Welcome to the Winter 2011 edition of The Abstract Page!
by Ray Mikkola
In this edition we include the inaugural message from the Section’s new chair, Don Thomson. Welcome Don! Don is obviously no stranger to the Section or to The Abstract Page, having served many years on the Executive.
Your Rooftop—To Lease or Not to Lease
by Pamela A. Green & David J. Forgione
With the Ontario Green Energy Act (the “GEA”) offering financial incentives for businesses that create green energy, a new phenomenon has been created—leases of rooftop space for the installation and operation of solar panel facilities.
Assignment of Rents: Potential Conflicts and Exceptions
by Jeff Levy
It is a fait accompli that an assignment of rents could be registered in Land Titles. As the right to get rents is a chose in action, it has to be registered under the P.P.S.A. With regard to an assignment of leases, it could and should be registered normally, because the lease is a property interest. It follows therefore that it cannot be registered under the P.P.S.A.
A Comment on the Appellate Decision in Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930
by Harry Herskowitz
The case of Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930, an unreported decision of the Ontario Court of Appeal released on November 9th, 2010 (hereinafter referred to as the Lexington Case), addresses whether section 112 of the Condominium Act 1998, S.O. 1998, as amended (hereinafter referred to as the Act) entitles a condominium corporation to terminate the agreement of purchase and sale with respect to the manager’s unit entered into between the declarant as vendor, and the condominium corporation as purchaser (irrespective of whether same was fully and accurately disclosed and budgeted for), and correspondingly entitles the condominium corporation to terminate the duty set forth in the declaration to acquire such unit from the declarant.
The Supreme Court Limits The Duty To Consult Aboriginal Groups
by Jeff Lem
Most lawyers appreciate that, in Canada, the Crown and all of its agencies have a duty, when making decisions which may adversely impact lands which are subject to the claims of Aboriginal peoples, to first consult with the potentially affected First Nations, and then to reasonably accommodate, where possible, the legitimate concerns of those First Nations. This duty is now statutory, but has its genesis in the Royal Proclamation of 1763, wherein the British Crown "pledged its honour to the protection of Aboriginal peoples from exploitation". Especially being constitutional in character, the jurisprudence considering the duty would appear to most real estate lawyers as truly sui generis because the nature of the duty and the remedy for its breach seems to vary so greatly from situation to situation.
I am privileged to be the Chair for the 2010-2011 term of the Real Property Section Executive of the Ontario Bar Association. Having spent a few years working as the Vice Chair of the Executive, I have come to greatly appreciate the atmosphere of collegial exploration and consensus-building on issues of substance that are of interest to the members of the Section and members of the real estate bar as a whole. With the continuous support of the OBA staff and our section member volunteers, we can accomplish a lot this year, including making well informed and sound decisions that will advance the mandate of the Section and the real estate bar.
The Abstract Page is published by the Real Property Section of the Ontario Bar Association. Members are encouraged to submit articles. The articles that appear in this publication represent the opinions of the authors. They do not represent or embody any official position of, or statement by, the OBA except where this may be specifically indicated; nor do they attempt to set forth definitive practice standards or to provide legal advice. Precedents and other material contained herein are intended to be used thoughtfully, as nothing in the work relieves readers of their responsibility to consider it in the light of their own professional skill and judgment.
Welcome to the Winter 2011 edition of The Abstract Page!
Raymond H. Mikkola*
In this edition we include the inaugural message from the Section’s new chair, Don Thomson. Welcome Don! Don is obviously no stranger to the Section or to The Abstract Page, having served many years on the Executive.
Pamela Green and David Forgione have prepared a short article on solar rooftop leases which is designed to assist you with some considerations in preparing or reviewing such leases. Harry Herskowitz provides a case comment on the Lexington case, in which a post turnover condominium board wanted to rescind its obligation to purchase a manager’s unit from the declarant.
Jeff Levy, never one to shrink from a challenge, takes us through his analysis of the PPSA and the Land Titles Act in respect of priorities and registration issues under the PPSA and the Land Titles Act in respect of general assignment of rents (“GAR”). While the issue of a specific assignment of a lease is straightforward, the article made me think about a GAR. What is a GAR, exactly? Is it an interest in Land? The right to collect rents runs with title (see s. 15 of the Conveyancing and Law of Property Act). I would have thought that this is sufficient, but apparently it might not be. See also Chris Huband’s excellent article on this matter in the October 18th, 2005 LSUC CLE program “PPSA for Real Estate and Business Lawyers” chaired by Jennifer Babe and Jeff Lem.
