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January 18, 2016

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Disciplined real estate lawyer fights back Court extends Mareva order against properties BY NEIL ETIENNE Law Times T oronto real estate lawyer Oscar Choi-Wah Wong, who was found by a Law Society of Upper Canada disciplinary tribunal in 2012 to have improperly abdicated his re- sponsibilities to his real estate cli- ents, has successfully extended a Mareva injunction against a real estate agent allegedly involved in the matter. Justice Robert MacKinnon of the Ontario Superior Court of Justice announced the ruling just prior to the new year, providing what some lawyers call an "ex- traordinary" and infrequent mea- sure to bar the real estate agent from transferring, encumbering, or otherwise dealing with seven listed properties without expressed written consent of Wong or leave of the court. Ross Macdonald, defence coun- sel for real estate agent Grace Lee, has filed a notice of motion for leave to appeal the injunction to Divisional Court. He says that the court erred by not taking into account that Lee had purchased property in 2015, selling four or five condos and purchasing anoth- er four, meaning she had about 15 condo properties in her name. "I was absolutely f labbergasted by the order that was made," Mac- donald says. "My thought was, in view of that, granting a Mareva injunction on the basis of dissipating assets is completely out of the ballpark." Joel Watson, partner with Shibley Righton LLP, says a Mareva injunction can be a powerful tool, particularly in fraud matters when a court finds sufficient evidence that an asset might be liquidated, even if ultimately it is determined at trial that no wrongdoing had occurred. "Mareva, like an Anton Piller [order], is an extreme order of the court; it's an intrusion on some- body's property before trial has happened," Watson says. Watson speculated that the in- T he 120 amendments to the Planning Act and the Development Charges Act, 1997 found in Ontario's Bill 73, which were passed in early December, represented the most significant changes to the province's land use and development laws in about a decade. In tabling The Smart Growth for Our Com- munities Act, 2015 early last year, the Liberal gov- ernment promised that the legislation would give residents more say in how their communities grew, set out clear rules for land-use planning, give mu- nicipalities more independence in local decisions, and make it easier to resolve disputes. To these ends, the amendments to the Planning Act impose a two-year moratorium on certain de- velopment applications, narrow the scope of ap- peals to the Ontario Municipal Board, allow mu- nicipalities to invoke alternative dispute resolution techniques before matters proceed to the OMB, and extend the initial review period for official plans to 10 from five years. Whether the legislation will achieve its aims, however, remains to be seen. "Bill 73 — primarily the goals of providing more transparency to the public and more tools for municipalities to control development in their cit- ies — is well intentioned, but there are many open questions as to how the changes will be imple- mented, and implementing some of them could be problematic," says Maggie Bassani of Stikeman El- liott LLP in Toronto. Catherine Lyons of Goodmans LLP believes that Bill 73 contains some components that have not been thought through carefully enough. "The legislation is a bit of a reactive response to the length and complexity of the hearings aimed at bringing official plans in Ontario into conformity with the province's growth plan," she says. The Places to Grow Act came into force in 2005. It mandated growth plans that identified where and how growth should occur within a region. Since then, municipalities have been scrambling to rationalize their official plans with regional growth plans. "Milton, for example, is still without a new of- ficial plan, although its conformity amendment was adopted in 2010," says Mark Flowers of Davies Howe Partners LLP in Toronto. Of particular concern is Bill 73's two-year moratorium on development applications, which includes applications for minor variances after a developer has obtained a site-specific rezoning. "It's inevitable, for example, that during con- struction there will be changes that require a vari- ance, but Bill 73 doesn't allow such an application for two years from the time the property was origi- nally rezoned for development," Bassani says. "All the developer can do then is rejig the project so as to fit within the original rezoning." To be sure, the legislation allows municipal councils to override the prohibition by resolution. FAULT DETERMINATION Court rules on loss transfer case P3 MCMILLAN SHUFFLE Firm adopts new management structure P4 FOCUS ON Real Estate P9 See Real, page 2 See New, page 2 Joel Watson says 'a Mareva injunction can be a powerful tool, particularly in fraud matters.' PM #40762529 $5.00 • Vol. 27, No. 2 January 18, 2016 L AW TIMES & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM Implementing new law could be 'problematic,' says Maggie Bassani. Developers face moratoriums Municipal lawyers gear up for change BY JULIUS MELNITZER For Law Times A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY CANADIANLAWYERMAG.COM/LEGALFEEDS FEEDS LEGAL POWERED BY LegalFeeds_LT_Dec1_14.indd 1 2014-11-26 9:44 AM

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