to the date of effective notice. It is not
2) the interest of the parties enough for a support payor to merely
per week until the children were no and the child in certain-
longer “children of the marriage”. In broach the subject of a reduction with
ty and predictability; and the recipient; clear communication
1998, two years after separation, the
father requested a reduction in his and accompanying disclosure of any
3) the need for flexibility to en- relevant documentation is required.
child support obligation but failed
to provide the necessary disclosure
to support such claim. No reduction
or amendment to child support was
made at this time. Flash forward: in
2012, the children ceased being “chil-
dren in the marriage” for support
purposes. The father commenced his
motion to change support four years
later, in 2016, after making no vol-
untary child support payments from
1998 to 2016. Only modest support
sums were collected through enforce-
ment mechanisms and the father’s
arrears totaled nearly $170,000.00
by 2016. The motion judge retro-
actively decreased the father’s ar-
10 HLA JournalAugust 2021
As applied to the facts in Colucci,
the Supreme Court upheld the Court
of Appeal’s decision and dismissed
the father’s appeal. At all stages,
the father’s communication was de-
ficient, evidence inadequate, and
PROVIDING EXPERT BUSINESS ADVICE disclosure insufficient. When con-
Accounting - Taxation - Business Advisory sidered collectively, these factors
were fatal to the father’s attempt
• Business Transition • Expert Witness Testimony to retroactive reduce his arrears.
• Business Valuation • Foreign or International Taxation
• Economic Loss Quantification • Income Replacement Benefits In particular, the father gave for-
• Estate & Trust Taxation • Tax Planning mal notice of his intentions in 2016;
the children had ceased being eli-
gible for child support in 2012. An
application of the three-year rule
would therefore preclude any retro-
active decrease. The application of
the D.B.S. factors also favoured the
non-reduction of retroactive support.
Burlington Office Hamilton Office The father failed to adduce adequate
5045 South Service Rd | 905.681.6900 570 Highland Road W | 905.525.9520 evidence regarding his financial cir-
cumstances, resulting in a failure to
djb.com discharge his onus that he was inca-
pable of paying now or in the future.
Court retains the discretion to depart Once a Court has determined that sup-
Colucci comes after the Supreme
from the presumptive date of retro- port should be retroactively decreased
Court’s decision in Michel v. Graydon
activity where the result would oth- and the appropriate date of the retro-
(2020 SCC 24), wherein the Court
erwise be unfair in the circumstances active adjustment, the support must
clarified the principles of D.B.S. and
of a particular case. This strikes the be quantified. The proper amount of
definitively confirmed that a recipi-
balance of allowing the Court to make support for each year since the proper
ent parent can apply to retroactively
adjustments and exceptions, when ap- date of retroactivity must be calculated
adjust an existing child support order
propriate, based on the individual and in accordance with the relevant statu-
after the child becomes an adult and is
unique characteristics of each case. tory schemes, including, but not lim-
no longer a “child of the marriage” for
ited to, the Child Support Guidelines.
Prior to Colucci, D.B.S. v. S.R.G. (2006 support purposes. Read collectively,
SCC 37) was the leading case on ret- In applications where the payor seeks the Court provides valued and useful
roactive support issues. The Court a rescission (a cancellation of arrears guidance for family law lawyers. n
relied on and adopted the four fac- that were properly determined using
tor test as set out in D.B.S. to suit the the method above), there is a presump- Michaela Newman obtained her
retroactive decrease analysis. These tion against rescinding any part of ar- Juris Doctor degree from Queen’s
factors are summarized as follows: rears which the payor must overcome. University in 2016, and was called to
The presumption can only be rebutted the Ontario Bar in 2017. Michaela is an
1. Whether the payor has an un- where the payor establishes that even Associate at Hughes and Cooper LLP.
derstandable reason for the de- with a flexible payment plan, he/she
lay in giving effective notice cannot and will not ever be able to pay She can be reached at:
or seeking relief in the courts; the full quantum of arrears. The only
relevant factor is the payor parent’s on- Hughes & Cooper LLP
2. The payor’s conduct; going ability to pay. The Court opined 109 – 111 Charles Street
that rescission of arrears “is a last re- Hamilton, Ontario
3. The circumstances of the child; L8P 3E4
sort in exceptional cases” to prevent
4. Hardship to the payor if the support payors from being encouraged Tel: (905) 523-5252
period of retroactivity is not to wait out their obligations or sub- Email: mnewman@hughescooper.ca
lengthened beyond the retro- vert statutory enforcement regimes.
active date.
