Author Archives: Michelle Gallagher

What on earth is a “FIAT”?  (Hint:  it’s not a car)

fiat image

We do not use a lot of Latin words or phrases at Patriot Law.  However, one simple one that we use on occasion is the FIAT.

There are a number of definitions for the word.  In the legal context, in the simplest sense, the word comes from the Latin for “let it be done.”  It is effectively direction from a legal authority that something be done.  Most commonly, it is a brief “order” from the Court (most commonly obtained in Alberta  from a Master in Chambers of the Court of Queen’s Bench) directing that a document be used or registered or filed with an authority of some kind notwithstanding some technical deficiency.    Generally, a FIAT is granted by a short notation on the document by the applicable Master or Justice, under the heading “FIAT” and with wording that states something like:

“Let the within [document] be filed/registered/processed notwithstanding [the technical deficiency]”.

Some common examples of the circumstances in which it may be necessary for a lawyer to obtain a Fiat (all of which we have dealt with at Patriot Law) are as follows:

  1. Permitting an Affidavit sworn outside of the Province of Alberta to be filed with the Court even though it was sworn before a Commissioner for Oaths and not a Notary Public;
  2. Permitting an Affidavit sworn outside of the Province of Alberta to be filed with the Court or by the Land Titles Office despite the fact that the Notary Public commissioning the affidavit did not affix his or her notarial seal to the affidavit;
  3. Permitting an Order of the Court to be filed with the Land Titles Office even though an appeal period has not expired;
  4. Permitting a document to be filed with the Court despite the fact that the deadline for filing the document has passed; and
  5. Allowing a copy of a document to be filed with the Court or with the Land Titles Office when an original is not available.

Of course, the aim should always be to follow the technical rules.  Those rules are important and exist for good reasons. However, our judicial system recognizes that there may be circumstances where the technical rules cannot be precisely followed and it is in the interests of justice that a deviation from the rules be permitted.   Accordingly, our justice system allows the exercise of discretion to allow deviation from the technical rules in appropriate circumstances.

Real Estate Contracts – Things to Keep in Mind

Home for saleWe are often asked to review real estate purchase contracts (sometimes referred to as “offers to purchase”) before an offer is made by a buyer or accepted by a seller. It’s a great opportunity for the lawyer to highlight important issues and help you avoid common problems.

There are many background searches and other matters that a lawyer will review or consider prior to giving advice about a specific contract.  This blog post highlights a few of the key issues that we look at in reviewing a residential real estate purchase contract.  I have organized them from the perspective of Seller and Buyer.

Issues from the Seller’s Perspective

  1. Is the Seller married?  One of the very first things that a lawyer will do is review a copy of the title to the property.  If there is only one person registered as the owner, then the lawyer will need to gather information about whether the seller is married.  This is because of the Dower Act, which is an Alberta statute that is designed to protect a married spouse who is not on the title to the family home from having the property sold (or otherwise disposed of) without his or her consent.  So, if there is only one person on the title, if the seller is legally married (not common law) and if  the property being sold is the family home, then usually the seller’s spouse (wife or husband) will need to consent to the sale and sign certain of the transfer documents.  There are some exceptions to this, and your lawyer can assist you with determining whether the Dower Act is an issue for your sale or not.
  2. Is the Seller required to supply a real property report and a compliance certificate?  Most standard contracts for residential properties include a provision requiring the seller to provide the buyer with a Real Property Report (“RPR”)  reflecting the current state of improvements on the land and evidence of municipal compliance (or legal non-conformance). [See our prior blog post on RPRs for more information on these documents].  So, one of the first things that we ask is whether the seller has these documents and, even if so, if there have been any changes to the house or other structures on the property since the RPR  was prepared.  If there have been changes (such as the addition of fences, gazebos, or decks, to name some of the most common issues), the standard contract terms would require a new RPR to be obtained.  If a new RPR has to be obtained, this can take anywhere from 3-8 weeks depending on how busy the local surveyors are at the time.  Not having these documents available prior to closing can delay a closing, or require that some funds from the sale be held back until the documents are available.   A new RPR and compliance letter from the municipality can cost between $700 to $1,000 to obtain.   It may be possible to change the contract (before it is fully signed) to either remove the requirement to provide these documents, or to confirm that the Buyer will accept an older version of these documents where applicable.
  3. Will the sale proceeds generate sufficient funds to pay all of the required obligations?  It is important to ensure that the funds available on closing of the sale will be sufficient to pay all of the typical costs:  realtor commissions, mortgages on title, property taxes, legal fees for the sale, and any others that apply.
  4. Is there sufficient time prior to closing?  While sellers are often keen to have their property sold quickly, it is important to be mindful that a variety of things have to happen between the signing of the contract (and the lifting of any required conditions) and the closing date in order for the deal to close efficiently.  Of course, there is often substantial work for the sellers to move out if the property is not already vacant.   We recommend at least 2 weeks between condition removal and closing.  Sellers should also ensure that the closing date allows enough flexibility for them to schedule an appropriate appointment with their lawyer prior to closing.  (So, don’t sign your contract and then head off to Mexico until the day before the scheduled closing date!!).

