FOLA Update: Closing Real Estate Transactions during a pandemic

Dear Real Estate Representatives, Association Presidents and Library Staff:

This is the third update this week, and I apologize for contributing to your email clog.  I have received over 1000 emails this week and I’m struggling to keep up myself, but I continue to receive calls and email from real estate lawyers looking for some guidance.

Here is what we know:

  1. Upcoming Law Society Webinar for Real Estate Lawyers

The Law Society is scheduling a free webinar for real estate lawyers for Friday, March 27 from 12:00pm to 2:00pm to address the issues that real estate lawyers are facing right now.  Keep your eye out for further details. 

  • There are no plans to shut down Teraview®

Several lawyers have reached out to let me know that their local Land Registry Office is closed.  Apparently some small LROs and some co-located within ServiceOntario centres have, in fact, closed. However, I have been advised that notwithstanding these closures, it is still business as usual for land registration and documents can continue to be registered via Teraview®.

If your local LRO is closed, you will not be able to register any paper documents (e.g. Registry Act documents, certain Land Titles documents that must be submitted in paper, plans, etc.). They cannot be submitted via OnLand or sent to another LRO.  Registration of paper documents in these LROs will not be accepted for registration or deposit until that LRO office reopens. 

If an LRO has closed, there is no access to ROSCO computer terminals, and full-size white prints of plans will not be available through the LRO or Teraview®.

If you have a paper deal in an LRO that is closed, you will need to explore workarounds (e.g. title insurance gap coverage, escrow agreement, postponement, etc.).

  • Banks remain open and mortgages are funding

There don’t seem to be any bank closures, and mortgages continue to be funding. I have been advised that certain branches will be closing – in Ottawa we’ve been told that only bank in each zone will remain open.  I don’t know how big a zone is, or how many zones there are, but I’m assuming that there will be delays in getting money to and from the bank if cheques or drafts are involved. 

  • Tarion acknowledges that unavoidable delays are likely

Builders are sending out delay notices to purchasers.  If you have upcoming purchases from a builder, check with your client to confirm if they have received a notice of delay.

Tarion issued an Advisory on Friday confirming that the builder repair period has been suspended until April 13, 2020, and that homeowners may refuse access and builders may refuse to perform after-sales services during the Covid-19 pandemic without penalty. All conciliations, inspections, common element meetings and other in-person meetings scheduled for the next month will also be postponed. The Tarion Advisory can be found here.

Tarion issued a further Advisory on March 16 regarding pre-delivery inspections and delayed closings, which can be found here and here.

  • Working remotely

Many lawyers and law firms are closing their offices and working remotely. My office gave all the lawyers and staff the option to work from home and equipped everyone with the tools to make this possible.  (My partner had the foresight to purchase 25 chromebooks two weeks ago and then had vpn software installed on each of them.)

This week, however, we closed the office entirely as a precautionary measure to safeguard the wellbeing of our lawyers and staff. It was a difficult decision, because most people cannot work as efficiently from home.  Fewer, smaller screens. No popping by a colleagues’ desk to ask a “quick” question. But it had to be done.

If you and/or your staff need to work remotely, here are some things to consider:

  1. Use technology to your advantage.

If the other lawyers and staff in your office have laptops, tablets or phones with cameras and microphones, consider video conferencing with them from time to time.

There are several good video conferencing applications that will allow you to connect and collaborate with your colleagues and staff. Video conferences can yield better results than phone calls. Some video conferencing technology allow you to share your screen, so that you can collaborate more effectively.  It can also make you feel less isolated.

You can also take advantage of text messaging or instant messaging to cut back on your email clog. 

Send as much as you can by email. I know, I’ve mentioned email clog twice already and now I’m suggesting more email. But it is practical. Just remember that email is not secure, so you may want to encrypt certain documents before emailing them (Word, Excel and most PDF programs have encryption by password built into them – it’s simple to do. Just don’t send the password in an email – call the recipient with the password). 

  1. Think about your accounting needs. 

My firm instituted a “wire transfer only” (or direct deposits for incoming funds) policy.  We wanted to cut back on the need for paper cheques for two reasons – one, if the firm had to close and operate remotely, cheques become more difficult since two partners need to sign all trust cheques; and two, electronic banking means fewer hands touching the money and spreading germs.  We set up a remote accounting office, within close proximity to two partners’ houses, so cheques can be printed, couriered to the partners for signature, and then sent to the recipient.  It will definitely take more time than when we are down the hall from one another, but it works for those times when we can’t wire funds into the recipient’s account.

