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 ......... Heather Gardiner 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 Judges give lawyers a dressing down Cuskey right when he said female lawyers enter their courts clad in "skirts so short that there's no way they can sit down, and blouses so short there's no way the judges wouldn't look." One possible translation: the poor lads on the bench have met their matches when the clever temptresses of the law sashay into their domain. Except, the issue was raised recently D by one of their female colleagues, U.S. District Court Judge Joan Lefkow, who said lawyers of the feminine persuasion should pay heed to how they dress for court, noting one such offender turned up before her looking like she stopped in "on her way home from the gym." Lefkow made the casual observation during a panel discussion at the Sev- enth Circuit Bar Association meeting, which promptly erupted into a bit of a judicial whine and cheese party. o Illinois' judges have atten- tion deficit disorder? Or was Judge Michael Mc- As the crescendo of complaint rose, Judge Benjamin Goldgar noted the is- sue is a "huge problem." In fact, so huge a problem, he lamented that sometimes he wishes he could tell the female law- yer before him, "I'd really like to pay at- tention to your argument." Warming to his subject, Goldgar continued, "You don't dress in court as if it's Saturday night and you're going out to a party. Dress as a serious person who takes the court seriously." Fortunately, Goldgar turned out to be an equal opportunity nitpicker, noting that male attorneys who appear with goofy ties like those with smiley faces also cross the line. (Neckties with Bugs Bunny in vari- ous poses; cheap, tight, shiny suits; and feet shod in worn-out Wallabees or brothel creepers are my personal court- room male fashion crimes.) The average age in the room was esti- mated to be in the 50s, and naturally the problem was eventually pegged as a "cul- tural" issue with those darned younger lawyers the perpetrators. Some blamed law firms for not giving their legal hatchlings enough guidance as to what to wear, while others alleged the law schools should do a better job of telling the up-and-coming lawyers how the cool kids dress for court. While it's easy to poke fun at this fashion tempest, the judges do make a good point. And it's a cross-border is- sue. But, as you can see in Glenn Kauth's story on page 10, the Ontario Criminal Lawyers' Association has found a great answer: a new training and mentorship program to provide tips for young law- yers on how to do their jobs better. "Criminal law articling jobs have evaporated with the degradation of the [legal aid] tariff against the cost of liv- ing. They're starting out without that first solid year of mentoring," CLA pres- ident Frank Addario told Law Times. So, in a neat event, lawyers with between zero and six years' experience were partnered up with some seasoned professionals for guidance on an array of things they need to know to run a successful practice. The erosion of decorum arose at the event as well, something senior Toronto lawyer Marcy Segal said she's noticed. This includes issues like dressing ap- propriately in court and whispering and talking whilst someone else is address- ing the judge. "The courtroom really is a play within itself, and we're not seeing that anymore," she said. "I think it's our duty," she adds of her great decision to become a mentor. Meanwhile, there was no word on what the Illinois judges were wearing while making their points, but maybe they should look to Canada where robes even the playing field. Or, try the CLA's fantastic idea on for size. — Gretchen Drummie reaction to the April 6 British Columbia Court of Appeal de- cision in Gill v. Bucholtz. This unanimous decision was deliv- ered by Justice Mary Newbury, overturning the 2008 trial deci- sion of Justice Geoffrey Barrow and, along with it, the long- standing risk allocation para- digm that had been applicable in B.C. whenever a fraudster forged title in that province. The facts in the case are typ- T ical of most title frauds (almost all of which are in fact mortgage frauds). Amritpal Singh Gill was a true owner. An unidentified fraudster forged Gill's signature and conveyed Gill's property to an accomplice. The accomplice then applied to the Bucholtzes, innocent mortgage lenders, for a mortgage loan on the property. The fraudster absconded with the mortgage proceeds, leaving Mortgages demoted to 'nemo dat' status in Lotusland The he mortgage lending bar in Lotusland is in a tizzy these days in all the innocent "true" owner in a title battle against equally inno- cent mortgage lenders. At trial, the British Columbia Supreme Court agreed that Gill could compel the return of title from the fraudster, but not free and clear of the Bucholtz mort- gage. Since the mortgagee ad- vanced on the strength of the register and was not otherwise aware of or partaking in the fraud, the mortgagee's interest had become indefeasible — while Gill might have applied for assurance fund compensa- tion for the encumbrance not of his making, he could not divest the innocent mortgage lenders of their security in the property. The trial holding in Gill was consistent with earlier B.C. decisions (most notably, Kwan v. Kinsey) validating the innocent mortgage lender's interest, even if the title to the mortgaged property could be traced to a fraud. Dirt By Jeffrey W. Lem On appeal, however, the B.C. Court of Appeal reversed the trial court's decision as it related to the validity of the mortgage. While, the Court of Appeal left intact the trial court's decision to return the title to Gill, it held that such title would also be free and clear of the mortgage. The appeal court noted that changes to B.C.'s Land Title Act brought about by the Miscellaneous Statutes Amendment Act (No. 2) in 2005 had the effect of bi- furcating the indefeasibility of interests under the Land Title Act so that only fee simple in- terests enjoyed indefeasibility under the act, while all lesser interests (such as that of a www.lawtimesnews.com mortgage lender under its charge) did not enjoy the same indefeasibility protections. Instead, mortgages and other lesser interests were subject to the common law principle of nemo dat quod non habet, and since the Bucholtzes took their mortgage interest from a fraud- ster who had no title to give, Gill was entitled to have his title restored free and clear of the Bucholtz mortgage. The appellate decision in Gill gives greater protection to B.C. property owners from fraudsters, but it is a troubling decision for the province's mortgage lenders. The appellate holding appears outwardly similar (at least in result) to the infamous Ontario Court of Appeal decision in Lawrence v. Wright where a rare five-member panel of the court confirmed Ontario to be a so- called "deferred indefeasibility" jurisdiction (a holding also more or less ratified by concurrent June 1, 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. legislation in Ontario). But the similarities between the respective appellate court ap- proaches in Lawrence and Gill pretty well end at the consistency of their holdings. Although both courts reinstated the titles of the defrauded original prop- erty owners free and clear of the mortgages, the Ontario Court of Appeal did so by way of a "de- ferred indefeasibility" analysis, whereas B.C.'s top court achieved the same outward result by rel- egating mortgagees and other lesser interests to nemo dat status. This is a surprisingly vulnerable position for Canada's west coast mortgage lenders and their title insurers, and only time will tell if this vulnerability ultimately translates to higher mortgage fi- nancing costs in Lotusland. 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.

• Cover
• Self-regulation At Stake
• Tizzy In Lotusland
• Focus On Criminal Law