Law Times

January 28, 2008

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Page 0 of 15 McKELLAR STRUCTURED SETTLEMENTS INC. 1-800-265-8381 ckellar_LT_Jan14_08.indd 1 1/8/08 3:03:02 PM TitlePLUStitleinsuranceandyou, togetherwemakerealestate realsimple. 416-598-5899 1-800-410-1013 Law Times Earlug Ad 1/16/08 4:06 P $3.55 • Vol. 19, No. 3 Covering Ontario's Legal Scene January 28, 2008 For monthly specials call Sandy Shutt 905-713-4337 Ottawa lawyers lambaste Harper bench boost OTTAWA — A bill tabled by the Harper government to add 20 seats to the federal superior court benches across Canada is under attack by Ottawa lawyers. They say the addition is a "drop in the bucket" of what is needed to cope with growing caseloads and that it ignores a critical short- age of family court judges in the national capital. The legislation, bill C-31, has received little public notice since Justice Minister Rob Nicholson quietly tabled it for first reading last Nov. 28. But a leading family lawyer, along with criminal and civil law- yers in Ottawa, say the bill fails to meet pressing demands that have grown with the country's popula- tion since the superior court ranks were last increased 10 years ago. A notable mystery surrounding the legislation is Nicholson's deci- sion to drop a provision in a simi- lar bill introduced by the previous Liberal government that would have addressed growing problems in family courts by giving them a total of 27 new judges. Criminal, civil, and family lawyers agreed the greatest need in Ottawa is family court, which has only four judges. The situation there is "horren- dous, people are waiting two years to get to court; there are children involved and property and every- thing else. It's alarming," Mark Ertel, president of the Defence Counsel Association of Ottawa, tells Law Times. The Liberal bill died on the Commons order paper when former prime minister Paul Mar- tin's minority government fell in November 2005, and Governor General Michaëlle Jean dissolved Parliament for the January 2006 election. Exacerbating the superior court bench shortage, the Harper government wants the provinces to designate six of the 20 new judges to be available for duty with a new aboriginal Specific Claims Tribunal. "It's kind of a drop in the buck- et when you look at what the need is," Jane Murray, a family law spe- cialist with Burke-Robertson LLP, tells Law Times. "You could put all 20 of those judges into Ontario and it might be sufficient; that's what they're suggesting for the whole country." Mortgage fraud decision will impact real estate industry Bank didn't take proper steps P owers of attorney are expected to be more heavily scrutinized in real estate transactions after the Ontario Superior Court ruled that a bank is on the hook for a $300,000 mortgage on a home that was fraudulently sold. The case also was the first to interpret the crucial Lawrence v. Maple Trust Company deci- sion of 2007. "The decision is going to have an enormous impact on how banks, real estate agents, law- yers, buyers — basically all industry stakehold- ers — treat any transaction involving a power of attorney," says real estate lawyer Bob Aaron. "From now on the documents are going to be scrutinized very, very carefully by everybody." In a December ruling that gained little at- tention, Justice John Macdonald found that an elderly North York man, Paul Reviczky, is not on the hook for a mortgage that was taken out on his investment property after it was sold us- ing a fraudulent power of attorney. Reviczky, 90, tells Law Times that after the judgment was released, he "felt much better than before." In the case, Reviczky v. Meleknia and HSBC Bank Canada, Macdonald interpreted Lawrence and concluded that the issue in Reviczky was whether HSBC "had an opportunity to avoid the fraud." Macdonald concluded that a solicitor ob- tained by HSBC "did nothing to scrutinize the power of attorney," which was notarized by North York lawyer Sheldon Caplan and used to sell Reviczky's property for $450,000, in May 2006, to Pegman Meleknia, who took out a $300,000 mortgage with HSBC. In his decision, Macdonald referred to Lawrence, which reasserted that the principle of deferred indefeasibility of title accords with the Land Titles Act. He quoted the following from that decision: "Under this theory, the party acquiring an interest in land from the Paul Reviczky, 90, is no longer on the hook for a mortgage that was taken out on his invest- ment property after it was sold using a fraudulent power of attorney. In the photo he's holding a photocopy of the forged document. Inside This Issue Moving On Up 5 Revolving Door 6 Focus On Forensics/ Private Investigators 9 Quote of the week "It is the duty of an advocate to present his submissions and he should not be reproved for seeking that opportunity. All participants, counsel, and judicial officers owe a duty of courtesy." — Justice Margaret Eberhard Superior Court of Justice See JP, page 4 BY ROBERT TODD Law Times See Decision, page 2 BY TIM NAUMETZ For Law Times See Ottawa, page 2 Photo: Robert Todd It's kind of a drop in the bucket when you look at what the need is. You could put all 20 of those judges into Ontario and it might be sufficient; that's what they're suggesting for the whole country. New Partners Yearbook *Pages 1-16.indd 1 1/24/08 6:10:24 PM

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