Every so often cases come along that can change an entire area of law. Some bear the hallmarks of a precedent-setting case and are easy to spot from a distance. Other times, the potential impact of a case is only known to legal specialists.
The OBA has intervened recently in both types of cases. One involved the interpretation of the new summary judgment rule in Ontario and raised questions of fundamental importance to the civil justice system. The other, brought to our attention by the OBA Real Property Section, involved the integrity of the land registry system in Ontario and the ability to correct registry errors.
Seeking Summary Judgment Clarity: Bruno Appliances v. Hryniak
Following on the recommendations of the Osborne Report on Ontario’s civil justice system, Ontario changed its summary judgment rule to allow greater use of the procedure and to remove some of the obstacles that had prevented courts from deciding cases on summary judgment. However, ever since the rule was changed in January 2010, lower courts have struggled to apply it consistently.
In 2011, a five-judge panel of the Ontario Court of Appeal heard five appeals dealing with different aspects of the new summary judgment rule. The Court invited the OBA, the Attorney General of Ontario and three other legal organizations to intervene as friends of the Court. Past OBA President Paul Sweeny and I, together with the late Robert J. van Kessel, represented the OBA in this landmark case.
The Court of Appeal’s decision, known as Combined Air, introduced into the legal lexicon of Ontario the “full appreciation test.” The test requires a judge who hears a summary judgment motion to consider whether the “full appreciation” of the case can be achieved on a paper-based summary judgment motion or whether it can only be achieved at a traditional trial.
When two of the five Combined Air cases landed in the Supreme Court of Canada (now under the name Bruno Appliances), Paul Sweeny and I reprised our roles, this time on behalf of the Canadian Bar Association as the case was now on the national stage. We argued that the Court of Appeal’s decision underplayed the access to justice goal behind the 2010 amendment to the summary judgment rule and curtailed the motion judge’s ability to dispose of cases short of a full trial. The appeal was argued in March and is under reserve.
Fixing Errors in Land Titles Register: MacIssac et al. v. Salo et al.
The issue in MacIssac was whether Section 159 and 160 of the Land Titles Act permitted rectification of a land titles parcel where there had been a mistake in the register and the affected parties had acquired their interest in the property knowing that the property was different from the registered title. The judge at first instance held that the court had no power to rectify a land titles parcel once a bona fide purchaser acquired an interest in the property subsequent to the mistake. The decision appeared to say that there could be no rectification even if the current owner had actual notice of the mistake before purchasing.
The decision had implications for real property lawyers and their clients. It meant, for example, that if a lawyer did not recommend a client obtain a survey and what is on title is different from what is on the ground, the lawyer may be liable. More importantly, the lawyer could not rectify the title to undo the error even if no one is prejudiced by the error.
The OBA’s Real Property Section asked by the OBA to intervene to clarify when rectification is available to clarify an error. Working with the Real Property Section, Arnie Herschorn of Minden Gross LLP represented the OBA before the Ontario Court of Appeal.
The appeal decision came out in February of this year. The OBA was successful in its goal as the Court confirmed “the statutory remedy of rectification is available where a party has actual notice of an interest in land that varies from the interest shown in the register.”
A broad-based legal organization like the OBA can add expertise and credibility to a public interest argument. The OBA is ready to intervene when the interests of its members and their clients are on the line.
About the Author
David Sterns, of Sotos LLP, is the OBA’s Chair of Public Affairs and the Toronto Region representative on the Board of Directors.