Jeff Lem writes about the duty to consult, particularly where any part of your client base deals with P3 infrastructure, alternative energy, mining or even real estate development anywhere on or near lands affected by or subject to Aboriginal Claims. This article is noteworthy for a number of reasons, not the least of which is that Jeff used it as an opportunity to employ the word “homologous”. It means “…having the same relation, relative position, or structure, in particular”. It really does. I looked it up.
By the way, have you ever read and thought about s. 118 of the Land Titles Act regarding the registration of restrictions? Don’t confuse it with s. 119 - registration of restrictive covenant - which is a whole different thing altogether. Restrictive covenants need to be negative in nature, touch upon the use of the land, need a servient and dominant tenement, etc…, and have been analyzed by, probably, dozens and maybe hundreds of judges in Ontario alone. No, s. 118 allows an owner to register a restriction against title to his/her property that prohibits the registration of a deed or a mortgage without the written consent of a third party (among other things). It’s an amazingly powerful section, which is almost never used. I am most familiar with its use by municipalities where they register so called “Inhibiting Orders” in the course of registering plans of subdivision. For example, a municipality may require certain conveyances or agreements to be registered immediately after the plan has been registered, so it essentially “freezes” title to the subdivision lots and blocks until certain additional instruments are registered. But the section isn’t limited to use by municipalities. So why isn’t it used more frequently? Are owners unwilling to grant restrictions? Are deep thinking proponents of their use concerned that, despite the clear provisions of the statute, a restriction could ab initio be found to offend the common law principle that documents which constitute a restraint of alienation are unenforceable? They do not appear to require servient and dominant tenements, or any of the prerequisites to a valid restrictive covenant. The effect of the restriction is that the owner cannot access the land registry parcel, at least to register deeds or mortgages (if that is the restriction).
Maybe it’s too easy to get around one. For example, it appears that you could register an option to purchase. Could you exercise it? What about an option registered prior to a restriction? If you prohibit the registration of a transfer only, can a mortgagee exercise its power of sale provision under its charge even in the face of the restriction of transfer?
The next time I have an opportunity to do so I will recommend to a client that he/she consider using a section 118 restriction. It seems to me to be a powerful, useful tool, which is almost never used. And there seems to be no case law on the section.
With the Ontario Green Energy Act (the “GEA”) offering financial incentives for businesses that create green energy, a new phenomenon has been created—leases of rooftop space for the installation and operation of solar panel facilities.
The GEA was enacted in May 2009. One of the main objectives of the GEA was to expediate the growth of clean, renewable sources of energy, such as wind, solar, hydro, biomass and biogas, by creating a Feed-in Tariff Program (“FIT Program”). It achieves this objective by: (i) guaranteeing access to the provincially regulated electricity grid, when specific regulatory requirements are met; and (ii) paying producers specific rates for energy generated. The Ontario Power Authority (OPA) operates the FIT Program and is currently offering twenty-year contracts to producers of renewable energy.
As a result of the FIT Program, owners of commercial/industrial buildings are now being approached by solar power companies seeking to lease rooftop space to install and operate solar panel facilities. Rooftop solar facilities are among the highest paid forms of renewable energy under the FIT Program (meaning the OPA will pay more for this type of power than other types). However, leasing of rooftop space for solar panel systems may not be appropriate for all commercial/industrial properties and property owners should consider a number of factors before exploring this type of tenant for their property.
The initial exercise in determining whether or not to lease the roof of your building is to review the leases already affecting your property, if any. A detailed review should be conducted of the provisions of the leases governing the use, maintenance and control of the roof, the allocation of costs between the landlord and the tenants with respect to the roof, and how a rooftop tenant would affect the management and operation of the building generally. A review of existing lease provisions is essential as the leases may need amendment to allow for installation and maintenance or to address tenant concerns in relation to the rooftop solar panel system’s impact on the tenant’s business and expenses.
