STILL GETTING SPAM EMAILS? YOU CAN DO SOMETHING ABOUT IT - THE LAW WILL HELP

Rogers Media Inc. (“Rogers”) recently paid $200,000 as part of a settlement involving the CRTC for Rogers’ alleged violations of Canada’s anti-spam legislation (“CASL”). 

The CASL requirements about Commercial Electronic Messages (“CEMs”) have been the law since July 1, 2014.

Rogers is not the first to be fined. Porter Airlines paid a significant penalty earlier ($150,000). A company called Compu-Finder paid a very significant $1.1 million earlier for “spamming” businesses.

The CRTC alleged that Rogers had:

  • sent CEMs either containing an unsubscribe mechanism that did not enable the person to indicate their wish to no longer receive messages, or that was not able to be “readily performed”;
  • sent CEMs for which the unsubscribe mechanism did not contain an electronic address that was valid for the required minimum of 60 days after the message was sent; and
  • failed to give effect to unsubscribe requests within the required 10 business days.

Rogers settled – perhaps wisely. 

Rogers agreed to other remedial measures, too, such as updating and implementing a better internal compliance policy for spamming, reviewing and revising its written policies, developing training programs and registering and tracking all complaints related to CEMs and their resolution.

Individuals are not immune for anti-spamming law in Canada. Up to $1,000,000 per infraction for individuals and up to $10,000,000 per infraction for corporations.

CASL is administered through a complaints-based system and the CRTC provides a Spam Reporting Centre for the submission of complaints. 

Individuals and businesses utilizing CEMs should review the requirements of the CASL to ensure they are complying with the legislation.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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AN ILLEGAL RENOVATION BY THE FORMER OWNER - FINALLY, A VICTORY FOR HOMEOWNERS AGAINST THE INSURANCE CO. - UNSHROUDING THE MYSTERY OF THAT TITLE INSURANCE POLICY

You just bought a new house.

When you bought it, you likely purchased title insurance. Most do, these days.

Title insurance policies in Ontario are extensively used for home buying, but the law has not kept pace on these types of policies, what they mean, what they actually cover, and the like. There is a gap.

Title insurance remains somewhat of a mysterious insurance policy in Ontario, including for many lawyers. There simply have not been enough cases about the scope and true coverage of title insurance policies to understand them fully and properly. Of course, this presents risk to both new home buyers and the lawyers who represent them.

Enter the Ontario Court of Appeal recently. 

Title insurers typically narrowly interpret their policies when it comes to the scope of coverage available. Often the scope of coverage relates to “marketable title”. Generally, title insurers tend to limit their scope of coverage position to cases where the homeowner is forced by a government authority to remove or remedy a structural defect, pursuant to section 8 of the Ontario Building Code Act, which specifically addresses permitting requirements, as distinct from a sub-section 15(4) order against the homeowner, which addresses a building that is determined to be unsafe. Title insurers often take this position, but now they will not be able to do so.

The case: MacDonald v. Chicago Title Insurance Company of Canada (Ontario Court of Appeal, 2015).

The homeowner was issued an order by the municipality to remedy an unsafe building, created because a former owner of the property had illegally removed a supporting wall.

The homeowner’s title insurer denied the claim.

Eventually the case made its way to the Court of Appeal, who disagreed with the lower Court and ordered that the title insurance was liable for the cost to remedy the unsafe defect in the home. The homeowners were also awarded costs for their appeal and the lower Court process.   

Effectively, this means that if is illegal work done in your home by a former owner that did not comply with the building code at the time, your title insurer (assuming you purchased title insurance when you bought the property), should be covering the cost of a post-closing work order issued by the municipality.

Good to know.

This WARDSPC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

 

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BEING ADDED TO A JOINT BANK ACCOUNT FOR AN ELDERLY PARENT OR FRIEND - BE CAREFUL!

Often an elderly person, or person who is in need of some financial management assistance, adds an adult child or family member to a pre-existing bank account, making it a joint bank account.

Commonly there is no paperwork made when this is done, such as the elderly person indicating, in writing, whether:

-     the intention is only for assistance in managing the accounts funds, such as paying bills, etc.

-     compensation is to be received by the added person

-     if the elderly person dies, if the funds remaining in the account are to be a gift to the added person and pass to that person by joint survivorship

In fact, often there is nothing in writing verifying the arrangement, which regularly creates conflict and, sometimes, litigation between the person who is added to the account and the elderly person’s family members, usually after the elderly person passes.

If you are added to a pre-existing joint bank account, for example, you could be assuming a fiduciary duty to the person who adds you, which brings with it duties at law that expose you to claims by others.

What is a fiduciary? Generally, the legal definition is:

a)   a person who has scope for the exercise of some discretion or power;

b)   a person who can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and

c)   the other person (the beneficiary) is vulnerable to or at the mercy of the fiduciary holding the discretion or power.