If you don’t have the ability to wire directly from your desktop, speak to your bank about getting it.  It’s a game changer.  Unfortunately, it might take a while at this point, as banks are likely working with reduced staff and high volumes right now.

  1. Client meetings

Many law firms whose offices are still open are restricting access. Drop-ins are discouraged and client meetings are strictly by appointment only. 

If you are meeting with clients in person, lawyers and clients should follow health authority recommendations – don’t shake hands, sit as far apart as possible, disinfect the space regularly, etc.  When making the appointment and before meeting with them, ask your clients if they are experiencing any symptoms, if they have been in contact with someone who is sick, has tested positive for Covid-19 or if they are self-isolating for any reason.  If the answer is yes, consider the health and safety of you and your staff and determine if the meeting can be postponed or conducted remotely.

Some lawyers are having clients place documents on a table or counter rather than handing them to another person directly.  If your office has the technology, you can meet with clients remotely within your office.  The clients can be in one meeting room and the lawyer in other, meeting by video or telephone to review the documents.  The lawyer can go into the clients’ room to witness the signature from a healthy distance, and sign as witness or commission once the clients leave. 

If you are meeting with clients remotely, review the Law Society’s Corporate Statement on Covid-19 that includes information on remotely identifying and verifying identity of clients and virtually commissioning documents.  Be aware of your legal obligations and document your file well. Most title insurers are confirming coverage even for deals signed up remotely – check with your preferred title insurer for details.

You can also refer to the attached “Basic Approach for Remote Signing”, which includes a Video Conference Checklist.

  • Fraudsters love chaos

Be alert to fraud.  The bad guys take advantage of vulnerable people and vulnerable situations.  Keep your spidey senses on high alert. Some of the key red flags to watch out for are:

  1. last minute changes in payment instructions
  2. instructions to send funds to unrelated third parties
  3. rush deals with new clients
  4. the sale or refinance of mortgage-free or vacant land
  5. deals involving elderly or vulernable individuals or people who are not receiving a benefit from a refinance transaction
  6. emails offering a covid antidote
  • Off title search results may not be available

Some off-title search results may be delayed and may not be available in time for your closing. Check with your title insurer to confirm if coverage is available.  Understand what coverage will be available if the search result comes back following closing and reveals deficiencies. Communicate well with your client.

Be proactive. Be patient.  Responses will take longer as more and more people work remotely and offices have fewer people available due to illness, quarantine, self-isolation, or childcare issues. 

Deals will be more difficult to close.  But we are all in this together. Encourage compassion and reasonableness.  Consider how a court will be likely to respond to hardline responses to issues relating to or resulting from this pandemic.

Sid Troister sent out a great email bulletin yesterday, where he said “My unauthoritative advice is to make sure that when these decisions have to be made, you explain to your clients the options and implications fully, ensure sure that you have documented both the advice and options you gave your client and the instructions you received including sending them confirmation.  Make sure that advice to clients is in plain language.  You don’t want them saying that they did not understand because it was all too technical.  As I say, deals may be much harder to complete these days so you need to have a good record of the steps taken to protect yourself and in so doing, you will also be protecting your client.”

For more information from FOLA, please visit our COVID-19 webpage here.

Merredith MacLennan

FOLA Real Estate Co-Chair

Please note: The information provided herein is of a general nature only and is not intended to provide legal advice.

Important Update Regarding Ontario Court of Justice Critical Operations

March 20, 2020

Good morning: 

I am writing on behalf of Chief Justice Maisonneuve.

This communication is to advise of changes that the Ontario Court of Justice (OCJ) is immediately implementing to its ongoing critical operations as a result of COVID-19.

All family trials, criminal trials and preliminary inquiries between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise.  This applies to both in-custody and out-of-custody accused.

Although criminal and family courts remain open for urgent matters, consistent with public health advice, all steps are being taken to reduce in person appearances and to implement social distancing for matters that must proceed. Unless an urgent criminal or family court appearance is required in the Ontario Court of Justice between Friday March 20, 2020 and Friday May 29, 2020 the court is urging individuals not to attend court.

The Ministry of the Attorney General is working with the Court and other key justice stakeholders to implement significant audio and video technology capacity to further minimize in person contact for urgent matters that are proceeding.