Property owners will also need to consider zoning compliance issues related to how the solar panels might impact height restrictions on the buildings on the property. Most municipalities now have specific provisions in their zoning by-laws dealing with rooftop solar panel systems.
Consideration also needs to be given to the property tax implications. The Municipal Property Assessment Corporation (“MPAC”) has not yet set a formal policy on how to classify and assess rooftop solar facilities however, MPAC has indicated they will likely assign an industrial classification to the use. As such, a solar panel installation may impact the tax classification and/or assessed value of your property resulting in an increase in your realty taxes. You will want to determine any realty tax implications, particularly where the installation results in a mix of industrial and commercial uses where the lower rate single use formerly applied.
If existing leases do not prohibit the installation of solar panels, the next step is to determine if your roof has load bearing capacity and what type of facility may be appropriate given issues such as weight limitations, wind velocities, placement of existing rooftop mechanicals and the orientation of the building on the property. These are investigations that professionals should undertake.
The last step is to prepare a lease of the rooftop space that is appropriate for, and particularized to, the operational requirements of the property. Some solar power companies may ask that you sign a letter of intent or an offer to lease. They often do this before investigations into feasibility have been commenced and many of these documents purport to bind the landlord to a “standard form of lease”. Any lease should address, not only where the panels will be located, but also their long-term impact on the roof and the allocation of responsibility for maintaining, repairing, upgrading, replacing, and insuring the panels and the roof. The landlord should consider indemnities for damage to the roof by the solar tenant, nuisance and insurance issues, as well as relocation and interruption clauses that limit landlord liability in the event that the roof needs to be replaced (to protect the premises of other tenants) or other circumstances that may require the relocation and interruption of the solar panel system.
There are many other matters to think about before agreeing to lease your rooftop. In the end, the lease of rooftop space may not be compatible with your other commercial uses of the property. In cases where such a lease is appropriate, lease terms should be tailored to the requirements of the specific property and the property owner should avoid signing a letter of intent, an offer to lease or standard lease form before it is reviewed by legal counsel.
*Pamela A. Green is a partner in the Commercial Real Estate Group at Pallett Valo LLP in Mississauga.
**David J. Forgione is a lawyer in the Commercial Real Estate Group at Pallett Valo LLP in Mississauga.
Assignment of Rents: Potential Conflicts and Exceptions
Jeff Levy*
It is a fait accompli that an assignment of rents could be registered in Land Titles. As the right to get rents is a chose in action, it has to be registered under the P.P.S.A. With regard to an assignment of leases, it could and should be registered normally, because the lease is a property interest. It follows therefore that it cannot be registered under the P.P.S.A.
Conflicts
So, the question is whether or not to register an assignment of rents against the land. That is when conflicts with the P.P.S.A. begin. Because an assignment of rents is a chose in action and the right to receive rent is personal property, it can be registered under the P.P.S.A. Theoretically, under the P.P.S.A, an assignment of leases being an assignment of a contract as security for a loan can also be registered. This is contradicted in Section 4(1) of the P.P.S.A., which states that it does not apply to an assignment of an interest in real property, including a lease of real property. Hence, an assignment of leases cannot be registered under the P.P.S.A. and priority would not be affected by such registration if carried out after all. Priority would be affected by land registrations only.
Exceptions
There is an exception in Section 4(1) of the P.P.S.A., namely: “an assignment of a right to payment under a…lease where the assignment does not convey ….the assignor’s interest in the real property.” It refers to an assignment of rents, not quite elegantly stated. If the wording of the exception means that the assignment of rents does assign the assignor’s interest in the lease, then it cannot be registered under the P.P.S.A. The assignor here is the mortgagee. If so, what are the circumstances when an assignment of rents conveys the landlord/borrower’s interest in real property? One argument is that it applies only where the assignment of rents also assigns leases that are hybrid documents. In that event, it is treated as an assignment of leases for the purposes of the P.P.S.A. If, however, it is a bald assignment of rents, then it should be registered under the P.P.S.A. The alternative is that an assignment of rents is always an interest in real property being a covenant in a lease. So, the question is whether the assignment is collateral to a loan or is it an absolute. If it is collateral, it does not assign the assignor’s interest in the lease until it becomes absolute. If it is absolute, or becomes absolute, then the P.P.S.A. does not apply and priority is determined by the Land Titles Act.