HLA Journal 11Corporate Commercial
a “new” group that acquired control.
Suppose there are three trustees and the
News trust agreement provides for majority
rule. One would think that the replace-
John Loukidelis ment of one trustee would not trigger an
acquisition of control. The new trustee
could always be outvoted by the other
two so that the replacement should
not fundamentally affect how the trust
would act to control the corporation.
Changing one trustee out of three
likely entails an acquisition of control
The CRA thinks otherwise. It has stat-
ed that, absent evidence to the contrary
(including especially in the trust agree-
ment), three or more trustees of a trust
will be considered to form a group.
TRUSTS AND ACQUISITIONS pattern of acting together to control a
According to the CRA, the trustees of
OF CONTROL corporation. In Silicon Graphics Lim-
a trust must all act in the best interests
ited v R, 2002 FCA 260, the court
of the beneficiaries of the trust, and
Acquisitions of control are often stated that the “common connection”
this fiduciary duty is a sufficient “com-
unwanted might include “a voting agreement, an
mon connection” to constitute any
U
agreement to act in concert, or busi-
nder the Income Tax Act set of trustees a group.3 Accordingly,
ness or family relations.”2 The forego-
(Canada) (the “Act”),1 the even where the trustees act by major-
ing list is not exhaustive, of course,
acquisition of control of a ity rule, they will be treated as a group
and so, as the CRA’s loves to say, it
corporation can cause a number of so that any change in its composition
will be a question of fact whether a
unwanted consequences, including will result in an acquisition of con-
group exists in any particular case.
a deemed year-end and the restric- trol of a corporation controlled by the
tion or elimination of loss carry for- Trustees as a “group” trust. This position has been criticized
wards. Practitioners need to be aware by a number of commentators,4 but
that, according to the CRA, any re- The CRA, however, believes that the CRA’s position is long-standing.
placement of a trustee of a trust or the trustees of a trust will almost al-
ways constitute a “group”. This mat- Exceptions in the Act — new trustee
an estate can trigger an acquisition is a related person
of control unless one of a number of ters because the trustees of a trust
somewhat narrow exceptions applies. are treated as the shareholders of a
Subsection 256(7) contains a number
corporation when determining who
of exceptions that will deem control
Control by a “group” controls a corporation for tax purpos-
not to be acquired in certain circum-
es. As a result, the trustees of a trust
A “group” of persons can be consid- stances. Clauses 256(7)(a)(i)(A) and
will be treated as having voting con-
ered to control a corporation, and if (B), for example, provide that control
trol of a corporation where the trust
the composition of the group chang- of a corporation “shall be deemed not
holds shares that have the right to
es, a new group will be considered to have been acquired solely because
elect more than 50% of its directors.
to control the corporation. As a re- of the acquisition at any time of shares
sult, the new group, in general, will If the sole trustee of a controlling trust of any corporation” by a person who
acquire control of the corporation. is replaced by another person, then, acquired shares from a related per-
in general, the trust will be treated as son or by a person who was related
What constitutes a group is not always having acquired control of the corpo- to the corporation immediately be-
clear. A group is said to exist where ration. The same rule applies where the fore the time. This suggests that, if
“a sufficient common connection ex- controlling trust has two trustees and father, mother and son are trustees of
ists” among its members, which in- one trustee is replaced. The new set of a trust that controls a corporation, and
cludes a common link or interest or a trustees will be considered to constitute a daughter replaces father as a trustee
after he resigns, the trust will not ac-
12 HLA JournalAugust 2021
quire control of the corporation. On The difficulty is that the agreements He can be reached at:
the other hand, if an accountant who is governing most inter vivos trusts Loukidelis Professional Corporation
unrelated to the family replaces father, provide rather broad discretion to the 20 Hughson Street South, Suite 707
it seems there will be an acquisition of trustees to distribute income or capi- Hamilton ON L8N2A1
control, at least according to the CRA. tal. In fact, the grant of that kind of Tel: 289-799-9509
discretion is often part of the point Email: john@jltax.ca
Exceptions in the Act — change of of setting up a trust. Likewise, most https://cantaxes.ca/
trustee spousal trusts will provide for a power
to encroach on the capital of the trust. Endnotes
Paragraph 256(7)(i) provides that con- The CRA has said that such a power
trol of a corporation is deemed not to (such a discretion) in the terms of a
1
All statutory references are to the
be acquired solely because of a change spousal trust means that paragraph Act unless otherwise noted.