The person added to the account can face allegations in a lawsuit that:

(i)      the person added, who is often an adult child, had or acted in a fiduciary relationship to the elderly parent (in the management and operation of the joint account);

(ii)     the person breached that fiduciary duty by, for example, making payments to himself or herself, or making payments that had some benefit to that person in some way;

(iii)    the added person should be held liable to repay the amounts for breach of fiduciary duty and breach of trust;

(iv)    the added person should be required to provide a full accounting for the management and operation of the joint account, repay money paid to himself or herself, damages for breach of trust and fiduciary duty and, sometimes, punitive damages are claimed, too.

There is no definitive law in Ontario about whether, for example, an adult child added to a joint bank account is automatically a fiduciary and trustee de son tort and, therefore, exposed to liability for breaching those duties, but there is authority in Ontario for this and, consequently, this risk.

What remains unclear in Ontario is whether any person who is added to a pre-existing joint bank account by another (even just to assist with financial management), but who does not contribute to the account, will be automatically determined to be a fiduciary and, therefore, held to that standard, or whether this fiduciary duty will simply apply to everyone who holds (bank) accounts jointly.

As a precaution, if you will be added to a joint bank account (by a parent, for example), there should be, in writing, a statement by the person adding you about:

-     the reason and intention for you being added

-     whether, on death, the account balance is to be a gift to you

-     whether you are entitled to compensation for your assistance

A new case in Ontario illustrates this risk: MacKay Estate v. MacKay, 2015 ONSC 7429

An ounce of prevention is worth a pound of cure when it comes to joint bank accounts.

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

 

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SUING DEEP-POCKETED DEFENDANTS - LEVELLING THE PLAYING FIELD WITH A LITIGATION LOAN

Suing a deep-pocketed defendant can be problematic from a litigation funding angle. An emerging trend in other countries is funding by a third party to finance the litigation, if the litigation is meritorious. This 'level-the-playing-field', access-to-justice-premised emergence is finding its way into Ontario law. There are both proponents and those who are critical of this development, both from a legal philosophical and profiteering perspective.

Typically this type of funding is only an option for larger-scale cases with significant damages at play, rather than litigation with less prospect for significant recovery.

Lincoln Caylor of Bennett Jones LLP recently blogged about this litigation funding emergence in a helpful, concise way, which is appears below, as published by Lexology on Dec. 8, 2015:

Originally published in FraudTalk, ICC FraudNet.

"Your drinking water has been poisoned, your car is defective, or you have lost your life savings in an investment fraud. Neither you, nor the other victims have the money to pay for a lawsuit, but an investment company backs the suit, allowing you to mount a vigorous case. A win would not only net damages for you, but a return on investment for the company that banked the lawsuit. This is the brave new world of third-party litigation funding, or litigation finance, in which institutional investors offer financing in return for a contingency in the recovery. One of the most critical developments in civil and potentially commercial litigation, the practice has the potential to impact many types of cases, including international fraud, environmental and corporate cases worldwide.

Originating in Australia and the UK more than a decade ago, third party litigation funding agreements (LFA’s) are becoming commonplace in class actions in Canada, and have spread to the United States and Asia. However, while LFAs have yet to become as common in commercial litigation, a court ruling in Ontario earlier this year (Schenk v. Valeant Pharmaceuticals International Inc.,2015 ONSC 3215), could signal further expansion of the practice. Although the motion for approval of the LFA was ultimately denied, the court permitted the LFA to be amended in accordance with its decision. In the wake of the decision from Schenk, Canadian courts are bound to see more LFAs in commercial litigation. In a global world, other jurisdictions may not be far behind.

The deck is often stacked against plaintiffs who dare to take on companies with deep pockets. LFAs level the playing field, by providing access to the courts for parties who would not otherwise be able to litigate a case. Funders can also balance lopsided financial resources between parties and assist parties who would otherwise accept lower settlements, because they lack the financial resources to continue with the litigation.

Third-party funders do not fund meritless cases, or at least those that do will not be in business for long. Accordingly, access to funding will not clog the courts with meritless cases.

Meanwhile, as the debate continues, what are the big issues, responses by the courts and the future of LFAs?

Are LFAs a hindrance or do they actually facilitate the administration of justice?

Courts have aimed to strike a balance in governing the use of LFAs, between their potential to interfere with the administration of justice and their potential to unlock greater access to justice. On one hand, concerns arise when third-party funders are permitted to interfere with lawsuits in which they have no legitimate interest. Intermeddling in a dispute in which a third-party has no interest without justification or excuse is known in common law as maintenance. Profiting off such a dispute is known as champerty. The common law prohibitions against maintenance and champerty have historically deterred LFAs.

On the other hand, there isthe notion that LFAs facilitate access to justice, a concern that has grown increasingly prevalent in recent years. In the commercial litigation context, contingency retainers are less common than in class actions or personal injury litigation. As such, the risks and expenses associated with litigation fall primarily on the client. The often complex and document heavy nature of commercial litigation typically makes it very expensive and therefore a lack of access to adequate funding may create a barrier to justice.

Given that investments are designed to make a profit, when is that profit mercenary?