Issues from the Buyer’s Perspective

  1. Will the purchase be financed with a mortgage?  It is important for a lawyer to know whether the purchase will be financed with a loan or whether the Buyer has sufficient cash to close the deal without financing.  Where a mortgage loan is involved, it is important for there to be an appropriate financing condition.  A financing condition means that the purchase deal is not “firm” or “final” until such time as the Buyer has lifted or waived this condition.  This is necessary even if the Buyer has been “pre-approved” for a certain amount of a loan.  This is because pre-approval is generally focused on credit-worthiness and the ability of a Buyer’s income to support a certain maximum loan payment.  However, lenders normally need to do an approval/appraisal process related to the specific property being purchased (to ensure that the land is valuable enough to support the amount of the loan).
  2. Is there a need for other conditions?  Since there is generally a “buyer-beware” approach to purchasing property, we recommend that Buyers consider other common conditions, such as a property inspection condition, or (where the water is by a well) a water potability condition.
  3. Is the Buyer eligible to own the land? We handle many transactions involving rural land.  In Alberta, land ownership is subject to the Foreign Ownership of Land Regulations.  These regulations are designed to ensure that Alberta’s rural, agricultural and recreational lands are largely kept in the hands of Canadians.  So, if a Buyer is purchasing lands outside of a City, Town, or Village, the Buyer’s lawyer will need to confirm the Buyer’s citizenship (or permanent resident status) in order to confirm if the Buyer is eligible to own the land.
  4. Is the Seller required to provide a RPR and Compliance Certificate?  This is discussed in #2 above from the perspective of the Seller.  However, looking at this issue from the perspective of the Buyer, lawyers will generally advise that it is preferable to be provided with these documents so that the Buyer can be sure of the property boundaries, that all of the structures on the land are within the property boundaries, and that the development on the property complies with the municipal land use requirements.
  5. Is there sufficient time prior to closing?  This may be an issue from the Buyer’s perspective as well. In particular, if a mortgage loan is required for the purchase, the mortgage lender will need to send instructions to the lawyer handling the purchase.  It can take time for these instructions to be sent, for the lawyer to have the opportunity to prepare all of the required documents, and for the buyer to obtain all of the things necessary to satisfy the bank that the loan is ready to be advanced (such as confirmation of insurance).   Again, a minimum time period should be 2 weeks between removal of any financing condition and the closing date.  Longer may be required if the lender is not a chartered bank, or the financing was arranged through a mortgage broker.

Of course, there are many other things that your lawyer will review and discuss with you.  At Patriot Law Group, we encourage people to talk to a lawyer before signing any important contract.  We are happy to discuss your purchase (or sale) with you.  Feel free to contact us.

It’s election time in Alberta – a few interesting facts…

vote hereIf you live in Alberta, you likely know that there is a provincial election underway.

Here are 5 interesting facts that you may not know about elections and voting in Alberta:

  1. Voting is a “Charter Right.”  Section 3 of the Charter of Rights and Freedoms provides that every citizen of Canada has the right to vote in an election of members of the House of Commons (i.e. Federal election) or of a legislative assembly (i.e. provincial /territorial election) and to be qualified for membership therein. The Supreme Court of Canada has confirmed that voting rights enshrined in the Charter of Rights and Freedoms are limited to Federal and Provincial elections and do not extend to other elections. See the case of Baier v. Alberta.
  2. Incarcerated Prisoners Can Vote.  The Supreme Court of Canada decided in 1993 that an attempt to restrict prisoners from having the ability to vote was unconstitutional. See the case of Sauve v. Canada (Attorney General).
  3. Advance Polls.  You do not need a reason to vote an an “advance poll.” You can simply show up and vote without an explanation.
  4. Corrupt Practices.  There are various corrupt practices prohibited by the Election Act in Alberta.  For example, it is a corrupt practice to bet on the outcome of an election for the purpose of influencing the election.  It is an offence punishable by a fine of up to $5,000 or up to 2 years imprisonment or both. (see sections 170 and 177 of the Election Act)
  5. You cannot impersonate an election candidate in Alberta. Impersonating an election candidate in an Alberta  provincial election is an offence punishable by a fine of up to $1,000 (see section 157(3) of the Election Act (Alberta).

