Tuesday, October 25, 2016


Reason #1: It's the law in Ontario to have a lawyer represent you. It's not a scam by lawyers to make business for themselves. The law of Ontario requires that every buyer and every seller of real estate be represented by their own lawyers (unless the area is remote, where one lawyer might be able to do both sides of the deal). It's true that lawyers aren’t required to be involved in every real estate transaction in a lot of other jurisdictions. But if you consider that real estate is likely the most expensive thing you'll ever buy in your life, unless you're really into rare luxury cars or mega yachts, then the fact that you'll be paying a fraction of a single percent of the purchase price in legal fees seems sensible if it protects your investment. Believe it or not, lawyer do stuff on a real estate deal beyond print out a lot of paper that you're required to sign.

Reason #2: There may be legal problems with the title to the property. Most people now hire home inspectors to check out their dream residence for fatal building flaws. Your lawyer is there to help minimize nasty surprises over fatal legal flaws. Like that there's a registered right of way for an oil pipeline through your backyard. Or that half the garage that comes with the property is actually located over the neighbour's lot line. Or that two liens for non-payment of large debts are registered against the property.

Reason #3: You need to borrow money to buy the property. Very few of us are able to pay cash for real estate, unless we're buying bare land or a really run down house in a very cheap location. But anyone lending you a large sum of money to buy a property is going to want to register a mortgage against the property to secure the debt. And placing a mortgage on a property requires a lawyer, in part to make sure there aren't other priority claims already registered against the property in which case your lender might not be willing to lend, or might only lend at a much higher rate of interest if it doesn't get first priority against the property. 

Friday, July 22, 2016


With the recent release of the Federal Court of Appeal’s decision in Gitxaala Nation v. Canada, 2016 FCA 187 finding the Government of Canada failed in its duty to consult Canada’s Indigenous peoples concerning the Northern Gateway Pipeline prior to approving the project, the important legal issue of the duty to consult is back in the public eye. Although the issue was first highlighted in 2004 by the Supreme Court of Canada’s twin decisions of Haida Nation v. British Columbia and Taku River Tlingit First Nation v. British Columbia, the Court's findings that no consultation was inadequate for the Haida but quite limited consultation (in the words of one official I know who had first-hand knowledge of the process) was adequate for the Tlingit left more questions unanswered than answered.

That the duty to consult may have recently overtaken all other Indigenous rights in the public mind is demonstrated by one National Post writer suggesting a few days ago: “Section 35 of the Constitution has evolved into a duty to consult native populations.” While that might not be quite the case, that conclusion seems to be indicative of where Indigenous rights victories have most frequently of late been occurring in the courts. 

I've been fortunate to have had the opportunity to spend a lot of time thinking about the boundaries of the duty to consult while listening to the views of those within federal and provincial governments, from First Nations, and from members of the public and industry as a result of my work as both a negotiator and as legal counsel to First Nations and to the Government of Canada on Aboriginal rights issues in British Columbia, Manitoba, Ontario and Atlantic Canada. From that experience, here's my short list of the top three things not to do if you hope to fulfill the duty to consult Indigenous peoples in Canada. 

1. THINK IT’S ONLY ABOUT MUFFINS AND COFFEE. The majority of the Federal Court of Appeal in Gitxaala found: “Meaningful consultation is not intended simply to allow Aboriginal peoples to ‘blow off steam’ before the Crown proceeds to do what it always intended to do. Consultation is meaningless when it excludes from the outset any form of accommodation.” 

I only took up drinking coffee while serving as a Federal Treaty Negotiator in British Columbia. It served as a welcome break from negotiating table tension in rooms that in days gone by might have had chain smoking negotiators working out solutions to age old challenges. And muffins always seemed to be an important complement to the coffee when the host party had the budget to spring for them. 

But the Federal Court of Appeal has now confirmed for us what we all should have already known. Meeting for the sake of meeting doesn’t cut it so that the government can check a box and claim Indigenous peoples have been “consulted.” The Court found the few meetings that happened on Northern Gateway were “brief, hurried and inadequate” and that the government officials present were not “empowered to dialogue on all subjects of genuine interest to affected First Nations, to exchange information freely and candidly."

2. IGNORE WHAT YOU WERE TOLD DUIRNG THE CONSULTATIONS.While it falls to federal or provincial governments to compile and somewhat summarize what they're told during consultations, the Federal Court of Appeal has now indicated that “recommendations, including any new proposed conditions, needed to be formulated and shared” for the industry proponent’s own input. Then “finally, these recommendations and any necessary information needed to be placed before the Governor in Council for its consideration” who must in turn have “provided reasons for its decision to fulfill its obligations under … the duty to consult.” 

Thus just as the dialogue process is about more than muffins and coffee, the back end of the consultation process is about much more than just sticking everything you’ve heard in a binder or database that will never again see the light of day. The input must be analysed to assess if changes to the originally proposed plan of action are needed, industry proponents must be given a chance to comment on what was heard during the Indigenous consultations, and the onus is on the government in its final decision to justify why and how it's met its consultation obligations.  

