Law Times

December 14, 2015

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Advice for building a new Court Challenges Program BY NEIL ETIENNE Law Times anada's Court Challenges Program has a pulse, thanks to the son of its founder. Originally established by for- mer prime minister Pierre Trudeau in 1978 and twice struck from the books, new Prime Minister Justin Trudeau has deemed it a priority to kick-start the legal program that the Conservatives scrapped. e potential rebirth has mem- bers of the legal community ex- cited to see what the new version will entail. Many hope it will be at least as effective, if not go beyond its previous focus on language and equality rights. "e Canadian Bar Association was a longtime supporter of the Court Challenges Program, has always supported it, and has seen it as a fundamental institution in Canadian democracy," says Sarah Lugtig, chairwoman of the Cana- dian Bar Association's standing committee for access to justice. Lugtig knows the program well. She is the director of experiential learning with the University of Manitoba's faculty of law and a for- mer director of the equality rights program portion of the Court Challenges Program. She says if reintroduced, the CBA hopes the program main- tains its original power "to support the effectiveness of constitutional rights, official language rights, mi- norities, and historically disadvan- taged individuals and groups who are seeking equality in Canada." In his mandate letter to Attor- ney General and Minister of Justice Jody Wilson-Raybould, Trudeau re- quested that the minister work with the Ministry of Canadian Heritage in re-inventing a modern version of the program killed by the Harper government in 2006. It had also been struck down in 1992 by Brian Mulroney's government when it was deemed too expensive and not necessarily vital to maintain as it had successfully seen to the initiation of a significant number of cases. e subsequent Liberal govern- ment once again reinstated the pro- gram in the mid-1990s until it was canned in 2006. It was first created in the late 1970s to provide fund- ing for official minority-language COMING TO Canada's leading in-house counsel explore their challenges for the year ahead BROUGHT TO YOU BY 2 0 1 6 VIEW Chris Hoeschen UrtheCast January 4 Philip Moore TD Bank January 18 Marni Dicker Infrastructure Ontario December 28 Genevieve Richard Belron Canada January 11 Untitled-1 1 2015-12-07 3:14 PM Ontario appeal court distinguishes Sattva ruling Title insurer must pay to rectify 'unsafe' building due to illegal renovation BY JIM MIDDLEMISS Law Times homeowner who was issued an order by the city to remedy an unsafe building, because a previous owner had illegally removed a support wall, can tap his title insurance policy to cover the repairs, the Ontario Court of Appeal has ruled. While the decision in MacDonald v. Chicago Title Insurance Company of Canada will no doubt delight the real estate bar, the case is probably going to have a bigger impact for litigators because of the court's find- ing that standard-form contracts are subject to the less stringent standard of appellate review known as correct- ness, rather than an overriding palpable error. e rul- ing is one of those "rare" cases that can be distinguished from the Supreme Court of Canada ruling on contrac- tual interpretation in Sattva Capital Corp. v. Creston Moly Corp. Gardiner Roberts LLP litigator Gavin Tighe, who along with Alexander Melfi represented the home- owners in their appeal of a lower court ruling, says the Sattva portion of the ruling is "hugely important" to litigators. "I think what we are seeing is the law tak- ing into account that general blanket rules never work and you have to look at the particular case on its own particular merits." Especially when it comes to pre-printed standard contracts, it "really doesn't make sense to apply that sort of blanket deferential analysis," he says. "Title insurance is probably at this point in time one of the most widely distributed insurance policies in the country," Tighe says, noting that almost every home purchaser obtains both title and fire insur- ance coverage. However, he says, the scope of what title insur- ance actually covers remains a bit of a mystery, since there is a lack of case law on the topic in Can- ada, given that the product is still relatively new to the marketplace. "I think there's been a major gap in the law on ti- tle insurance, given the incredibly widespread use." is case, he says, casts light over that shadow. Real estate lawyer Bob Aaron adds that the case is a "big win for homeowners." He says it means that if "there was illegal work done in the house that didn't comply with the building code, the title insurance policy would cover a post-closing work order from the city." Aaron says the MacDonald ruling "changes a lot of litigation in progress. ere might be a lot of settle- ments coming up pretty quickly." Real estate lawyer Michael Carlson adds that title insurers have narrowly interpreted their poli- cies when it comes to marketable title and limiting coverage to instances where homeowners are forced by a government authority to remove or remedy a structure under s. 8 of the Ontario Building Code Act, which specifically deals with permitting require- ments, as opposed to a s. 15(4) order, which deals with a finding that a building is unsafe. "is position has been taken time and time again by these companies and my reading of MacDonald is that this argument will no longer carry any weight with the court." e MacDonalds bought a Toronto, multi- LSUC INVESTIGATIONS Complexity adding to length of process P2 CONVOCATION Benchers tackle strategic plan P4 FOCUS ON Criminal Law P9 Gavin Tighe and Alexander Melfi represented the homeowners in their fight over title insurance coverage. Photo: Robin Kuniski See A chance, page 5 See Sattva, page 5 'If nobody is holding government account- able, it's quickly obvious that the rights aren't meaningful,' says Sarah Lugtig. PM #40762529 $5.00 • Vol. 26, No. 40 December 14, 2015 L AW TIMES A C & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM

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