of trustee or legal representative, but 256(7)(i) can never apply to prevent
only if there is no change in beneficial an acquisition of control of a cor-
2
Silicon Graphics, at ¶36.
ownership of the trust property and no poration controlled by the trust. n
amount of income or capital of the trust
3
CRA technical interpretation 2004-
to be distributed, at any time at or after John Loukidelis restricts his practice 0087761E5 (May 24, 2005).
the change, in respect of any interest to income tax law. He provides tax
advice to business owners, account-
4
See, for example, Monaghan, K. A.
in the trust depends upon the exercise Siobhan. Taxation of Corporate Reor-
by any person or partnership, or the ants and other lawyers. John’s Tax
Court experience includes dealing ganizations. 2d ed. Toronto: Carswell,
failure of any person or partnership, 2012. Page 604.
to exercise any discretionary power. with complex tax litigation on behalf
of public and private corporations.
HLA Journal 13Estates Law News From an estate litigator’s perspective,
such commentary from the testator
Angela Papalia could support capacity, and would
definitely find its way into defending
the Will’s directions. Realistically, it
would likely also incite a few fights but
overall be easily relatable by the reader.
I appreciate that this could be an ad-
ministrative disaster having to chase
clients to complete their part, or be met
A Lost Art books, magazines and authors that I with contempt by those who only need
a simple Will for their blended fam-
T
follow or recommend are determined
he perception of a message by both their content and presentation. ily with corporate share holdings who
is derived from the delivery, don’t want to assume the cost; however,
not the content. Body lan- Could we translate these points into many of us have already pivoted some-
guage, tone and volume of voice, drafting Wills? what in this direction and I think that
hand gestures and facial expression there is benefit to continuing to do so.
leave more of an impression of the The initial reader may be the client,
speaker than the words do – no mat- but the eventual target audience is the Regardless of whether this can be
ter how profound. Smile and articu- beneficiaries or those who expect to worked into Wills or how it will
late well in a calm, confident manner be included. They see this stark legal resonate with traditionally standard
will leave you well received, whether document with words they don’t un- documents, effective communica-
presenting or in casual conversation. derstand. They expect to be included tion and written advocacy needs
only to find out that they are not or that infinite attention. I believe that it
Leaving a positive impression or in- it is an inequitable distribution – often is worth it… because it’s not what
voking an intended response in writ- without explanation or only a few sen- you say, rather how you say it. n
ten communication is more challeng- tences that say your sister helped more.
ing. Visual presentation arises again, Angela Papalia practices with Regen-
in addition to the language. Consider We could turn it back to the client to cy Law Group. She can be reached at:
what the page and content look like prepare directions to the beneficiaries
to the reader. Is it optically pleas- – those included, excluded, and the 5 Main Street West, Suite 2010
ing; is it prodigious or intimidating? potential stirpes – to be incorporated Hamilton,
L8P 1H1
ON
into the Will explaining reasons for
Communications that clearly lay the decision, possibly soften or re- Tel: 905-383-0500
out what the writer is requesting move the unnecessary legalese they Email:
apapalia@regencylawgroup.ca
are more likely to receive a quick- will find hereinafter they start reading?
er response addressing their needs.
Alternatively, if the communication
comes across as arrogant, condescend-
ing, has multiple paragraphs combined
into one, or contains infinite unneces-
sary content before the writer reaches
their point – the response is more
likely to be less effective or efficient. 21 King Street West, 11th Floor, Hamilton Ontario, L8P 4W7. 905.527.6877. Fax 905.527.4736
It would likely also cause the reader to • Over 25 years of experience handling civil litigation disputes
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14 HLA JournalAugust 2021
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HLA Journal 15Real Estate Law News In plain language, the limitation pe-
riod on mortgage enforcement ac-
Samantha Grilli tions is ten (10) years unless payment
is made by the debtor or written ac-
knowledgement is received by the
creditor from the debtor, in which
case the clock restarts. If neither of
those items occur, enforcement on
the mortgage will be statute barred.
