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COVID-19 Changes in the Practice of Law

Albanian Canadian Lawyers Association Newsletter


Today marks the 1 year anniversary of the Albanian Canadian Lawyers Association. We are grateful and proud to have been on this journey with our amazing colleagues and the Albanian community in Ontario. Since its conception, ACLA has connected the Albanian lawyers practicing in Ontario and lawyers in training with each other and their community.


Last year, we hosted our Inaugural Gala at the Toronto BLG office, we created the directory of lawyers and law students on our website, we hosted the Night at the Museum at the Royal Ontario Museum, we co-hosted the flag raising ceremony at the Legislative Assembly of Ontario and Lawyers Unplugged with ACE Society, held an interpellation with the Albanian Minister of Diaspora, Pandeli Majko, and prepared an expert legal report to the Albanian Government with respect to the implementation of voting rights for Albanian citizens residing outside the country. Our work in expanding the network between our lawyers and bringing value to them and the community continues. While in the course of this year we will not be able to host any in-person events, we are still available to serve and connect with you virtually. Our vision and mission remains the same and we expect that we will soon resume our events boldly and proudly.


At this time, the ACLA board has prepared a helpful summary of some of the changes that have taken place in the practice of law as a result of COVID-19. While this is a situation which has taken many industries, and the world, by surprise, we hope that some of the changes will modernize and shape the practice of law for the better for the years to come.


Wishing you a good read, and a happy and healthy summer.


Anisa Arra

President



Changes in the Practice of Law Due to COVID-19


Law firms are considered essential businesses during the COVID-19 pandemic and remain open. While many lawyers are sharing their time between their office and home, they are still as available as before during business hours by email, phone or video conference. While generally in-person meetings are substituted with virtual meetings, in urgent matters the lawyer may still meet the client in person. Your lawyer will advise what the best way to proceed is depending on your particular case.


Please note that the information provided here is subject to change and does not pertain to all areas of law. Feel free to contact a lawyer listed in our directory for more information.


Updates to Immigration and Refugee Law

Article prepared by Aida Kalaj


The processing of already submitted applications (like sponsorships, humanitarian and compassionate, permanent resident, etc.) is still going on but delays may occur. Refugee hearings are postponed for a later time.


New immigration procedures are mostly suspended unless there is an emergency matter like, for example, a detention review hearing. New visa applications may be accepted only if submitted online, however they will not be processed until all travel restrictions have been lifted. Currently, travel restrictions for foreign nationals are in force until at least June 9, 2020. An exception is made for immediate family members of Canadian citizens or permanent residents who want to come to Canada for essential purposes only – family visits and tourism are not considered essential purposes.


Canadian citizens and Canadian permanent residents can enter Canada anytime provided that they show they have a plan to quarantine themselves for 14 days after their entry.


Updates to Wills and Estates Law

Article prepared by Aida Kalaj


It is a good idea to have your will executed at any time and not only during a pandemic. While the Law Society of Ontario has adopted new rules allowing for virtual commissioning of wills, your lawyer will advise whether he or she shall proceed with the virtual commissioning or if they want to meet with you in person.


If you have been appointed as an estate trustee/executor in someone’s will, you will need to ask the court to probate the will and appoint you as an estate trustee. However, there are a few cases where a probate is not required and your lawyer will advise you if that is your case and what you need to do.




Updates to Civil Litigation

Article prepared by: Glen Bushi


As many parts of our daily life have changed due to COVID-19, so has the practice of civil litigation. While courts are mostly closed, new procedures and the adoption of technology continue to move things along. For example, prior to COVID-19, civil pre-trials would take place in the judge’s chambers together with counsel of all the parties. Currently, pre-trials take place via video-conference applications such as Zoom or via teleconference. Similarly, mediations have moved to the virtual world and take place solely via a Zoom meeting or telephone.


Procedures have also changed with respect to the service of documents. Courts are allowing servicing of documents via email whenever possible (usually with the consent of the other party). Further, courts are expected to return to hearing in person motions on July 6, 2020, however, that date is subject to change. If the motion or application is urgent and time-sensitive and where immediate and significant financial repercussions may result if there is no hearing, an in person hearing may be scheduled at the court’s discretion.