All of us at Patriot Law Group believe that voting is both an important right and a duty as citizen to participate in our democracy.  Make sure you get out and vote.

 

Employment Law – Termination Packages

Given changes in the Alberta economy, there has been much in the news lately about layoffs and downsizing.

When companies  terminate the employment of their employees, the employees are often offered a “severance package.”  The severance offer usually comes in the form of a letter.  The offer is typically is open for acceptance for a relatively short period of time (between a couple of days to a week or so).  Acceptance of the offer means the employee will have no further claim against the employer other than for the benefits outlined in the offer.

It is a good idea to talk to a lawyer before accepting a severance package, even if it appears that the offer is consistent with “what everyone else is getting.”  This is because an employee’s specific entitlements on termination can vary quite a bit depending on a number of factors.

In Alberta, an employer can terminate an employee’s employment at any time, for almost any reason. This is subject to a few restrictions like discrimination on the basis of a prohibited ground such as religion.   Provided that the termination is not for “Just cause” (a topic for another blog post) , the employer’s obligation on such termination, however, is to provide reasonable notice of termination (“working notice”), or pay in lieu of this.  In practice, working notice is rarely used and the offers are almost always focused on pay in lieu of notice.

The issue then becomes what is reasonable notice?  If there is a written employment contract that confirms this, then this may govern provided that the contract is very clear on this point and the termination provisions meet the minimum notice requirements outlined in the Employment Standards Code.

If there is no written employment contract, or the contract does not address the issue of notice on termination, then a different kind of analysis is required.  While the statutory minimum notice period under the Employment Standards Code will be required, an employee may be entitled to more notice than that pursuant to the “common law.” This is the judge-made law which has evolved over time.

A “common law” analysis looks to a variety of factors in determining an appropriate notice period.  These include the age of the employee, the nature of the employment (management vs. labourer, for example), the length of the employee’s service, and the availability of alternative employment.    These factors are often called “Bardal Factors” after the case of Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.)

So that an employee can be satisfied that he or she is accepting an offer that is appropriate in light of their circumstances, a consult with a lawyer is a good idea.  Feel free to contact Patriot Law Group for just such a consult.

 

Solicitor-Client Privilege – a Principle of Fundamental Justice

When you meet with a lawyer for the first time, the lawyer will likely tell you that everything you say to him or her is confidential.  Have you ever wondered why this is?  Or, perhaps you have wondered how confidential?

Communications between a lawyer and a client are governed by a long-established and special degree of confidentiality which has, in recent years, been elevated to an almost quasi-constitutional right.

The definition of solicitor-client privilege that continues to be used frequently, despite its age, was coined by John Henry Wigmore, an American jurist and expert in evidence.   The definition is as follows:

“Where legal advice of any kind is sought from a professional legal advisor, in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the privilege be waived.”

Much has been written about the importance of solicitor-client privilege and this short blog post cannot possibly provide a comprehensive analysis,  just a short snapshot.  In the simplest sense, however, solicitor-client privilege is absolutely necessary for the proper operation of our justice system and the rule of law.  This is  because it permits lawyers to provide committed client representation with undivided loyalty to the lawyer’s client.  A lawyer needs to have full and frank discussions with his or her client in order to provide that proper representation.

A recent Supreme Court of Canada decision (Canada A.G. v. Federation of Law Societies of Canada, [2015] S.C.J. No. 7) looked at the importance of solicitor-client privilege in the context of Canada’s federal anti-money laundering regime (which would have required disclosure of client names and certain other particulars in the context of certain financial transactions).   The Supreme Court ruled unanimously that the 2008 regulations requiring this disclosure were unconstitutional as they applied to Canadian lawyers and law firms.

There are only a few, very narrow, exceptions to solicitor-client privilege:  where there is an imminent threat to public safety, or where a party’s “innocence is  at stake.”

In the end, you can be confident that your conversations and communications with your lawyer are highly confidential, and that they need to be.

If you are interested in a comprehensive discussion of solicitor-client privilege in Canada, you may be interested in a paper prepared by Professor Adam Dodek of the University of Ottawa for the Canadian Bar Association.

Lawyers and Continuing Professional Development

You might be interested to know that a lawyer’s education and professional development do not end after being called to the bar.  Lawyers, like other professionals, have an ongoing obligation to ensure that their knowledge and skills remain “current.” In Canada, lawyers are regulated provincially.  As a result, the technical requirements for professional development vary from province to province.