It is also necessary to look at Section 36(1) of the P.P.S.A. stating:
“36.-(1) A security interest in a right to payment under a lease, to which this Act applies, is subordinate to the interest of a person who acquires for value the lessor’s interest in the lease or in the real property thereby demised if the interest, or notice thereof, of the person is registered in the proper land registry office before the interest, or notice thereof, of the secured party is registered in the proper land registry office.”
It means that an assignment of rents registered under the P.P.S.A. competes for priority with other personal property security governed by the P.P.S.A. As the first to register has priority, two competing assignments of rents or a GSA and an assignment of rents will be judged for priority purposes by who registered first under the P.P.S.A. Land Titles registrations are not relevant here, but if a person or one of the lenders acquires the real property or takes an assignment of the lease, then the P.P.S.A. does not apply and priority is governed by the land registration system. Hence, a notice of assignment of rents should be registered under both the land registration provisions and under the P.P.S.A. so as to have priority.
The query then becomes, what does “acquire an interest in the real property or the lease” mean. Obviously, sale or foreclosure is the answer. Does taking possession, appointing a receiver, attorning rents, or merely taking the security by way of mortgage security also satisfy? This point is crucial because it means a move from P.P.S.A. priorities to real property priorities with possibilities as follows:
Mortgage itself constitutes “acquiring the interest of the borrower in the real property” for the purposes of the P.P.S.A. It is not in real property law but is adequate for Section 36(1) of the P.P.S.A.;
Taking possession constitutes “acquiring the interest of the borrower in the real property” for the purposes of the P.P.S.A. Once more, it is contrary to mortgage law but suitable for Section 36(1) of the P.P.S.A. There are serious reservations against it.
Lastly, a mortgagee in possession is obliged under law to collect and apply rents. This duty strongly supports Section 36(1) of the P.P.S.A. even though it has its challenges.
Assuming that these arguments are valid, then priority as against rents is determined by the P.P.S.A. Land Titles until sale or foreclosure have no role there. Summing up, therefore, an assignment of leases cannot be registered under the P.P.S.A. and it is necessary to do so under the land registration statutes.
Assignment of rents is to be registered under the P.P.S.A. and the Land Titles. Until the mortgagee forecloses, or sells under power of sale, priorities are governed by the P.P.S.A., such as between two lenders, each of whom has an assignment of rents. After the mortgagee sells or forecloses, or if a purchaser acquires the real property, priority is determined by the time of registration under real property regime. It could be that the P.P.S.A. ceases to apply at an early stage when the mortgage is taken out or when possession is taken. The safe course is to ensure that the assignment of rents has priority under the, P.P.S.A. by obtaining subordination from other P.P.S.A. holders.
Also, rents can be assigned to a lender under the terms of the mortgage, under a debenture, under a GSA, under a general assignment of rents and under a specific assignment of rents. Even if the mortgage is silent about assigning rents, the right to receive rents being an incidence of ownership, will be included in a mortgage. After the lender has taken possession, the lender would be entitled to the rents from the property. It is possible that a succeeding lessee cannot be compelled to pay rent, but will have to give up possession of the secured property if the prior lender takes possession.
A Comment on the Appellate Decision in Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930
Harry Herskowitz*
The case of Lexington on the Green Inc. v. Toronto Standard Condominium Corporation No. 1930, an unreported decision of the Ontario Court of Appeal released on November 9th, 2010 (hereinafter referred to as the Lexington Case), addresses whether section 112 of the Condominium Act 1998, S.O. 1998, as amended (hereinafter referred to as the Act) entitles a condominium corporation to terminate the agreement of purchase and sale with respect to the manager’s unit entered into between the declarant as vendor, and the condominium corporation as purchaser (irrespective of whether same was fully and accurately disclosed and budgeted for), and correspondingly entitles the condominium corporation to terminate the duty set forth in the declaration to acquire such unit from the declarant.