Debts that are not secured by a mort-
gage or lien or where action has not
been taken to recover monies ow-
ing would preclude the RPLA from
applying and instead the two year
Limitation Periods for Mortgage en to the person entitled thereto limitation period under section 4 of
Enforcement or that person’s agent, and in the Limitations Act would apply.
T
such case no action shall be
he Real Property Limita- brought but within ten years af- To answer the second question, we
tions Act, R.S.O 1990, c. L.15 ter the payment or acknowledg- must look to case law. In the case
(“RPLA”) deals with limita- ment, or the last of the payments of Cioccio v Cioccio, the judge had
tion periods affecting real property. or acknowledgments if more to decide, firstly, whether a mort-
In this paper, I will examine the pro- than one, was made or given. gage placed on a matrimonial home
visions and case law dealing with was a demand mortgage or a con-
limitation periods for mortgage en-
forcement actions. There are two
questions one must consider when
dealing with limitation periods for
mortgage enforcement – 1. How long
is the limitation period? and 2. When
does the limitation period start to run?
Proposals • Bankruptcy • Receiverships • Consulting
To answer the first ques-
tion we look to section 23(1) of A new financial
the RPLA. That section states:
beginning starts here...
No action shall be brought to
recover out of any land or rent
any sum of money secured by
any mortgage or lien, or other-
wise charged upon or payable
Ensure your
out of the land or rent, or to re- clients have
cover any legacy, whether it is Peace of Mind.
or is not charged upon land, but
within ten years next after a pres-
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BA, CIRP, LIT CPA, CA, CIRP, LIT
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16 HLA JournalAugust 2021
Samantha received her Juris Doc-
ventional mortgage and secondly, the mortgage covenant or a stand- tor from the University of Windsor
when the limitation period began to along guarantee as “it would create
in 2014 and was called to the On-
run on the enforcement of said mort- an awkward distinction between the
tario Bar in 2015. Prior to that, she
gage. The first issue was easily re- limitation period to enforce a mort-
attended Wilfrid Laurier University
solved and it was held that the mort- gage and the limitation period to en-
gage was a conventional mortgage. force a closely related promise to pay where she graduated with an Hon-
the debt secured by the mortgage.” ours Bachelor of Arts.
To answer the second question, the
judge looked at section 23(1) of When acting for lenders, real es- Endnotes
the RPLA as well as the case of Al- tate lawyers should be reminding
ter v Csontos which held that the their clients of the limitation pe- 1 https://www.wagnersidlofsky.com/
limitation period starts running riod and requirements for extending invitation-from-the-court-of-appeal
at the execution of the mortgage them and/or diarizing the dates as 2 2005 CanLII 8735 (ON SC)
and not on demand for payment. a best practice to avoid liability. n 3Ibid para 12.
4 Ibid para 13.
Finally, it is worth noting, that the Samantha focuses on corporate and 5 Hilson v 1336365 Alberta Ltd.,
limitation period set out by the RPLA commercial law, residential and com-
2019 ONCA 1000 at para 28.
also applies to guarantees, whether mercial real estate, wills and estate
or not they form part of the mortgage planning and is a member of The
covenant. The Court of Appeal in Hamilton Law Association and Ham-
Hilson v 1336365 Alberta Ltd. found ilton Chamber of Commerce.
that the limitation period applies to
guarantees whether they are part of
HLA Journal 17Major Legislative Amendments of 2021
Part 2 - Corporate and Commercial, Employment, and
the Practice of Law
Submitted by the Articling Students at Scarfone Hawkins - Laura Bruce, Nassira El Hadri, Katie McGurk & Victoria Delle Donne
CORPORATE AND COMMERCIAL
Business Corporations Act, Director Residency Requirement Repealed
R.S.O. 1990, c. B.16 ● The amendments repeal the requirement that at least 25% of directors must be Canadian residents (s. 5(5)).
CIF – On a day to be named Approval of Written Ordinary Resolutions
by proclamation of the ● The amendments also lower the threshold of approval for written ordinary resolutions of privately held OBCA
Lieutenant Governor corporations from unanimity to holder(s) of a majority of shares entitled to vote on the resolution.
● This new default approval threshold will be subject to provisions in a corporation’s articles or unanimous
shareholders’ agreement (USA) that require greater than a simple majority of votes to pass an ordinary resolution, in
which case the higher threshold set out in the articles or USA would be the minimum level of approval for resolutions
in writing (s. 104(1)(c)).