The attached public notice (see below) provides more important information on the matters that will continue to proceed in the OCJ. This notice has been posted to the court’s website (https://www.ontariocourts.ca/ocj/). We invite you to share it with members of your organization and with other organizations as broadly as you wish.

James Schneider for OCJ Communications Officer

Update: COVID-19 Pandemic Planning – Scheduling of Criminal and Family Matters in the Ontario Court of Justice (as of March 20, 2020)

Please do not come into a courthouse if you have been advised by public health officials, your doctor or the Ontario Ministry of Health (MOH) website (https://www.ontario.ca/page/2019-novel-coronavirus) to self-isolate.

In response to the COVID-19 pandemic, the Ontario Court of Justice issued a directive on March 15, 2020, “COVID-19 Pandemic Planning for the Scheduling of Matters in the Ontario Court of Justice” to reduce the number of people who attend court for criminal, family and Provincial Offences Act matters. That directive has been revised and extended, as of March 20, 2020.

Unless you have an urgent criminal or an urgent family court appearance in the Ontario Court of Justice between Friday March 20, 2020 and Friday May 29, 2020 do not attend court.

All family trials, criminal trials and preliminary inquiries between Friday March 20, 2020 and Friday May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise. This applies to both in-custody and out-of-custody accused.

The Court is reducing the number of courtrooms that will operate. Judicial officials will remain available to preside over:

• regularly scheduled bail courts, remand and plea courts for in-custody proceedings;

• plea court for urgent out-of-custody matters;

• urgent family proceedings; • applications under the Health Protection and Promotion Act; and

• urgent and/or essential intake court functions.

For more details, please see COVID-19 Pandemic Planning – Scheduling of Criminal Matters in the Ontario Court of Justice (March 20, 2020) COVID-19 Pandemic Planning – Scheduling of Family Matters in the Ontario Court of Justice (March 20, 2020)

For information about the scheduling of Provincial Offences Act proceedings, please see Notice to Public regarding Provincial Offences Act Matters.

Important information regarding Legal Aid Ontario – Criminal

FOLA wishes to remind you and your members that Legal Aid Ontario is still up and running and is doing it’s best to serve Ontarians.  They are currently working with the courts and MAG to make online services available for all matters. 

In terms of coordinating the private bar to assist in providing remote services, they have in asked FOLA to direct those interested in accepting certificates to contact Sid Freeman sidfreeman@bell.net at the Criminal Law Association (CLA). 

Sid will need the following information from you:

  1. Your name, email address, and phone number
  2. Your city, region, and law association.

If you are assigned shifts, you will be paid hourly and will be provided with a special DCPO (duty counsel per diem number).   You MUST use the existing regular per diem sign-in sheets on sign in and upon exiting.  These sign in sheets will be available electronically – either as an attachment or through a portal. 

The CLA anticipates the Ontario Court of Justice will implement systems in short order to allow all lawyers to work remotely so we can safely work together while we battle COVID-19.  Once these systems are in place, they would like to be able to call on as many lawyers as possible to assist. 

Again, please send your contact information to Sid Freeman at sidfreeman@bell.net and she will assign you to your regional contact once remote capabilities are in place. 

Katie 


Katie W. Robinette

Executive Director

FOLA.ca

647-280-9340

Daily Update = FOLA & COVID-19

Attached are a few docs:

  1. Some have asked that our Daily updates be posted online.  Unfortunately, in an effort to get these out to you quickly, they are not really suitable for the website.  So I have endeavoured to provide a weekly Update that will, from now on, be circulated each Monday morning from now until the foreseeable future.  These can be found on our main COVID-19 page (direct link to this report is here) and I have attached the summary report from last week’s calls to this email.
  1. The Response Doc #1 from the SCJ that addresses issues shared by Law Association members.   As you’ll see, a number appear to be works-in-progress or cite info posted on the court site. Some have been referred to MAG and others to the LSO.  More Response Updates will be forthcoming but members are still encouraged to continue forwarding questions/issues related to the courts and/or anything related to their practice to me and they will be shared with our Rapid Response team. 
  1. Also attached is the summary of today’s call.  It’s short but sweet!  In today’s call summary, you’ll notice information about an announcement this morning by the Premier that notes a new portal for companies that offer commercially available e-solutions and platforms in an effort to widen the pool and expedite the process of procurement processes for online tools.  This applies to legal services.  If you know of a company that is offering outstanding legal services online that could help with any and all transactions, you are encouraged to reach out to that company and encourage them to fill out the forms. 
  1. An urgent reminder Notice with respect to attending at courthouses in person at this time along with other COVID-19.  It, too, is on our main COVID-19 website.

