Law Times

PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ............. Neal Adams CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter lim woman can wear a niqab — a re- ligious veil that shows only her eyes — while testifying at the preliminary hearing of two men accused of sexually assaulting her. The issue has been ruled upon once T already by Justice Norris Weisman of the Ontario Court of Justice who last fall ordered the woman to testify sans niqab at the men's preliminary hearing. Weisman noted that she had her driver's licence photo taken with her face uncovered. According to media reports, the defence lawyers argued successfully that allowing the woman to testify wearing the veil would infringe on their clients' fair trial rights. They said they should his Friday Superior Court Jus- tice Frank Marrocco will tackle the question of whether a Mus- March 9, 2009 • Law TiMes Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Our veiled opinion be able to see the witness' face so they can weigh her demeanor. The woman filed a writ of certiorari asking the Superior Court to overturn the ruling. Meanwhile, the Ontario Human Rights Commission has asked to intervene at the appeal to argue that Weisman didn't recognize the woman's religious freedoms. In an affidavit, Barbara Hall, chief com- missioner of the body, says the commis- sion can "offer the court assistance and expertise in the area of accommodation particularly in relation to discrimination based on creed or religious belief." Well, the commission should keep its nose out of the courts. In this case in partic- ular, the woman's experienced lawyer, David Butt, is skilled and more than capable of car- rying the ball. In fact, he makes some good points in media reports about the case. The Canadian Press quotes Butt as saying the courts have to balance the right of an accused person to face their accuser with religious beliefs. "That's what makes this a very inter- esting issue for the courts in the sense that we're balancing two different rights — each of which the Supreme Court has said are equally valid," he said in the CP story. "Really, what we're doing is taking the general principles around respecting religious freedom on the one hand and ac- cording the accused a full defence on the other, and trying to fashion a particularly Canadian outcome that respects both those rights as much as possible," said Butt in a story on the CTV.ca web site. And that's precisely the problem with this issue, for it's easy to argue on behalf of both sides, therefore we'll duck that for now and leave it to the courts to decide. (Although we can't resist a couple of questions: depending on how this goes, what happens if/when in the future the person on trial wears a niqab? For ex- ample, what if identity is an issue? And how does a jury factor in — the box is placed where it is for a reason . . .) This is considered a "first" in Cana- da. It probably won't be the last. We're confident however the issue is in good hands with the lawyers and judges. So butt out human rights commission. — Gretchen Drummie Go to www.lawtimesnews.com for an audio version. L Sea change for title insurance industry as we know it The andAmerica Financial Group, Inc. has gone "belly-up." Well . . . wait . . . sort of . . . not really . . . there is fine print . . . read on . . . It is true that LandAmerica Financial Group, Inc., the parent corporation of the LandAmer- ica Group, and its subsidiary, LandAmerica 1031 Exchange Services, Inc., filed for Chapter 11 bankruptcy protection in Vir- ginia on Nov. 26, 2008. However, what pithy and sen- sationalist headlines fail to disclose is that the principal title insurance subsidiaries in the LandAmerica Group (Lawyers Title Insurance Corp., Commonwealth Land Title Insurance Co., and United Cap- ital Title Insurance Co.) did not in fact file for bankruptcy protection at all. Instead, the LandAmerica title insurance subsidiaries are, for all practical intents and purposes, carrying on business as usual. Ap- parently, it was steep investment losses at LandAmerica 1031 Ex- change Services that brought the LandAmerica Group down, not claims or operating losses at any of the title insurers. Indeed, there is every indica- tion that LandAmerica's title in- surance subsidiaries continue to be viable, having been sold as go- ing concerns pursuant to a share deal announced concurrent with the Chapter 11 bankruptcy filing. Although other title insurers also threw bids into the ring, the shares of LandAmerica's title insurance subsidiaries were ultimately sold at the end of December for a combined purchase price of ap- proximately US$30 million to Chicago Title Insurance Co. and Fidelity National Title Insurance Co., both subsidiaries of Fidelity National Financial Inc. Of the three title insurance underwriting companies sold by LandAmerica pursuant to its bank- ruptcy filing, only Lawyers Title is licensed to underwrite in Canada. Lawyers Title has a relatively small market share in Canada, but has always enjoyed a loyal commer- cial customer base in this country. This is, no doubt, because its vice president and national counsel for Canada, Kareen Colbert, is one of the most knowledgeable, compe- tent, and experienced title insur- ance counsel and administrators in the country. To this day, some three months after the bankruptcy protection, Lawyers Title con- tinues to do business in Canada, all seemingly as usual. Dirt By Jeffrey W. Lem Of course, the balance of the Canadian title insurance industry has had its hands full with dam- age control since the LandAmer- ica bankruptcy filing. John Rider, a vice president of the commercial division of the Canadian arm of First American Title Insurance Co., and whose name is pretty well synonymous with commer- cial title insurance in Canada, confirms his company's continu- ing financial stability by noting that, "With by far the largest share of the Canadian title insurance market, First American maintains an A.M. Best financial strength rating of "A-" (excellent)." Likewise, Kathleen Waters, now president and CEO of LawPRO (but before that the longtime head of TitlePLUS), takes great pride in the fact that TitlePLUS maintains an 'A' (excellent) A.M. Best finan- cial strength rating. Stewart Title Guaranty Co. does not maintain an A.M. Best Co. Inc. financial www.lawtimesnews.com strength rating, making direct com- parisons to its competitors some- what difficult, but Dimple Gre- wal, a spokesperson for the Stew- art Title, notes that the company has ". . . the largest policyholders' surplus . . . of any title insurance underwriter" and has strong finan- cial strength ratings from other fiscal rating agencies. Damage control was probably a little harder over at the FNF group offices (including Chicago Title, the only title insurer in the FNF group to be currently underwriting in Canada) because their former 'A' (excellent) A.M. Best financial strength ratings were recently put under review with negative implica- tions. However, Patrick Squire, vice president of commercial operations and the undisputed "go-to" guy for the commercial side of Chicago Title's Canadian business, explains that "this rating review status is not a downgrade per se, but rather merely a prudent precautionary measure reflecting the added lever- age and integration risks associated with the proposed acquisition of the LandAmerica title insurers by members of the FNF group." The evidence seems to sup- port Squire's optimism. A.M. Best would likely have put any purchaser under such a rating re- view simply to reflect the obvious financial and logistical hurdles in swallowing and integrating such a large business. If the stock market can still be relied upon as a meas- ure of anything these days, then it should be noted that FNF's share price surged 24 per cent on the announcement of the potential deal to acquire LandAmerica's title insurance subsidiaries. Even though the LandAmer- ica bankruptcy was not caused by a failure of a title insurance underwriter per se, LandAmer- ica's recent economic woes spell a sea change for the title insurance industry as we know it in Can- ada. This author predicts that, in the post-LandAmerica environ- ment, credit rating reviews will now precede every major title insurance underwriting, and for the really large deals, we can also expect customer-driven reinsur- ance and/or co-insurance as a matter of course. Even the title insurers are cursed to live in interesting times. LT Jeffrey W. Lem is a partner in the real estate group at Davies Ward Phillips & Vineberg LLP. His e-mail address is jlem@dwpv.com.

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