Current News

United Way Will Week 

Once again SMM Law will take part in raising money for the United Way through the United Way Will Week between October 17-21, 2011.  Last year SMM Law raised almost $13,000.00 for the United Way with this annual fund raiser.  

Where there is a will there is a way.

 SMM LAW welcomes Marc Rijkenberg, Student at Law

Marc Rikenberg practised law for fifteen years in South Africa (where he also served as the Canadian equivalent of a Provincial court judge).  Marc's main area of specialization has always been criminal and civil litigation.

In 2010 Marc and his family immigrated to Canada and settled in Cobourg.  He recently joined SMM Law as a student-at-law in our litigation department, while he completes the accreditation process to enable him to practice law in Ontario.

Whilst serving as a judge in South Africa, Marc presided in numerous trails and applications in the areas of family, civil and criminal law.  During his years as a lawyer, Marc volunteered with Lawyers for Human Rights, where he frequently represented persons who could otherwise not afford counsel.  He has always been active in conservation circles, and was a member of the Wildlife and Environment Society of South Africa. 

Since commencing employment with SMM Law, Marc has been developing his expertise in the fields of civil and criminal litigation, with a more specific focus on construction lien law.

Legal Fees Now Subject to HST in Ontario

Starting July 1st, 2010, legal fees in Ontario will be subject to the Harmonized Sales Tax. On a practical basis, this means that taxes on legal fees have now increased from 5% (GST prior to July 1st, 2010) to 13% (HST after July 1st, 2010).
Don’t fret if you were unable to meet with a lawyer prior to the HST taking effect. The increased costs of many legal services will be minimal. For example, for a couple looking to do basic wills and powers of attorney at our office, the cost will increase approximately $36.00 as a result of the HST. However, if you find yourself in a civil or family law dispute or on the wrong side of the law, you will feel the crunch much more as legal fees tend to be much higher in litigation due to the amount of time required to adequately handle such matters.

To determine what is taxable under the HST in Ontario, a list can be found at: http://www.rev.gov.on.ca/en/taxchange/pdf/taxable.pdf.

Ontario Small Claims Court Limit Increased to $25,000 

On January 1st, 2010, the Ontario Small Claims court limit increased from $10,000 to $25,000 dollars. This results in more cost-effective process for mid-size legal claims in Ontario.

The Ontario Small Claims court can hear cases involving various types of legal disputes, including contracts, debt collection, vehicle damage, personal injury and product liability. What the Small Claims court cannot do is offer equitable relief by forcing a person to do something or stop doing something. A person generally cannot bring a claim in the Ontario Small Claims court where the incident happened outside of Ontario. There are many Small Claims courts across Ontario, and a claim generally needs to be brought in the court closest either to where the incident occurred or where the defendant lives or carries on business. While there are a few exceptions, claims must be brought by the two year anniversary of the event for which a person is claiming against (both in Superior court and Small Claims court).

The benefits of pursuing or defending an action in Small Claims court (instead of Superior Court) are many-fold. First, filing fees are cheaper. For example, it costs $75 to start an action in Small Claims court (vs. $181.00 in Superior Court), $40 to defend a claim (vs. $144.00 in Superior Court), and $100 to set an action down for trial (vs. $337.00 to file a trial record in Superor Court). Second, settlement conferences (similar to pre-trials) are mandatory in Small Claims court, and an emphasis is placed on settlement. Where distance is an issue, settlement conferences (and motions) can be held by teleconference. Further, the Small Claims court rules allow for most documents to be served by mail, as opposed to personal service, which is required for many documents in Superior Court. The Small Claims court is as powerful as the Superior Court when it comes to enforcement remedies, and can utilize such measures as writs, seizures, and garnishments.

People can represent themselves in the Small Claims court, as it is more streamlined and generally easier to maneouvre through than the Superior Court. However, with the limit increase, many people may decide to hire a lawyer, whether it be to draft certain documents, appear on their behalf, or to represent them through every step of the process.