● All voting shareholders who did not sign the resolutions must be given written notice of an ordinary resolution within
10 days after it is passed (s. 104(3)).
Not-for-Profit Corporations Automatic Continuation of Corporations
Act, 2010, S.O. 2010, c. 15 ● All existing corporations governed by the Ontario Corporations Act will automatically be continued under the Act.
● There is no need for corporations to take any action.
Not yet in force - expected to ● The former legislation (Corporations Act) will no longer apply to most non-share capital corporations incorporated
come into force January under it, except for certain transitional provisions.
2021
The Number of Directors Can Only be Changed by Articles of Amendment
● As soon as the Act comes into effect, it will no longer be possible to change the fixed number of directors provided
for in the Letters Patent, by-laws or special resolutions, except by Articles of Amendment.
● Currently, some corporations choose to increase or decrease the size of their boards yearly, and that practice will no
longer be possible until Articles of Amendment are filed under the ONCA to establish a minimum and maximum
number of directors.
● Corporations wishing to retain this flexibility will likely need to file Articles of Amendment following proclamation.
Most notably, when the Act comes into effect it will:
● Streamline the incorporation process for new not-for-profit corporations
● Set out the distinction between public benefit corporations and other not-for-profit corporations
● Permit a not-for-profit corporation to provide in its by-laws other means of voting (e.g. mail, telephone or electronic
means)
● Clarify that not-for-profit corporations can engage in commercial activities if the activities support the corporation’s
not-for-profit purposes
Bank of Canada Act R.S.C., The federal government has decided to remove legal tender status from some older bank notes as of January 1, 2021. This
1985, c. B-2 and change will affect the $1, $2, $25, $500 and $1,000 notes, which are no longer being produced. Essentially, this means that
Currency Act R.S.C., 1985, Canadians will no longer be able to use these older bank notes in transactions.
c. C-52
CIF - January 1, 2021
Proceeds of Crime (Money ● Dealers that qualify as money services businesses (virtual currencies - cryptocurrencies) will be required to register
Laundering) and Terrorist with FINTRAC and implement a complete AML compliance plan that is independently assessed.
Financing Act (S.C. 2000, c. ● FINTRAC will exercise flexibility in assessing and enforcing compliance with certain record keeping and reporting
17) obligations related to the amended Regulations. FINTRAC will expect reporting entities (REs) to continue submitting
reports in the same manner as they do currently, until the updates to the current reporting forms are implemented.
CIF - June 1, 2021
The flexible measures are as follows:
SOR/2019-240
● Use of current reporting forms and systems for Large Cash Transaction Reports (LCTRs), Electronic Funds Transfer
SOR/2020-112 Reports (EFTRs), Casino Disbursement Reports (CDRs) and Suspicious Transaction Reports (STRs):
○ REs are expected to continue submitting reports using the current reporting forms and systems while
FINTRAC updates its reporting forms. This additional time is to allow REs to update their processes and
systems in accordance with the amended Regulations. FINTRAC will continue to engage REs on the
development of the reporting forms.
○ REs will not be expected to aggregate and submit SWIFT and non-SWIFT transactions in one reporting
form until the updated EFT reporting forms are implemented.
● Aggregating multiple transactions based on the beneficiary for LCTRs and EFTRs (under the 24-hour rule)
○ The current LCTR and EFTR forms do not allow REs to aggregate information based on the beneficiary,
which are required under the amended Regulations. FINTRAC will expect REs to continue complying with
the reporting and record keeping obligations that are currently in force, in accordance with their current
policies and procedures, until updated reporting forms are implemented.
● Aggregating transactions of $10,000 or more with transactions of less than $10,000 for LCTRs, EFTRs and CDRs
(under the 24-hour rule):
○ FINTRAC's current LCTR, EFTR and CDR forms do not allow REs to submit a report that combine
aggregated transactions of less than $10,000 made within 24 consecutive hours that total $10,000 or more
with a transaction of $10,000 or more. Until the updated reporting forms are implemented, REs are
expected to continue aggregating according to the guidance published on the website.
○ More specifically, FINTRAC expects REs to continue submitting a report for each transaction of $10,000
or more (no 24-hour rule), and to submit a report of two or more transactions of less than $10,000 made
within 24 consecutive hours that total $10,000 or more (applying the 24-hour rule).
18 HLA JournalYou can also read