That’s all for now!  Happy Monday everyone!


Katie W. Robinette

Executive Director

FOLA.ca

647-280-9340

Ontario Protecting Critical Front-Line Justice Services in Response to COVID-19

Below please find a Statement from Christine Elliott, Deputy Premier and Minister of Health, and Doug Downey, Attorney General of Ontario. 

We would appreciate if you would forward this statement on to your members. 

  Statement Ontario Protecting Critical Front-Line Justice Services in Response to COVID-19 March 19, 2020 TORONTO — Today, Christine Elliott, Deputy Premier and Minister of Health, and Doug Downey, Attorney General, issued the following statement in response to COVID-19 and the government’s commitment to keep communities safe while continuing to hold offenders accountable: “The health and well-being of Ontarians is our government’s number one priority. This commitment extends across the vast network of justice partners and individuals who interact with the justice system on a daily basis. We are working around the clock with our partners to respond to this constantly evolving public health issue. Adjustments are being made throughout the justice system to minimize disruption and continue to provide seamless, responsive justice services to all Ontarians, particularly the most vulnerable members of our communities. Technology Solutions and Prioritizing Urgent Matters To sustain these efforts and to address health and safety concerns raised by legal service professionals, Ontario courts and tribunals are limiting in-person proceedings and making use of audio and video conferencing to hear priority matters remotely, where possible. Justice partners are working collaboratively to develop and deploy technology solutions and other innovative tools across the province to ensure urgent matters can be heard without needing to appear in person. This approach will also help to mitigate the potential impacts of possible service disruptions. Courts and tribunals are also deferring non-urgent matters until they can be managed safely and securely. Ontario’s judges and justices of the peace continue to prioritize critical matters such as criminal and child protection proceedings. There is strong collaboration across the system to ensure that urgent and priority legal matters continue to be heard before our courts and tribunals. All Tribunals Ontario in-person proceedings, including at the Local Planning Appeal Tribunal, Landlord and Tenant Board and Human Rights Tribunal of Ontario, are postponed and will be rescheduled at a later date. Where feasible, alternative hearing options such as written and telephone hearings will be considered. Front-line counter services will be closed until further notice. We are also working very closely with our partners and colleagues in Ontario’s court systems to ensure Ontarians can see justice done while also prioritizing the protection of public health in the province. The following actions have been taken across the justice system: The Superior Court of Justice has suspended all regular court operations until further notice, while continuing to hear urgent matters during this emergency period. All sittings of the Small Claims Court in Ontario are suspended until further notice.  The Ontario Court of Justice has established procedures to reduce the number of people who attend court in-person for criminal and family matters. All non-urgent matters have been adjourned. All Provincial Offences Act matters scheduled up to and including April 3, 2020 will be adjourned and rescheduled to a later date. Tickets, fines or other court business may be handled online.  The Court of Appeal has suspended all scheduled appeals until April 3, 2020. During this period, urgent appeals will be heard based on either the written materials or remotely. Keeping People Safe We are committed to ensuring Ontarians remain safe and secure during this challenging time and are looking at all tools to help individuals and families stay in their homes. As part of this approach, the Ministry of the Attorney General has applied for a court order to suspend the enforcement of eviction orders. Tribunals Ontario will not issue any new eviction orders until further notice. Sheriff’s offices have been asked to postpone any scheduled enforcement of eviction orders currently set for this week. We want to thank our partners at the Superior and Ontario Courts of Justice, Tribunals Ontario, and the front-line workers across our justice system who are working hard to keep everyone safe and healthy while maintaining the administration of justice in our province. Ontario takes the health and safety of court users, staff and the judiciary very seriously. As this public health situation evolves, the government is committed to providing Ontarians with safe and reliable access to critical front-line services, including supporting the delivery of justice at its courthouses and tribunals. We are closely monitoring developments and will continue to provide updates as the situation evolves.”       ADDITIONAL RESOURCES Visit Ontario’s website to learn more about how the province continues to protect Ontarians from COVID-19. Ontarians can file family, civil or small claims online Superior Court of Justice Ontario Court of Justice Tribunals Ontario’s new policy for hearings Legal Aid Ontario for information updates For more information about online tools and services for legal professionals, visit the Law Society of Ontario and LAWPRO.     CONTACTS Hayley Chazan
Minister’s Office, Press Secretary, Ministry of Health
416-726-9941