3. THINK THE LAW IS SETTLED AND THAT THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES WON’T INFLUENCE CANADIAN LAW. When the new Government of Canada finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, Canada’s Indigenous Affairs Minister stated: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution” and that it was “breathing life into Section 35 and recognizing it as a full box of rights for Indigenous Peoples in Canada.” 

Some of the earlier political opposition to the Declaration seemed to proceed under the falsehood that it contained an absolute veto. I worked long enough in the international law world to know that if the UN really wants anyone to have a veto (like the five permanent members of the Security Council), it says so. There is no stated veto in the Declaration, only important principles of respect, equality, dignity and redress for past injustices.

The Declaration has always been a highly progressive document, whose purpose is alluded to in its preamble where the signatories state they are “Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith.” Can one really argue with such principles?

Canada earlier got tied up in all sorts of knots over the precise legal meanings of lots of the Declaration’s aspirational affirmations, all of which must however be read in the context of the totality of the document which acknowledges the undeniable reality that “indigenous peoples have suffered from historic injustices as a result of … colonization and dispossession of their lands” and that the signatories are “Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring an end to all forms of discrimination and oppression."

The Declaration is a ground breaking legal document, that will undoubtedly influence the future development of Canadian law, including the interpretation and implementation of the duty to consult. All we can be certain of for now is that the duty will continue to evolve, and be clarified by the Courts and possibly Parliament. We would be making a grave error to think that the law on the duty to consult is even close to being settled. 

Tuesday, July 19, 2016


There comes a time in all our lives when we receive some kind of official pronouncement that we disagree with. Being rejected for a licence or permit. Being told that we don’t have the rights we thought we had. Losing in a civil money dispute, in family court, or even at a trial for a criminal or regulatory offence.

We might find the result hurtful and unjust. We might be outraged. And we might remain firm in our convictions over the justness of our cause!

Some will just swallow the defeat and move on. But others will want to continue the fight.

Most of the world’s legal systems have created fairness check mechanisms on first level decisions, regardless of who is making the decision or what subject the decision relates to. The buck almost never stops with the government desk officer, the hearing tribunal, or the trial judge. At least one level of appeal of an adverse decision is almost always possible if you look hard enough for an appeal route. 

A psychologist could probably give you a helpful take on the emotional toll that fighting on entails, and what kind of person is more likely to continue to fight rather than throw in the towel. But my professional focus is solely on whether and how the continued fight can be won. 

In the over two decades I’ve been helping clients with appeals (and watching others by necessity or choice represent themselves), I’ve seen lots of missed opportunities for winning appeals because of deadly but completely avoidable mistakes that people make shortly after receiving that decision they want desperately to overturn. Here are a Canadian appellate lawyer’s insider tips for five things you should never do (and I frequently see done again and again) if you want to continue the good fight, which should help you out regardless of where you live. 

1. BE LATE TO THE PARTY. It doesn't matter how great your arguments might be; if you're late on an appeal, you're almost always out of luck. And some appeal filing periods can be crazy short. Like 7 days from the decision. Usually you've got 30 days; occasionally as long as 90 days. In that time, you’ll need to find a lawyer (or figure out the process yourself), get a copy of the decision and the materials that were reviewed in making it (you might need to order transcripts or request government records), draft plausible grounds for appeal, track down the responding party to serve the appeal notice on, and file the notice with the office, tribunal or court hearing the appeal. 

2. GET LOST FINDING THE PARTY. There are more places out there to appeal to than you might expect. In federations like Canada or the U.S., you need to figure out if you’re going to a provincial, state or federal appeal body. You might also need to determine if you’ve got a final order or interlocutory (interim) order, as believe it or not their respective appeals might go to different places. After being late, appealing to the wrong place is probably the most common completely avoidable reason for failed appeals. I’ve seen enough lawyers get the appeal route wrong. Sometimes, even the courts themselves disagree over which one of them should be hearing an appeal!

3. THINK IT'S SIMPLY ANOTHER KICK AT THE SAME CAN. The time to make your best pitch is with the first instance official, tribunal or court. Appeal bodies love the word “deference” to lower officials, and will liberally use that word against you if you don’t give them very good reasons why they should overturn a lower decision. You can’t usually appeal errors of fact, only errors of law (though it’s possible to turn big enough factual errors into errors of law). So it’s deadly to try to appeal on the basis that you think a decision is merely wrong, stupid, or misguided. Even if the person you’re appealing to is inclined to agree with you, she can’t simply substitute her own decision for the decision of the lower official. There has to be some kind of significant legal error you point out that is worth interfering with. 