At trial, Justice Thorburn concluded that section 112 of the Act [unlike its predecessor, namely section 39(2) of the prior condominium legislation] expanded the scope of agreements that can be terminated by the condominium corporation, to include not only any agreement for the provision of recreation facilities, but facilities generally, and that the manager’s unit fell within the purview of the term facilities. Despite the declarant’s full and accurate disclosure of the intended acquisition of the manager’s unit by the condominium corporation, similar to what occurred in Peel Condominium Corporation No. 417 v. Tedley Homes Ltd. (1997) 35 O.R. (3rd) 257, Justice Thorburn nevertheless held that section 112 of the Act authorized the post-turnover board to terminate the purchase agreement within the 12 month period following the turnover meeting. In addition, Justice Thorburn ordered that the provision in the declaration which expressly obliged the condominium corporation to purchase the manager’s unit be amended to state that such an obligation is subject to the operation of section 112 of the Act, and that if it was necessary to amend the declaration further in order to take into account the condominium corporation’s rights under section 112, then the declaration shall be amended so as to delete, in their entirety, those provisions in the declaration creating the obligation to acquire the manager’s unit.
The unanimous decision of the Court of Appeal in the Lexington Case was rendered by Justice O’Connor. Applying the guidelines for statutory interpretation enunciated by the Supreme Court of Canada in the case of Chieu v. Canada [2002] 1 S.C.R. 84, which require the words of a statute to be read in their entire context and in their grammatical and ordinary sense, and construed harmoniously with the scheme and object of the statute, Justice O’Connor concluded that agreements (which constitute legally binding contracts entered into by two or more parties), are separate and distinct from declarations (which are statutorily prescribed documents that are prepared and registered unilaterally by declarants, and which provide the legal framework for condominium corporations, upon which both unit purchasers and declarants can rely). Accordingly, the Court of Appeal held that the ordinary meaning of the language outlined in section 112 of the Act does not, and should not, include the authority to terminate legal obligations arising from the declaration, and that such an interpretation is consistent with the statutory scheme of the Act.
While the Court of Appeal ruled that the post-turnover board had the authority to terminate the purchase agreement pursuant to section 112 of the Act, the exercise of that authority did not extend to the obligation created by the declaration, and therefore the condominium corporation was nevertheless obliged to complete the purchase of the manager’s unit pursuant to the obligation set forth in the declaration.
In conclusion, the Lexington Case now stands as authority that a duty set out in the declaration that is otherwise properly included therein, pursuant to section 4(d) of the Act (and which is consistent with the condominium corporation’s objects and duties to manage the condominium property), will prevail and be enforceable independently of any ancillary agreement that is subsequently entered into with the condominium corporation in order to evidence, affirm, supplement or augment such duty, notwithstanding the ultimate termination of any such agreement pursuant to section 112 of the Act.
The Supreme Court Limits The Duty To Consult Aboriginal Groups
Jeff Lem
Most lawyers appreciate that, in Canada, the Crown and all of its agencies have a duty, when making decisions which may adversely impact lands which are subject to the claims of Aboriginal peoples, to first consult with the potentially affected First Nations, and then to reasonably accommodate, where possible, the legitimate concerns of those First Nations. This duty is now statutory, but has its genesis in the Royal Proclamation of 1763, wherein the British Crown "pledged its honour to the protection of Aboriginal peoples from exploitation". Especially being constitutional in character, the jurisprudence considering the duty would appear to most real estate lawyers as truly sui generis because the nature of the duty and the remedy for its breach seems to vary so greatly from situation to situation.
The duty to consult arises when the Crown has knowledge, real or constructive, of potential Aboriginal rights or potential Aboriginal title (collectively, "Aboriginal Claims") and is proposing some course of action which might adversely affect such Aboriginal Claims. These Aboriginal Claims need only be potential, not certain, but they are quite varied in nature, including, without limitation, traditional rights to use land (hunting, trapping, fishing, harvesting, etc.), interests in burial grounds and other cultural sites, treaty rights, land claim agreements, unresolved land claims, reserves, etc.
Furthermore, the duty to consult is not limited to specific projects or initiatives and can, under certain circumstances, extend to “strategic, higher level decisions” that may have an indirect or downstream impact on Aboriginal Claims, so long as such government conduct is a true causa causans of adverse impacts on Aboriginal Claims.
Although the duty to consult does not actually require the Crown and the affected First Nations to reach consensus (so it falls short of a de facto Aboriginal veto), the consultation must be substantive and conducted in good faith, with a genuine willingness on the part of the Crown to make reasonable accommodations where practicable.