David Jensen
Communications Branch, Ministry of Health
416-314-6197

Jenessa Crognali
Minister’s Office
Jenessa.Crognali@ontario.ca Brian Gray
Communications Branch
416-326-2210

MAG-Media@ontario.ca Ministry of the Attorney General
http://www.ontario.ca/mag

Effective Immediately: Reduced Counter Services at St. Catharines and Welland courthouses

NOTICE TO THE PUBLIC – COUNTER SERVICES

The health and wellbeing of court occupants and all Ontarians who access the courthouse is a priority.

Do not come into the Courthouse in person if you have been advised by Public Health or your doctor or the Ontario Ministry of Health (MOH) website to self-isolate due to possible exposure to the coronavirus (COVID-19). 

All users of this courthouse are advised to consult the MOH website for the latest information on COVID-19 at: Ontario.ca/coronavirus

If you are experiencing COVID-19 symptoms or to determine whether you should isolate yourself or seek medical assistance, call Telehealth at 1-866-797-0000 or your local public health unit for assistance and direction, before attending the courthouse. 

COUNTER SERVICES

Effective March 18, 2020, and until further notice, counter services will be offered between 10:00 a.m. to 12:00 p.m. and from 2:00 p.m. to 4:00 p.m.  

ONLINE FILING

Please note that online filing is available for Small Claims Court, Civil, and Family Court matters. For more information, please visit:

https://www.ontario.ca/page/file-small-claims-online (Small Claims Court) 

https://www.ontario.ca/page/file-civil-claim-online (civil)

https://www.ontario.ca/page/file-divorce-application-online (family)

FAMILY MEDIATION AND INFORMATION SERVICES

All onsite family mediation and information services are being suspended until further notice.  Parties are encouraged to contact service providers to discuss services being offered remotely, including online or by phone. 

You may also be able to find information at:

Community Legal Education Ontario: cleo.on.ca

Steps to Justice: stepstojustice.ca

Legal Aid Ontario: legalaid.on.ca

LCLA Library staffing

Due to the Covid-19 situation, the Law Library will be unstaffed until further notice.  Staff will be working offsite, and may be reached via email at library@thelcla.ca.  Library staff will have access to Quicklaw, Practice Advisor, Wrongful Dismissal Database and Lawyers’ Daily, and will be able to assist with research. We will post any updates on the LCLA website.