The increase in the Small Claims court system is welcome news for people pursuing or defending claims in the $10,000-$25,000 range. If you believe you have a possible claim or find yourself defending a claim in the Ontario Small Claims court and do not know how to proceed, contact your local Small Claims court office (/http://www.attorneygeneral.jus.gov.on.ca/english/courts Court_Addresses/) or contact a lawyer in your area.

News Article FYI: Mortgage Fraud: What can you do about it?

Mortgage fraud: we’ve all heard of it. What is it? The term is often used casually when people are in fact talking about all sorts of frauds related to real estate. Some fraudsters will forge transfers or deeds of land, pretending to be you – impersonating you; they will transfer the property to real people (accomplices) who will then enter into a mortgage with a financial institution. At some point they will stop making payments on the mortgage (if they ever make any) and the institution will take steps to seize and sell the house in which you are still living.

In other circumstances, fraudsters will forge powers of attorney for property from you, and then, using those documents, the real people apparently named by you to act for you, in the powers of attorney, will either complete a transaction as set out above or will purport to mortgage the property on your behalf. Again, they will keep the proceeds and at some point stop making any payments.

In yet other situations, fraudsters will simply pretend to be you, and will refinance your property in your name and take the proceeds.

The problem has become far more prevalent since financial institutions stopped insisting some years ago on prospective borrowers visiting a loans officer in person at the institution; as you are probably aware, mortgages are now available through on-line applications, without meeting anybody before you attend at the office of the lawyer instructed by the institution to complete the documentation. With apparently legitimate identification to give to the lawyer to photocopy, a fraudster can continue to impersonate you even then. It is also now quite common for people to work with different lawyers at different times, so even the fact that the borrower was a new client for a particular lawyer would not raise alarm bells for the lawyer or the financial institution.

The problem has also become more common since the province moved to the privately-owned electronic land registration system that now manages almost all of the land registrations in the province. All that a person needs is a computer key with its passwords and he or she has substantial access to the system. Fraudsters are skilled at impersonation: lawyers can also be impersonated and improper access to the system can be obtained.
What can you do to prevent a fraudster harming your ownership or your equity in your house? Nothing. Just as we can’t prevent a flood or a fire or a tornado damaging our house; just as we can’t prevent a tractor-trailer crossing the median and hitting our car; just as we can’t guarantee we won’t fall on a sidewalk and break an ankle; we can’t stop a fraudster from selecting us or our real estate to attack.

However, we can purchase title insurance to provide a fund of someone else’s money to assist in repairing the fraudster’s financial damage, just as we can buy house insurance or car insurance to assist in repairing the financial damage caused by certain types of accidents. Although I am reluctant to recommend that any one buy a product or service to protect themselves against a problem that rarely occurred even twenty years ago, we must all accept the Achilles’ heel of the advantages of electronic commerce and communication – the enhanced opportunities for fraudsters to wreak chaos upon us.

Title insurance is available in this province through several reputable insurance companies. It is now routinely purchased in Ontario for both refinancing a home and home purchases since it reduces the costs the borrower or purchaser must otherwise incur to complete a variety of searches relating to various matters affecting the house and the land. Title insurance is available to existing home buyers, through your lawyer. Any lawyer in Ontario who practices in the real estate field will be able to answer your questions about title insurance, about the items it covers, and those it doesn’t.

Like all insurance, however, title insurance only covers the statistically extremely unlikely possibility that certain things might happen, or might have already happened in the past, with respect to your property: things which few people would either be able to afford to pay for themselves or would want to have to pay for from their own resources. Like all insurance, title insurance hopefully will be a “wasted” investment because it (hopefully) will never actually be needed. However, if it is, our experience to date in Ontario is that the title insurers operating here have responded well and quickly to the various claims that are made under their policies.

At SMM Law, we can help you obtain Title Insurance on your new or existing home. To obtain more information about title insurance visit www.stewart.ca/Residential.html