The jurisprudence shaping the scope of the duty is very "thick", both in terms of the number of appellate decisions on point and in terms of the length of the decisions which have addressed the scope of the duty. Chief Justice McLachlin's decision in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 is frequently cited as the seminal case on the interpretation of the duty (indeed, the duty is often referred to colloquially as the "Haida Duty"), although there have been many appellate decisions both before and after Haida Nation. At the end of 2010, the Supreme Court of Canada released two more decisions, one after the other, into this jurisprudential cornucopia.
In the first such case, Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 (hereinafter, "Rio Tinto Alcan"), the Supreme Court analyzed an application of the so-called "Haida Duty" in the context of non-treaty First Nations. Although a modern case, the true government action giving rise to the current situation actually took place in the 1950's when the Kenney Dam was constructed across the Nechako River to provide electricity for Alcan (now Rio Tinto Alcan). As part of the arrangements for the dam, Alcan was allowed to sell excess electricity to other industrial clients and to BC Hydro for the provincial grid. In 2007, BC Hydro entered into a long-term bulk purchase agreement with Alcan for future electricity. Eight separate First Nations led by the Carrier Sekani Tribal Council challenged BC Hydro's right to contract with Alcan for future electricity without first consulting the First Nations who have, for decades leading up to the 2007 contract, suffered because of the damming of the Nechako River.
The Rio Tinto Alcan decision itself was actually an administrative law case considering whether or not the B.C. Utilities Commission was ultra vires in taking it upon itself to pass judgement on the duty to consult. But in so deciding this narrow administrative issue, the Supreme Court also provided a significant narrowing of the duty to consult. Greatly paraphrased, the Supreme Court in Rio Tinto Alcan held that: (i) the duty to consult does not apply to past wrongs, including previous breaches of the duty to consult; and (ii) where the resource has long since been altered (rightfully or wrongfully) and the current government initiative does not have any further, marginal impact on any potential Aboriginal Claims, then the current government initiative does not require consultation. In its unanimous decision, the Supreme Court held that the damming of the Nechako River was a long past event and that continuing contracts for electricity did not exacerbate the harm that such damming may already have wrought on the First Nations along the Nacheko River. As such, BC Hydro had no duty to consult the First Nations before contracting for electricity from Rio Tinto Alcan.
In Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 (hereinafter, "Little Salmon/Carmacks"), released just two weeks after Rio Tinto Alcan, the Supreme Court analyzed the duty to consult in the context of existing Aboriginal treaties. The Little Salmon/Carmacks First Nations had finally reached a binding treaty with the Crown in right of both Canada and Yukon in 1997 after nearly twenty years of negotiations. That treaty expressly provided for a notice and consultation protocol. In exchange for their treaty rights, the Little Salmon/Carmacks First Nations surrendered their Aboriginal title claims, although they maintained their Aboriginal rights (hunting, trapping and fishing, etc.) over the surrendered lands until the Crown re-granted such surrendered lands to other owners (which re-granting was contemplated by the treaty). When the Crown eventually re-issued a patent over a small part of the formerly disputed (but now voluntarily surrendered) lands, the Little Salmon/Carmacks First Nations alleged that the government should have first consulted with and accommodated the First Nations before so doing because the re-grant (to a local farmer) would prejudice their hunting, trapping and fishing privileges.
Like in Rio Tinto Alcan, the Supreme Court in Little Salmon/Carmacks was unanimous in finding that the Crown had satisfactorily upheld its duty to consult, but unlike in Rio Tinto Alcan, the Supreme Court in Little Salmon/Carmacks seemed divided as to ratio decidendi, so much so that the justices issued two separate reasons. McLachlin C.J. and Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ, concurred with each other in finding that the duty to consult exists even if there is a comprehensive treaty governing the rights and remedies of the affected First Nations, concluding that the duty to consult is constitutionally entrenched and cannot be contracted out of via treaty. This majority of the justices then noted, however, that, on the facts, compliance with the notice and hearing protocols contemplated in the treaty fully discharged the common law duty to consult.
LeBel and Deschamps JJ. concurred with each other in separately issued reasons. According to this minority of the justices, the scope of the duty to consult could, in fact , be contractually established by treaty. In fairness, nowhere in their reasons do they actually conclude that the duty to consult could be contracted out of completely via treaty, but what they do say is that any consultation process contained in a valid and comprehensive treaty would supersede the homologous common law duty that might have applied but for the treaty. Either way, the Crown did not fail its duty to consult in Little Salmon/Carmacks.