Further information – Real Estate Transactions and Covid-19

INFORMATION FROM THE LAW SOCIETY OF ONTARIO CORPORATE STATEMENT RE: COVID-19

https://www.lso.ca/news-events/news/corporate-statement-re-covid-19


In the context of COVID-19, can a lawyer or paralegal use a virtual means of identifying or verifying the identity of a client such as video conferencing or telephone?
At this time, the client identification and verification requirements of By-Law 7.1 continue to apply. However:
• Lawyers and paralegals should review the information below as they do not need to verify the identity of their clients for all matters.
• If only client identification is required, lawyers and paralegals are able to comply with their professional obligations without meeting face-to-face or via video conference.
• As a result of COVID-19, until further notice, the Law Society will interpret the requirement that lawyers and paralegals verify the identity of their client face-to-face as not requiring the lawyer or paralegal to be in the physical presence of the client. Rather, alternative means of verification such as face-to-face verification via video conference will be permitted. If lawyers and paralegals choose to verify identity clients via video conference, they should attempt to manage some of the risks associated with this practice as outlined below.
Current Requirements: Because there is no obligation to meet with a client face-to-face to identify the client, lawyers and paralegals should
• Keep in mind the distinction between identifying and verifying the identity of a client:
Identifying the client means obtaining certain basic information about your client and any third party directing, instructing or who has the authority to direct or instruct your client, such as a name and address. You must obtain this information whenever you are retained to provide legal services to a client unless an exemption applies. This step can be done over the phone or by video conference. There is no requirement that it be completed face-to-face. Verifying the identity of a client means actually looking at an original identifying document from an independent source to ensure that your clients and any third parties are who they say they are. You are only required to verify the identity of your client and such third parties if you are involved in a funds transfer activity, that is, you engage in or instruct with respect to the payment, receipt or transfer of funds, and an exception does not apply.
• Assess whether verification of identity is required in the matter.
Verification of client identity occurs face-to-face unless
• The individual whose identity is being verified is present in Canada and an attestation from a commissioner of oaths or other guarantor is provided; or
• The individual whose identity is being verified is not present in Canada and verification is provided by an agent.
For more information, please review the Law Society’s Client Identification and Verification Requirements resources. For specific information about attestations or retaining an agent, please see Appendices 4, 5, 7, and 8. Managing the Risk of Face-to-Face Verification via Video Conference:
Where a lawyer or paralegal employs video conference as a means to conduct face-to-face verification of client identity instead of being in the physical presence of the client or by attestation or an agent, the following factors should be should be considered to help manage some of the risk:
• Consider whether there are any red flags associated with fraud or money laundering, attempt to mitigate risk, and determine if they should proceed.
o To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.
o Stay alert to the fact that persons may attempt to use situations like COVID-19 as an opportunity to commit fraud or other illegal acts and to be particularly vigilant for red flags of fraud or other illegal activities.
o Where virtual methods are chosen lawyers and paralegals must be particularly alert to these red flags to ensure they are not assisting in or being reckless in respect of any illegal activity.
o Lawyers and paralegals should document any red flags, what measures they have taken to mitigate that risk, and their decision on how they proceeded.
o If many red flags are present, lawyers and paralegals should consider whether they should proceed with the matter.
• Consider using another method of verifying identity that may reduce the risk of fraud or money laundering such as the dual process or credit file methods.
o For more information about these methods, review the Federation of Law Societies’ Guidance for the Legal Profession resource.
Can a lawyer or paralegal use virtual commissioning in the context of COVID-19?
Commissioning is governed by the Commissioners for Taking Affidavits Act and is not regulated by the Law Society. Although the law is evolving in this area, the best practice for commissioning documents remains for the lawyer or paralegal who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s).
For more information, please review the Law Society’s Virtual Commissioning resource.
However, as a result of COVID-19, until further notice:
• The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer or paralegal to be in the physical presence of the client.
• Rather, alternative means of commissioning such as commissioning via video conference will be permitted.
• If lawyers and paralegals choose to use virtual commissioning, they should attempt to manage some of the risks associated with this practice as outlined below.
Managing the Risk of Virtual Commissioning: If a lawyer or paralegal chooses to use virtual commissioning, the lawyer or paralegal should be alert to the risks of doing so, which may include the following issues:
• Fraud
• Identity theft
• Undue influence
• Duress
• Capacity
• Client left without copies of the documents executed remotely
• Client feels that they did not have an adequate opportunity to ask questions or request clarifying information about the documents they are executing.
To manage some of the risks:
• Consider whether there are red flags of fraud in the matter. To review these red flags, see the Federation of Law Societies’ Risk Advisories for the Legal Profession resource.
• Assess whether there is a risk that the client may be subject to undue influence or duress. If there is such a risk, consider if you are able to assist the client at this time without meeting in person.
• Determine how to provide the client with copies of the document executed remotely.
• Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference.
• Be alert to the fact that persons may attempt to use the current circumstances and resulting confusion as an opportunity to commit fraud or other illegal acts. Where lawyers and paralegals choose to use virtual commissioning, they must be particularly alert to these red flags in order to ensure that they are not assisting, or being reckless in respect of any illegal activity.

REAL ESTATE TRANSACTIONS AND COVID-19

Dear Real Estate Representatives, Association Presidents and Library Staff:

FOLA has been receiving calls from real estate lawyers wondering what to do about upcoming real estate closings in light of the unprecedented circumstances we are in.  Please forward this information to the real estate lawyers in your association.

Like you, we have been monitoring the situation very closely. The situation is fluid, with information and protocols changing rapidly.

Here is what we know:

  1. Land Registry Offices remaining open for now

As far as we know there are no plans to close the LROs. This may change if the Ministry of the Attorney General decides to close all of its spaces (the courts are suspended right now, but the courthouses are still open).  Like other businesses, the LROs may be working with reduced staff, and will likely prioritize services required for closings (over-rides, pre-approvals, PIN corrections, etc.).  The LRO office webpage can be found here.

  • Banks remaining open for now

All of the major banks have indicated an intention to remain open. Like other businesses, the banks may be working with reduced staff or locations and there may be delays in processing requests.

