Author Archives: Dunham

Resumption of Limitation Periods as of September 14, 2020

How to schedule client consultations and meetings

For the safety of our staff, lawyers and clients:

No unscheduled visits or deliveries are permitted.
Client meetings and discussions will ONLY occur by phone or video-conferencing and must be scheduled in advance.
In-person meetings are ONLY for signing of documents - no discussions other than normal greetings exchanged.
Individuals attending the office MUST remain in the main floor meeting room and page or call upstairs to announce their arrival. Only 1 client at a time is permitted in the main floor meeting room to ensure physical distancing.
Clients are advised to bring their own pen otherwise a sanitized pen will be provided.

Do NOT come to the office if:

you have travelled or live with someone who has recently travelled outside of Canada;
in the past 2 weeks, you have exhibited or come into contact with anyone exhibiting flu or fever like symptons;
in the past 2 weeks, you have participated in any group or social activity;
in the past 2 weeks, you have been in contact with anyone that is suspected or tested positive for COVID 19.

Thank you for your understanding and cooperation during this trying time.

GGS LAW values the health and safety of everyone as its #1 priority.

Be safe and be kind to one another.

Temporary Wage Subsidy for Employers

As of Monday, March 30, government of Ontario introduced a temporary Wage Subsidy for Employers – here are the details:

The federal government’s temporary wage subsidy for employers has been evolving. Now, many small and medium-sized law firms will be eligible.

The initial announcement offered a subsidy of up to 10% and limited eligible employers to non-profit organizations, registered charities, and Canadian-controlled private corporations (CCPCs) whose taxable capital employed in Canada for the preceding taxation year was less than $15 million.

Bill C-13, adopted in Parliament on March 25, expanded the definition of eligible employers to include individuals (other than trusts) and partnerships:

a person or partnership that
employs one or more eligible employees;
has, on March 18, 2020, a business number in respect of which the person or partnership is registered with the Minister to make remittances required under this section; and
is any of
a Canadian-controlled private corporation for the purposes of section 125 that
would have a business limit for its last taxation year that ended before the start of the eligible period greater than nil, if the amount determined for paragraph 125(5.‍1)‍(b) were deemed to be nil, or
if the corporation does not have a taxation year that ended before the start of the eligible period, would meet the condition in clause (A) if its taxation year ended immediately before the start of the eligible period,
an individual (other than a trust),
a partnership, all of the members of which are described in subparagraphs (i) to (iii) or (v),
a person exempt from tax under Part I because of paragraph 149(1)‍(l), and
a registered charity.

The government announced on March 27 that the wage subsidy will be up to 75% for qualifying businesses, for up to three months, retroactive to March 15. More details on eligibility criteria will be available soon and will start with the impact of COVID-19 on sales.

COVID-19 Impact on Residential & Commercial Tenancies

Commercial

The Ontario government hasn’t provided any assistance yet to commercial tenants. There is mounting public and media pressure to get something done before April 1st. Media reports have been urging commercial landlords to be lenient with their tenants and show some compassion such as:

Rent deferrals;
Rent abatements;
Alternative pay structure;
Short term arrangements.

Residential

This is a collection of information on what the Province of Ontario is doing or intending to do for residential tenancies in dealing with the fallout of the COVID-19 crisis:

NOTE: Despite Premier Doug Ford’s announcements to protect residential tenants, No formal policy details have yet been unveiled by the government.

Summary:

March 19, 2020: Ford announces suspensions of all evictions;
March 19, 2020: LTB suspends all hearings relating to eviction applications, the issuance of eviction orders etc…
March 26, 2020: The Government of Ontario issued an Emergency Order suspending limitation periods and procedural time periods relevant to tribunal proceedings;
March 26, 2020: Doug Ford announced that Ontario tenants who don’t pay rent on April 1st won’t be evicted, but this is only for emergencies. Premier Doug Ford’s point is that people should not have to decide between paying rent and putting food on the table.