In Alberta, lawyers must prepare an individualized Continuing Professional Development Plan annually, and provide a declaration to the Law Society of Alberta confirming this.  The content and time requirements for the plan are not mandated; lawyers can choose the various activities to be included in their plan to meet their personal goals and objectives.  Common activities that might be included are:

  • Attendance at educational seminars;
  • Individualized research or reading;
  • Completion of courses;
  • Review of journals or other publications on a recurring basis; and
  • Participation as an instructor for seminars or courses.

Other provinces in Canada are more prescriptive with respect to professional development and require that lawyers track hours spent on approved activities.  For example, in Ontario, the Law Society of Upper Canada requires practicing lawyers to complete at least 12 hours in “eligible educational activities” consisting of a minimum of 3 hours on topics related to professional responsibility and ethics, and up to 9 hours on issues relating to substantive or procedural law topics or skills. In British Columbia, the requirements are similar (12 hours of time spent) but the breakdown of those hours is slightly different. In Saskatchewan, the focus is on 36 hours of “accredited CPD activities” over a 3 year period. In Manitoba, 1 hour must be spent on professional development each month.

In the end, however, regardless of the specific technical requirements, professional development is an extremely important issue. At Patriot Law Group, we take our professional development very seriously. All of our lawyers have detailed professional development plans in place so that we can ensure we are always in a position to provide the best advice and legal services to our clients.

Legal Issues “Health Check” – A Quick Checklist

We are all busy people and lead busy lives.   Here is a quick checklist of a few key issues that we should all take the time to stop and consider to make sure that our “affairs are in order.”

1. Estate Planning Documents.  Do you have a will, power of attorney, and personal directive in place? If you don’t, you should.  If you do, your Will and other estate planning should still  be reviewed on a regular basis.  We recommend that you review your planning at least once a year, every time that there are changes in your personal or financial affairs, if you move outside the province of Alberta, or if you acquire property outside Canada.

2. Location of Key Documents.  Store your estate planning documents in a safe place and make sure that someone else knows where these documents can be found. There is no requirement to store the documents in a safety deposit box, but you can certainly do so. Keep an up to date list of key persons who need to be contacted in the event of your death or incapacity, including your personal representatives. Make sure someone knows where to find this list. Keep a current list of your assets and debts, and keep this list with your estate planning documents along with any important related documents such as title to any real estate that you own, insurance policies and any investment statements

3. Insurance.  It is important to review your insurance needs and the adequacy of your existing coverage regularly.  This includes property insurance, life insurance, disability insurance, and any other insurance particular to your situation.  If you are not sure what insurance you need, speak to an insurance agent or broker.

4. Specialized Beneficiary Designations.  It is prudent to review and confirm the beneficiary designations that you have in place for any RRSPs, RRIFs or insurance products that you have now, or acquire in the future.  If you have or acquire a Tax Free Savings Account in the future, there are similar designations that you should confirm with your financial and/or tax advisors.

5.  Business Operations Contingency Plan.  If you operate a business, you should consider putting a specialized disaster plan together that will allow for your operations to continue in the event of your death or incapacity, but also provide the person who will step in to manage the business with all of the necessary background information (accounts, contacts, passwords, key business information, etc.).  You can consider having a specialized power of attorney in place (in the event of incapacity) to allow a business partner or other person to manage the business.

6. Your Digital Life.  We all lead online lives (if you didn’t you would not be reading this blog…).  Many online service providers  (such as Google) have options for the designation of agents that may step in to access your account in the event you cannot.

At Patriot Law Group, we provide wide ranging legal services, including those relating to estate planning and small business issues.  If you have questions about your legal “health” please contact us.

 

 

Canadian Bar Association – It’s an Important Organization

All of Patriot Law Group’s lawyers are members of the Canadian Bar Association (CBA).  Further, Ed Gallagher is a member of CBA’s “Council” for Alberta.

So, you may wonder, what is the CBA all about?

The CBA is a professional, voluntary, organization formed in 1896 and incorporated by a Special Act of Parliament on April 15, 1921.  The Alberta branch of the CBA was formed in 1915.

The CBA is an ally and advocate of all members of the legal profession and focuses on the interests of justice for all Canadians, more generally.

The mandate of the CBA is to:

  • improve the law;
  • improve the administration of justice;
  • improve and promote access to justice;
  • promote equality in the legal profession and in the justice system
  • improve and promote the knowledge, skills, ethical standards and well-being of members of the legal profession;
  • represent the legal profession nationally and internationally; and
  • promote the interests of the members of The Canadian Bar Association.