  • Tarion

Tarion issued an Advisory on Friday confirming that the builder repair period has been suspended until April 13, 2020, and that homeowners may refuse access and builders may refuse to perform after-sales services during the Covid-19 pandemic without penalty. All conciliations, inspections, common element meetings and other in-person meetings scheduled for the next month will also be postponed. The Tarion Advisory can be found here.

Tarion issued a further Advisory today regarding pre-deliver inspections and delayed closings, which can be found here and here.

“Unavoidable Delay” is defined in the Tarion Addendum as “an event which delays Closing which is a strike, fire, explosion, flood, act of God, civil insurrection, act of war, act of terrorism or pandemic, plus any period of delay directly caused by the event, which are beyond the reasonable control of the Vendor and are not caused by or contributed to by the fault of the Vendor”. The World Health Organization characterized Covid-19 as a pandemic on March 11, 2020, and accordingly, construction delays resulting directly from this pandemic may be considered unavoidable delays for the purposes of delayed closing compensation.

  • Client meetings

There may be issues with clients not being able to meet with lawyers (due to illness or self-isolation).  Remote meetings could be held (by phone or video conference) with undertakings to provide any required sworn documents at a later day.  If meetings do proceed, lawyers and clients should follow health authority recommendations – don’t shake hands, sit as far apart as possible, etc.

5.  Municipalities

There have been recommendations that people limit in-person interactions, work from home if possible, and not go out for ‘non-essential’ reasons.  It is now very possible that municipalities may close their offices or work with reduced staff and that delays in receiving compliance information, permits and municipal agreements may be experienced.  We have heard that some municipalities are suspending inspections, meaning that no occupancy permits will be issued for new construction.

What does this mean for your closings?

If either the LRO or the banks close, then real estate transactions will not be able to proceed.  You will need to seek extensions wherever possible.  The good news is that everyone is in the same situation.  The bad news is that there is no right in most re-sale agreements to insist on an extension.  You will have to rely on the goodness of others and common law principles to extend the transaction.

Some things to consider:

  1. If your clients are not able to meet with you in person to complete the transaction, are you able to meet with them remotely (by phone or video) to get the necessary documents signed? Will the other lawyer accept an undertaking to provide originally signed/commissioned documents as soon as possible?  Can you adequately verify the identity of your clients remotely? 
  • If your clients need an extension or are asked for an extension, advise your clients to exercise compassion and consider what a court would say if an extension is not granted.
  • If clients tell you they are sick or have travelled out of the country in the last two weeks, consider the health and safety of yourself and your staff and the possibility of rescheduling the meeting or making alternate arrangements for signing documents. 
  •  Consider whether funds can be wired or otherwise transferred electronically to reduce the amount of in-person interactions required.
  • If you are otherwise ready, willing and able to close, but are unable to register, is there GAP coverage available under a title insurance policy?
  • The Working Group on Lawyers and Real Estate have a “Lawyers’ Delayed Closing Escrow Agreement” available on its website here.
  • If the transaction is a new home from a builder, the Ontario New Home Warranties Plan Act will govern delays in occupancy or closing. 

For more information from FOLA, please visit our COVID-19 webpage here.

Regards,

Merredith MacLennan & Eldon Horner

FOLA Real Estate Co-Chairs

Notice to Profession RE: Central South Civil Matters during Covid-19 shut down

SUPERIOR COURT OF JUSTICE COUR SUPÉRIEURE DE JUSTICE
45 Main Street East Suite 721 Tel: (905) 645-5323
Hamilton, Ontario Fax: (905) 645-5374
L8N 2B7


NOTICE TO PROFESSION IN CENTRAL SOUTH REGION
From: Harrison S. Arrell
Regional Senior Justice – Superior Court of Justice
Central South Region
Date: March 16, 2020


As a result of COVID-19:

• All civil matters set for trial, long or short motions, civil pretrials, and/or trial scheduling court matters in March 2020 are automatically adjourned to June 2nd, 2020 at 10:00 a.m. to be spoken to.


• All civil matters set for trial, long or short motions, civil pretrials, and/or trial scheduling court matters in April 2020 are automatically adjourned to June 3rd, 2020 at 10:00 a.m. to be spoken to.


• All civil matters set for trial, long or short motions, civil pretrials, and/or trial scheduling court matters in May 2020 are automatically adjourned to June 4th, 2020 at 10:00 a.m. to be spoken to.


• All judicial telephone conference calls currently scheduled between now and June 1st, 2020 will go ahead as planned.


Harrison S. Arrell
Regional Senior Justice – Superior Court of Justice
Central South Region