Lawyers not yet persuaded on the importance of the duty to consult or the relevance of such duty to their practices should think again. While the duty rests solely with the Crown and its various agencies, the duty often (indeed, typically) arises in transactions involving private sector parties. While the duty itself cannot be downloaded to the private sector, procedural compliance aspects of the duty to consult may ultimately rest with private sector participants as part of the overall allocation of responsibilities in the deal. In any event, litigation over the failure to discharge such duty to consult can only bring delays and additional costs to any given project, even if the duty to consult belonged at all times to the government. If any part of your client base deals with P3 infrastructure, alternative energy, mining or even real estate development anywhere on or near lands affected by or subject to Aboriginal Claims, then the duty to consult needs to now be part of your legal repertoire.
I am privileged to be the Chair for the 2010-2011 term of the Real Property Section Executive of the Ontario Bar Association. Having spent a few years working as the Vice Chair of the Executive, I have come to greatly appreciate the atmosphere of collegial exploration and consensus-building on issues of substance that are of interest to the members of the Section and members of the real estate bar as a whole. With the continuous support of the OBA staff and our section member volunteers, we can accomplish a lot this year, including making well informed and sound decisions that will advance the mandate of the Section and the real estate bar.
I would like to extend a heartfelt thanks to all those members of the Section Executive who have served in the past and welcome all new executive members who play an important role in making our Section work and who are willing to give back to the real estate bar.
The OBA Real Property Section would cease to exist as we know it without the dedication of dozens of real estate practitioners who are willing to give back to their profession in big and small ways. Whether these dedicated people are working at the provincial or National level, have contributed five hours or 50, are just starting to practise or are decades along in their legal careers, they all play an important role in making the OBA Real Property Executive hive hum along. I can assure all newcomers to the Real Property Executive that they will learn a lot about volunteering and how it provides them with good networking opportunities.
The OBA Real Property Section has formed a sub-committee to review the challenges faced by real estate practitioners in using bank drafts and certified cheques to transfer funds as between law firms, clients and mortgagees and to explore alternate methods of moving closing funds through an electronic payment system that is accessible, reliable, affordable and final.
By the time you read this issue of The Abstract Page, the 36th Annual OBA Institute will have taken place. This year the Real Property half day program titled “Negotiating the Offer” was chaired by Lori Swartz and Jeffrey T. Schwartz. This practical and practice-oriented program was well attended and received very good reviews.
The Real Property Executive is planning to hold two Luncheon Programs in the spring of 2011. The first program which will be chaired by Jeffrey Udell is scheduled for Thursday, March, 10, 2011, and will focus on the Power of Sale process from start to finish. The second program which will be chaired by Jeff Lem will be held in April and will deal with Property and Liability Insurance issues.
The Real Property Executive is currently seeking nominations of eligible candidates for the Teranet Award of Excellence in Real Estate. We are looking for a high profile candidate who has made a significant contribution to real estate law in Ontario and who exemplifies the best of the real estate bar.
Nomination forms are available online and were distributed at the Annual 2011 Institute and all members of the OBA Real Property Section will receive a Nomination Form by e-mail in February. The social event surrounding the presentation of this prestigious Award is now in the planning stages and once a date, venue and evening event have been finalized, all Real Property Section members will be notified.
Just a reminder that commencing January 1, 2011, lawyers must complete in each calendar year at least 12 hours of continuing professional development in eligible activities. No less than three of the 12 hours must be on topics related to professional responsibilities, ethics and practice management. Registering for one of the many OBA continuing legal education programs is a good way to meet the continuing professional development requirement.
To nominate a colleague for this Award, please complete a nomination form and submit it on or before Friday, March 4, 2011 along with a brief summary of the reasons for nomination, and a copy of the nominee’s curriculum vitae.
Nominations should be submitted to Don Thomson:
Donald V. Thomson
Chair, OBA Real Property Section
Walker Ellis
390 Bay St, 30th Floor
Toronto ON, M5H 1W2
Login
CBA.org
Français
RSS 
SEARCH
Home