Following the COVID-19 pandemic, it is likely that several changes will become permanent. It is possible that the utilization of technology such as Zoom will improve access to justice, shorten the length of time it takes for legal matters to resolve, and lower the costs of administering justice. Only time will tell if these things will come about. What is clear however, is that we are unlikely to “return back to normal”.


Updates to Real Estate Law

Article prepared by: Anisa Arra


It has been a long standing requirement for real estate lawyers to ascertain the client’s identity face-to-face, witness “wet ink” signatures and commission documents. With in-person meetings becoming impermissible during the COVID-19 pandemic, the Law Society of Ontario issued statements allowing virtual meetings and witnessing of signatures. The Law Society interpreted the requirement in s. 9 of the Commissioners for Taking Affidavits Act that “every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public” as not requiring the lawyer to be in the physical presence of the client. Electronic signatures, while increasingly becoming more acceptable by the courts in the commercial context, it is not yet clear whether they are a sufficient substitute in the real estate context. It is expected that the current pandemic will make electronic signatures more common and acceptable.


The Ontario Attorney General has stated that he will propose that the practice changes necessitated by this pandemic, such as virtual commissioning, will remain. Nevertheless, the duties of the lawyer are not lessened by the absence of a face-to-face meeting. Lawyers are still required to comply with their professional obligations when verifying a client’s identity remotely, such as confirming the client’s consent and managing any risks associated with identity verification, undue influence, capacity assessment and confidentiality via videoconference.


When finalizing agreements of purchase and sale real estate agents and brokers are encouraged to consider adding COVID-19-specific clauses to protect transactions closing amidst these changes. As a word of caution, these clauses have not been tested in the courts and it is unclear how they will hold up.



Force Majeure and Developments in Contract Law

Article prepared by: Pamela Metani


The Force Majeure Clause

Some commercial agreements allow parties to be excused from their contractual obligations in the event of a serious and unforeseen circumstance. The clause allowing for this in an agreement is referred to as the “force majeure” clause, and may discharge the contracting parties, when an event beyond the control of either party makes performance of the contract impossible. The event in question needs to be one that was beyond reasonable human foresight at the time into which parties entered into the contract. The following paragraphs explore COVID-19 as a possible trigger of force majeure, prior to the COVID-19 outbreak having become a known or foreseeable event.

A party may not be excused from a contractual obligation simply because an event meets the definition of force majeure. The party invoking force majeure must also establish that the event sufficiently impacted its performance. Canadian courts have typically applied a high threshold to interpreting force majeure clauses, only excusing performance where it is rendered essentially impossible. Also worth noting is that an event making performance more expensive or unprofitable is not enough to trigger a force majeure clause.


Force Majeure During the Times of COVID-19

Whether COVID-19 will satisfy force majeure requirements depends on a number of factors, including the contract’s specific force majeure clause. Since force majeure clauses are interpreted narrowly, it may be difficult for a party to rely on force majeure where there is some ambiguity over whether the force majeure clause applies to COVID-19. However, where the clause specifically speaks to pandemics, outbreaks, disease, etc., COVID-19 is more likely to meet the threshold of force majeure.

Further to the above, the test for determining whether COVID-19 qualifies as a force majeure includes additional factors; whether COVID-19 has sufficiently impacted an obligation of the relying party, whether the relying party has taken sufficient steps to avoid and mitigate COVID-19’s impact, and whether additional contractual requirements, such as notice, are met.

Specific facts at hand may further nuance the analysis of whether COVID-19 triggers a contract’s force majeure clause.


The Doctrine of Frustration

Courts are reluctant to apply force majeure to contracts that do not speak of force majeure. In these cases, courts may lean to the common law doctrine of frustration.

Similar to force majeure, frustration occurs when a situation has arisen for which the parties made no provision in the contract and the performance of the contract has become a thing radically different from that which was undertaken by the contract. Also similar to force majeure, the event that is alleged to have caused the frustration must also have been unforeseeable the time the contract was entered into, and must not be the fault of either party. Worth noting is that there is currently little case law on whether a pandemic such as COVID-19 can constitute frustration.

Conclusion

Force majeure clauses may help parties where performance of a contract has become impossible owing to unforeseeable events that were not the fault of either party. The common law doctrine of frustration may be of assistance to parties that have contracted without a force majeure clause. Legal guidance may help the reader not only in exploring both of these avenues, but also in exploring further avenues of relief at the face of a COVID-19 impacted business.


For further information, please contact us at hello@acla-sask.com.


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