What to To Do With Your Pending Real Estate Deal

(THIS IS NOT LEGAL ADVICE – the discussion is just one lawyer’s observations and views intended for a general audience)

The concern for buyers is that they may be laid off and not have the financial resources to carry a mortgage for an indefinite time after closing until their financial circumstances go back to normal.

It is a real dilemma.

A quick review of the standard OREA purchase and sale agreement shows that it does not contain a “Force Majeure” clause.

Force Majeure is a very unique legal concept that can relieve parties from their contractual obligations – like closing on a real estate transaction - on the narrow and high threshold exception where something not reasonably expected interferes and makes closing impossible or impracticable.

The legal principle is important because it can be used by a buyer who fails or refuses to close on a deal to be released from the contractual obligation to close and secure return of their deposit.

Presently, the virus is a worldwide pandemic that no one could have reasonably expected resulting in such great economic decline, particularly of non-essential products and services – with massive layoffs, financial uncertainty and massive number of EI applications. (See Wikipedia definition of force majeure https://en.wikipedia.org/wiki/Force_majeure)

Even if a buyer is not laid off work, the response to the pandemic has necessitated an economic slowdown so great that most industries are affected resulting in widespread economic uncertainty.

Clearly the State of Emergency called by Cities and Provinces and the looming imposition of the Federal War Measures Act – all speak loudly to the application of a “force majeure”.

Beware, the legal principle of force majeure is not an automatic right. The burden remains on a buyer to argue the application of a force majeure in a court of law if a seller refuses let the buyer out of the binding agreement and/or return of the buyer’s deposit.

Although our office has not yet had a buyer failing or refusing to close, this is a risk as time passes. As we see deals not closing, litigation may follow the end of the pandemic and economic recovery.

So, what should realtors do in the meantime to protect themselves and their clients?

There are two clauses you should advise your clients to include in purchase offers or counter-offers, namely:

A force majeure clause and;
An employment clause that allows your client to be released from the deal and return of deposit if they are laid off or terminated from employment prior to closing.

I understand that such clauses could jeopardize acceptance by a seller. Nevertheless, realtors should advise their clients to include such clauses and document your advice by sending the client an email.

We, at GGS, would be happy to assist in drafting these clauses to include in offers and counter-offers on behalf of your clients.

Regards,
Karmel Sakran
Managing Lawyer

GREEN GERMANN SAKRAN
411 Guelph Line, P.O. Box 400
Burlington, ON L7R 3Y3

T: 905-639-1222
F: 905-632-6977

NOTICE: COVID – 19

OUR NEW SHARED REALITY

This is a message to our friends, family and clients on what we – the staff and lawyers – at GREEN GERMANN SAKRAN / GGS LAW are doing in response to the COVID–19 pandemic.

GGS clients and employees are always our top priority. Rest assured that we are taking all necessary precautions and closely monitoring the (COVID-19) situation with Public Health Announcements so that we conduct business with peace of mind.

Read about our COVID-19 Policy

Safety and hygiene are cornerstones of GGS values and how we operate our office. Given the acute concerns with containing the spread of COVID-19, we recognize the importance of being vigilant to clean and disinfect. We are taking proactive and preventative measures to protect against the exposure to the virus in our office.

As early as last Monday, March 9 – all staff and lawyers met to discuss and brainstorm ideas on what we need to do to ensure the continued health and safety of each and every one of our staff, lawyers and clients.

We immediately drafted and implemented office policy and procedures that have evolved as the situation evolved.