In Schenk, the primary basis on which the court refused to approve the LFA was that the third-party funder could potentially receive over 50% of the proceeds of the litigation. That threshold was adopted from Ontario's statutory cap on contingency fee agreements, which is set at 50%.In the court's view, an LFA in which the third-party could receive the majority of the proceeds did not provide access to justice. Rather, the LFA provided an attractive business opportunity to the third-party, who suffered no wrong. However, obviously funders find investing in litigation is good business when the payments are less than 50% or they would not invest.

Limiting the third-party funder's decision making power

Third-party funders may exercise influence over the litigation where the funder is permitted to terminate the LFA. Courts have refused to approve LFAs where the funder possessed the power to terminate the LFA without cause (see e.g. Metzler Investment GMBH v. GildanActivewear Inc., [2009] O.J. No. 3315 (Sup. Ct.)). However, where reasonable limits are placed on the funder's ability to influence the litigation through termination of the LFA, courts will not interfere. In Schenk, the funder possessed the ability to terminate the LFA in the event that it reasonably ceased to be satisfied with the merits of the claim. This was viewed as a reasonable limit on the power to terminate the LFA.

Courts may require the disclosure of an LFA

An LFA itself is not confidential, and its terms may be required to be disclosed. In the recent International Centre for Settlement of Investment Disputes tribunal decision from MuhammetÇap&SehilInşaatEndustriveTicaret Ltd. Sti. v. Turkmenistan, the claimants were ordered to disclose the identity of the third-party funder and the terms of the LFA. Grounds cited by the tribunal for requiring the disclosure included the potential that a conflict of interest existed between the arbitrators and the funder as well as the opposing party's intention to apply for security for costs.Similarly, Canadian courts have required LFAs to be disclosed to opposing parties (see e.g. Fehr v. Sun Life Assurance Co. of Canada, 2012 ONSC 2715).

LFAs in the United Kingdom

With its lengthier history of permitting LFAs, the United Kingdom has a more progressive approach in place. In particular, the U.K. has developed the Association of Litigation Funders of England and Wales, which is an independent body whose purpose is to regulate litigation funding. A Code of Conduct for Litigation Funders was also put into place, which mirrors some of the concerns discussed above that were addressed by Canadian courts. For example, litigation funders may not try to take control of the litigation, may not terminate funding absent a material adverse development, and must have the financial resources to pay for the litigation.

In Schenk, the court noted that the third-party funder was a member of the Association of Litigation Funders of England and Wales and that it was therefore expected to adhere to the Code of Conduct.

The future of LFAs in Canada and beyond

In the absence of legislation or a Code of Conduct, LFAs are still governed by the courts in Canada. As such, there are no clear guidelines and no guarantees that any particular LFA will hold up in court. However, even where LFAs are not approved, Canadian courts have provided guidance on how to amend the LFAs and permitted the parties to renegotiate the LFAs accordingly.

Although the court in Schenk opened the door for LFAs in the commercial litigation context, it may be some time to feel the impact of the decision. This is because parties to commercial litigation often have their own financial resources with which to finance the litigation. However, where individuals are involved in commercial disputes, where sophisticated parties lack adequate financial resources, or where sophisticated parties wish to hedge the economic risks associated with litigation, LFAs will continue to be a valuable tool."

Funding your litigation may be possible with the help of third party assistance, but careful consideration should be given by you and your counsel about the ins-and-outs of this type of arrangement.

 

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LET IT SNOW! SHOVELING AND YOUR DUTY AS A HOWEOWNER

Let it snow, let is snow, let is snow......What am I obliged to do, as a homeowner, for snow and ice?

In Ontario, homeowners have a a duty to keep their property reasonably safe for others.

Section 3 of the Occupiers’ Liability Act (Ontario) reads:

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.”

This means that you, as a homeowner, need to keep your driveway, steps and the like reasonably clear of snow and ice for others who visit you, including delivery people, guests and even strangers, such as canvassers and people trying to inspect your hot water heater to sell you an allegedly better program.  

If you do not, you may face liability for failing to keep your property reasonably safe for others.

While home insurance is designed to offer some protection to you, it is important that you act reasonably to keep your property reasonably clear of ice and snow – you should not do nothing and rely on a home insurance policy to protect you if you are sued. Claims will also cause your premiums to increase, too, if your home insurer does not decide to drop you as a insured client altogether if you make a claim and you failed to take reasonable steps to keep your property reasonably clear of ice and snow.

There is also a question in Ontario about whether a homeowner must also take reasonable steps to keep the municipal sidewalk clear of dangerous snow or ice. The best practice is to keep it monitored and, if the municipality is not properly clearing it regularly and keeping it in good condition, taking steps should be considered, such as shoveling, using sand or salt and calling the municipality to attend to take proper steps.

You should take these steps as soon as you can after a snowfall or ice build up. If you are too busy or away, you should consider hiring a snow removal contractor to help you or ask a neighbour to do it for you temporarily.

Avoid a lawsuit, be winter safe at your home.   

This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We're here to help - jason@wardlegal.ca  www.wardlegal.ca

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