The CBA has a lot of political influence nationally and provincially.  The federal Minister of Justice normally attends the CBA annual conference.

At Patriot Law Group, we strongly support the work of the CBA.  If you want more information about the CBA, check out their website.

Our Activities Outside the Law Office – One Example

Since Michelle’s Facebook post earlier this week (relating to Michelle’s opportunity to meet David Chilton of the Wealthy Barber and Dragon’s Den fame at the Federation of Alberta Gas Co-op’s annual convention), she has had queries about what this “Gas Co-op business” is all about.

So, this blog post is not about lawyers or the law directly. Rather, it is about one of the many extracurricular activities of the lawyers at Patriot Law Group.

Michelle is one of the Directors of her local gas co-op, West Parkland Gas Co-op Ltd. Rural gas co-ops have existed in Alberta since the 1960s. West Parkland Gas Co-op was officially incorporated in 1972. Initially formed to assist with supplying natural gas to rural farmers, gas co-ops have extended their reach to providing natural gas to a wide reaching network of rural Albertans, including farmers, acreage owners, and rural businesses. In the 1970s, the Alberta government began backing the “Rural Gas Program”, which it has supported ever since, both financially and by regulation. Now, virtually every Albertan has access to natural gas supply.
These individual gas co-operatives (and other member utilities) eventually formed the Federation of Alberta Gas Co-ops Ltd (the “Federation”). The Federation collectively the members that comprise Alberta’s rural gas distribution system, the largest of its kind in the world. This year is the Federation’s 50th anniversary.

The Federation acts collectively on behalf of its member utilities to provide training, support, insurance benefits and related services. It is also a very effective lobbying entity that commands the respect of the Provincial Government. As an indication of the Federation’s influence, more than 40 of the currently sitting MLAs attended the Federation’s recent convention for a “bear pit” question and answer session.

MLA 1
MLA2

 

 

 

 

 

 

 

 

 
If you are interested in more information about West Parkland Gas Co-op Ltd, check out the website. For the Federation, you can also check out their website.
Of course, you can also contact Michelle with any questions.

Planning and Pricing: the Patriot Law Group Difference

Last week we outlined the problems with the “Billable Hour” in the provision of legal services.   The post this week is on how Patriot Law Group is different.

Essentially our difference is all about planning.  At Patriot Law Group our focus is on catering the legal services provided to our clients to work towards a clear goal, based on a mutually agreed plan.   In summary, this involves the following steps:

  1. We Understand and Evaluate Client Goals.  We start by determining and evaluating the client’s goals, and the factual situation presented by the client’s circumstances.
  2. We Develop a “General Plan.” With an understanding and realistic assessment of the client’s goals,  we outline a general plan which focuses on the “big picture” strategy to move the client’s matter forward.
  3. We Develop a series of specific tasks in support of the General Plan.  The next step involves determining exactly what legal work must be completed to move the client’s matter forward in a way that is consistent with the General Plan.  This step includes determining both the “small” and “big” tasks that must be completed.
  4. We Price the Plan.  Based on the tasks to be completed, and focusing on the distinct tasks that would take the client to the next step at which a decision would be required, or a further analysis would be necessary, we prepare a quote for the legal work involved for the specific steps.
  5. Clients review and approve the plan and the quote.  Clients then have the opportunity to evaluate and approve (or not) the general plan, the specific tasks outlined (the “Scope of Work”) , and the quoted price for the legal services.
  6. We Move ahead with the Plan.  If the client agrees with the proposed plan and the price for the services, then the lawyer and the client move ahead with the plan.  The plan is moved ahead in a segmented fashion. This means that the client has the opportunity to review and approve the steps (and price) necessary for each segment of the work.   Each of these segments is focused on the work required to bring the matter to a stage where a new decision is required by the client.
  7. We Prepare a Change Order.  If additional work is required to move the client’s matter forward after completing  the approved Scope of Work, then the lawyer prepares (and the client must approve) a Change Order adding additional tasks.

Our view is that this approach is superior to the billable hour approach to legal services for a variety of reasons, including:

  1. The lawyer and client are clearly aligned as to the goals and task that must be completed to work toward those goals.  This means that there has been coordinated “strategic planning” about the client’s case.
  2. There is certainty as to the price (and value) of the services being provided and the client has the ability to review and approve these at each stage.
  3. There can be differentiation in the price of each task to be completed so that the fees reflect the value being provided.  So, for example, there would be larger fees for important work such as the participation in a settlement meeting, and smaller fees associated with routine administrative matters such as providing copies of correspondence.

If you are interested in finding out about how Patriot Law Group may be able to assist you with your legal issues, please contact us.