4. ASSUME YOU'VE GOT AN EVEN SHOT. Casino gamblers and appeal gamblers both sometimes suffer from magical thinking on odds not rooted in reality. And while its easy to get stats on roulette with a double zero having a 5.26% house edge, it’s a lot more difficult to pin down precise odds on appeals. They’re definitely less than 50-50. Your best shot at winning is always at first instance - when you originally submit that government form or appear before that tribunal or trial court - not on appeal. In Canada, the odds of getting some kind of remedy out of an appeal are probably somewhere between 1 in 3 and 1 in 4, based on available appellate court data. If the stakes are high, those aren't such bad odds. But if you're fighting about a minor issue, you need to reflect on whether the financial and emotional cost is really worth it. 

5. ONLY MAKE ONE ARGUMENT. You might think you've found that one killer, slam dunk argument for an appeal. The one that no one could reject. But not everyone sees the world as you do. So even if a reviewer has sympathy for your cause, she may not buy your one argument wonder. Come up with more. I often come up with a dozen or more possibly viable grounds of appeal for clients. Sometimes we whittle that number down a bit for the actual appeal argument, but which of those arguments appeal officers and judges seize on as the winning strong argument continues to surprise me, so it never pays to limit your arguments other than eliminating the ones that stand no chance of success. 

To read more, see my appeals law blog

Monday, July 4, 2016


Credit: "Neighbors (2013) Poster" by Source. Licensed under Fair use via Wikipedia

If you go by the number of court cases I'm involved in helping folks defend themselves against neighbour actions or lawsuits over fences and shrubberies, you'll realize that the old adage "good fences make good neighbours" is patently false. I've got lots of examples of neighbours taking great offence when one neighbour decides to legally erect a fence along (but usually not even resting on) property lines. Other cases arise when a neighbour decides to trim a tree overhanging her property, or move a couple of shrubberies, or exercise a longstanding right of way over a neighbour's property to get to her own landlocked property.

In a perfect world, any of these actions would involve neighbours calmly and politely talking out their concerns, and not having to resort to hiring me to go to court for them. But of course we don't live in that mythical perfect world. People hold grudges and nurse petty grievances. People act unreasonably, even when their actions and reactions aren't logical and aren't in their own financial and human relationship best interests.

You might think people would carefully consider whether spending $10,000 (or even $40,000) fighting over a shrubbery, and in the process totally poisoning a relationship with a neighbour whose help you might actually need in the future, was really worth it. But we all know that hearts rule rather than heads, and that emotions get the better of people time and time again, even when what they are doing really makes no sense.

And even if sense does later enter into the equation, once they are $10,000 down the legal litigation superhighway, it can be very difficult to put the brakes on that Litigious Lexus. Far easier to keep the pedal to the metal, and burn through another $10,000 in lawyer gas, and then another $10,000.

I'm happy to say my clients don't start frivolous litigation, or take ridiculous actions against their neighbours. I'm not speaking as someone with blinders on. Rather, I just seem to attract those who are getting the short end of the stick. And I refuse to represent anyone who won't listen to at least some reason, because they won't be clients whom I can help. They're still entitled to legal representation, I just don't have to be the one providing it.

So what's to be done when you're on the receiving end of a property neighbour legal dispute in order to minimize cost and hassle?

1. Try to deescalate the dispute before it gets to court. I know this is easier said than done, but many believe court will offer a quick and inexpensive or at least definitive fix to the problem, and usually none of those assumptions are correct. Disputes can drag for years in court, at huge cost, and then the court might not even offer a ruling on all the issues in dispute.

2. Try to keep the dispute in Small Claims Court, where your legal fees will be much lower because the process is much quicker. Unfortunately, Small Claims Court won't determine questions of rights in land itself. It only determines questions of money owed - such as from cutting down a prized tree that the neighbour didn't have the right to cut.

3. Don't try to represent yourself in court on the dispute. I'm not making this suggestion from the perspective of a lawyer who earns his living from clients who hire me to go to court for them, but rather as a person who sees countless courtroom disasters caused by smart people trying to navigate the highly complex legal system by themselves. No one tries to do open heart surgery by themselves. No one with any sense even tries to set a broken bone by themselves. So why try to do the legal equivalent by yourself? The patient is going to die, or at least wind up far sicker than he was before the start of treatment.

4. Keep scrupulous records of all events and interactions with the neighbour and authorities over the issue. Recording names, dates, places and detailed descriptions, including taking photos (and maybe video) are needed. These records will be key to ensuring your evidence of your side of the story is believed in court.

5. Be constantly considering what a reasonable settlement offer would look like right from the start. "Reasonable" means not just to you, but to the neighbour. What's going to be attractive to the neighbour, but still get you at least some of what you want? Because you really, really want to avoid going to court in such matters, and really want to shorten as much as possible the time such a dispute spends dragging through court.

6. Check if you bought a title insurance policy when acquiring your property, and considering making a claim on it. Title insurance was only being introduced into Ontario when I started practicing law, and remains a newer product that most people now purchase (because of the relatively low cost) but don't always think about when neighbour disputes arise. The coverage of these policies vary greatly, so it's important to speak to your lawyer and the title insurer about what may or may not be covered. Stewart Title and First Canadian Title are likely the two largest issuers of such policies in Ontario.