Here is an up-to-date account of what we are doing:

We have discontinued handshaking or any form of touching and mindful of not touching our face or each other;
We are respectful of each other’s personal space – ensuring to maintain a meter distance apart – and not violating the other person`s work station area by not touching their equipment or areas;
We routinely sanitize our personal work space – mouse, keyboard, monitor, phone handset, desk, countertops, and routinely clean and sanitize all areas of our office;
We have placed sanitization products (such as lotions and wipes) throughout the office (front desk, offices and waiting areas) and provided staff and lawyers with latex gloves;
We are disinfecting and sanitizing all usable surfaces (ie. tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, sinks, pens and debit machines);
We routinely discuss and review our health and safety procedures to ensure we are doing everything necessary to ensure the health and safety of each other and our clients;
We are informing our clients of those measures and procedures;
We are not sharing pens;
We are conducting ALL client meetings and consultations via ZOOM or SKYPE video conferencing and providing clients with an email link to download either of these video conferencing platforms:
- https://www.skype.com/en/get-skype/ or,
- https://zoom.us/support/download and,
- In the event a client does not have access to such video technology – the old fashion telephone is used;
Where “in-office” attendances are necessary:
- We are screening clients to ensure they do not attend if they are sick or experiencing a fever or flu-like symptoms;
- We are restricting client attendances to our one (1) main floor meeting room which is sanitized before and after each meeting;
- We wear a fresh pair of latex gloves during in-person client meetings;
- We provide the client with a sanitized pen to use;
Client attendances are intentionally kept as brief as possible and restricted to the signature of documents only (IN/OUT is the idea);
- The conversational aspects of reviewing, explaining and amending documents are conducted in advance of client attendances by video and/or telephone conferencing;
- Where there are multiple clients – such as spouses/business partners/co-executors – we are staggering their entry to the meeting room;
By restricting client attendances to one office on the main floor, it is allowing us to better control the health and safety of that area for clients – and ensuring that the larger upstairs work area of staff and lawyers remains safe;
We are constantly and frequently washing and sanitizing our hands and everything we touch. As much as possible, we are conscious of not touching our mouth and nose;
We are regularly discussing and assessing if we need to modify what we are doing and if we need to add or modify our procedures;
We are not forcing staff or lawyers to work – and yet, the consensus is we WANT to be here – and that is primarily because we feel safe in all that we are doing;
We are mindful of everyone and their personal space and our shared responsibility to remain vigilant in all that we do and how we conduct business.

At GGS LAW, we value the health and safety of every individual.

We are and will continue to do everything we can to ensure the health and safety of all concerned.

And if you have any questions, simply call me at 905-639-1222 or email me at karmel@ggslaw.ca or send me a meeting invite via ZOOM or SKYPE.

Thank you to everyone for your patience and understanding – we are a caring and thoughtful society – I know we will get through this together.

Sincerely,
Karmel Sakran
Managing Lawyer

Here’s a Crazy Idea… Burlington Real Estate Development

Why don’t we include developers vested in the downtown in the City’s ongoing “engagement” process on Grow Bold? Why not bring developers to the table?

Why are we afraid to ask the private sector, experts in development, to participate openly in the process?

Why not bring developers together in a room (initially away from the public – away from the anger, hostility and venom) and ask for their “help” in dealing with the public fears on:

The loss of sunlight;
Increase in vehicular congestion;
Loss of green and liveable space;
Ensuring safe pedestrian flow and places of gathering;
Promotion of downtown businesses;
Ensuring sufficient parking for residents and visitors; and,
Any other big issue item….

Developers are not afraid of criticism. They deal with it all the time. And, they can be a powerful team to help with resident issues if we ask them.

Why not ask them to sign onto a Memorandum of Understanding to come up with a coordinated design away from the fear of public scrutiny and criticism, at least in the initial stages of brain storming and design.

Challenge them to put together a coordinated plan or design, and more than one plan or design, which addresses the public concerns and ensures an integrated approach to responsible development rather than the “one offs” we are currently getting with individual development applications.

Put their coordinated plan or design(s) before the citizen engagement forums. At least the residents would have something tangible to review and comment on.

Developers will listen, and even though they may not like the resident feedback, the hope is that their engagement gives them an incentive to incorporate the good design ideas into their individual development applications.

What do we have to lose?

I told you it was a crazy idea…..

Karmel Sakran, Ask a Real Estate Lawyer »