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Arnie Herschorn was mentioned in the June 2013 edition of the Ontario Bar Association's JUST. magazine

Jun 19, 2013

JUST. CAUSES

WE'RE ON THE CASE

Recent appellate interventions highlight OBA's advocacy role

David Sterns

Every so often cases come along that can change an entire area of law. Some bear the hallmarks of a precedent-setting case and are easy to spot from a distance. Other times, the potential impact of a case is only known to legal specialists.

The OBA has intervened recently in both types of cases. One involved the interpretation of the new summary judgment rule in Ontario and raised questions of fundamental importance to the civil justice system. The other, brought to our attention by the OBA Real Property Section, involved the integrity of the land registry system in Ontario and the ability to correct registry errors.

Fixing Errors in Land Titles Register: MacIssac et al. v. Salo et al.

The issue in MacIssac was whether Section 159 and 160 of the Land Titles Act permitted rectification of a land titles parcel where there had been a mistake in the register and the affected parties had acquired their interest in the property knowing that the property was different from the registered title. The judge at first instance held that the court had no power to rectify a land titles parcel once a bona fide purchaser acquired an interest in the property subsequent to the mistake. The decision appeared to say that there could be no rectification even if the current owner had actual notice of the mistake before purchasing.

The decision had implications for real property lawyers and their clients. It meant, for example, that if a lawyer did not recommend a client obtain a survey and what is on title is different from what is on the ground, the lawyer may be liable. More importantly, the lawyer could not rectify the title to undo the error even if no one is prejudiced by the error.

The OBA’s Real Property Section asked by the OBA to intervene to clarify when rectification is available to clarify an error. Working with the Real Property Section, Arnie Herschorn of Minden Gross LLP represented the OBA before the Ontario Court of Appeal.

The appeal decision came out in February of this year. The OBA was successful in its goal as the Court confirmed “the statutory remedy of rectification is available where a party has actual notice of an interest in land that varies from the interest shown in the register.”

A broad-based legal organization like the OBA can add expertise and credibility to a public interest argument. The OBA is ready to intervene when the interests of its members and their clients are on the line. If you or your section are aware of any important cases progressing through the appellate courts that the OBA should consider for a possible intervention, please contact Elizabeth Hall at ehall@oba.org or Jason Murray, at jmurray@oba.org. 

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