Closing Documents: Tips and Traps Real Property Law Real Property Undertakings in Ontario Georgea S. Wolfe, Goldman, Sloan, Nash and Haber LLP
Closing Documents: Tips and Traps Real Property Law Real Property Undertakings in Ontario Georgea S. Wolfe, Goldman, Sloan, Nash and Haber LLP
REAL PROPERTY UNDERTAKINGS IN ONTARIO
Georgea S. Wolfe Goldman, Sloan, Nash & Haber LLP 1 2
The purpose of a closing or funding undertaking in a realty transaction is to provide for the delivery of an item, or the completion of a matter, which cannot be delivered or completed by the appointed closing or funding date.3
An undertaking creates a legal obligation between the giver and the recipient and obliges the giver to undertake or perform the specified action at a later date. The consideration for an undertaking given by a solicitor or his or her client is typically expressed in the opening language of the undertaking.4
An undertaking is considered a solemn promise on which the recipient is entitled to rely. Only the recipient may lessen or forgive the obligations set out in an undertaking after it is given.
Civil, disciplinary, cost or penal consequences may flow from the failure to perform an undertaking.5
It has been observed that the best undertaking is no undertaking and that an undertaking should not replace the completion of matters which could have been attended to before closing.6
Source Materials LSUC The following Rules and practice materials pertaining to real property undertakings in Ontario have been published by The Law Society of Upper Canada (the “LSUC”):7
1 This paper was prepared for inclusion in Closing Documents – Tips and Traps, a seminar presented by the Real Property Section of the Ontario Bar Association at the OBA Institute on February 9, 2017. The contents are not intended as legal advice and the author disclaims any liability arising from reliance on any aspect of this article. 2 The author thanks the following individuals for their comments in respect of title insurance: Raymond G. Leclair (LAWPRO®), Robert Clarke (First Canadian Title), Andrea Campbell (Chicago Title), Wayne Lipton (Stewart Title) and Lisa M. Weinstein (TitlePLUS®). As well, the author wishes to acknowledge the research assistance provided by GSNH articling student Jordan Barris. 3 This paper explores matters pertaining to real property undertakings in Ontario in the context of purchase and sale transactions and/or mortgage fundings. For an informative article on undertakings in the litigation context, see, Undertakings in and out of Court, Igor Ellyn and Nadine J.L. Barmania. 4 The typical consideration expressed in a closing undertaking would read, “In consideration of and notwithstanding the closing of the transaction…”. 5 More detailed comment on the consequences of breach of undertaking is provided in a later section of this paper. 6 See, for example: Silverstein, Alan G, Crafting and Drafting Undertakings, 2nd Annual Real Estate for Law Clerks, the Law Society of Upper Canada, Continuing Legal Education, Toronto, 2002; Kady, Ian, Commercial Mortgage Transactions – Complex Issues in Documentation and Due Diligence, the Law Society of Upper Canada, Continuing Legal Education, Toronto, 2008 [Kady, Commercial Mortgage Transactions]. 7 This list is current as of the date of this paper, however, it may not be exhaustive.
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o Rules of Professional Conduct (“Rules”)8
o Paralegal Rules of Conduct
o Residential Real Estate Transactions Practice Guidelines9
o Practice Guidelines for Electronic Registration of Title Documents (“Practice Guidelines
for Electronic Registration)10
o Electronic Registration – Rules of Professional Conduct and Practice Guidelines
(“Electronic Registration Guidelines”)11
o Real Estate Practice Guide for Lawyers, 2010 (“Real Estate Practice Guide”)12
o The Advisor Supplement, September 1992, Undertakings to Discharge Mortgages (“1992
Practice Directive”)13 14
o Mortgage Transactions in Electronic Registration
o Ethical Issues and Practice Management
o Overview of Undertakings and Trust Conditions (“Undertakings and Trust Conditions”)15
o Licensing Process, Examination Study Materials 2016 – Solicitor – Real Estate
Guidelines published by the LSUC reflect best practices from a risk management and loss prevention perspective. By way of example, the executive summary to the Residential Real Estate Transactions Practice Guidelines16 notes that,
8 Law Society of Upper Canada, Rules of Professional Conduct [Rules]; The rules pertaining to undertakings in the Rules of Professional Conduct were revised several years ago to conform to the text set out in the Model Code of Professional Conduct published by the Federal of Law Societies of Canada. 9 Law Society of Upper Canada, Residential Real Estate Transactions Practice Guidelines [Residential Real Estate Transactions Practice Guidelines]. 10 Law Society of Upper Canada, Practice Guidelines for Electronic Registration of Title Documents (June 28, 2002) [Practice Guidelines for Electronic Registration] 11 Law Society of Upper Canada, Electronic Registration – Rules of Professional Conduct and Practice Guidelines (June 28, 2002) [Electronic Registration Guidelines]. 12 Law Society of Upper Canada, Real Estate Practice Guide (June 2010) [Real Estate Practice Guide]. 13 Law Society of Upper Canada, 1992 Advisor Supplement – Undertakings to Discharge Mortgages [1992 Practice Directive]; This publication replaces the earlier publication Law Society of Upper Canada, Undertakings on Closing – Mortgage Discharges (February 20, 1981) [1981 Practice Directive]. 14 This publication should be read in conjunction with Practice Guideline 5, Electronic Closings and Mortgage Transactions contained in Practice Guidelines for Electronic Registration. 15 Law Society of Upper Canada, Overview of Undertakings and Trust Conditions, online: <http://www.lsuc.on.ca/undertaking> [Undertakings and Trust Conditions]. 16 Supra note 9.
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The Guidelines are not intended to replace a lawyer’s professional judgment or to establish a rigid approach to the practice of law or the conduct of a real estate transaction. Subject to those provisions of the Guidelines that incorporate legal, by‐law or Rules of Professional Conduct requirements, a lawyer should consider the circumstances of the individual transaction and choose and recommend to the client the practice and procedure that best suits the individual transaction. In appropriate circumstances the lawyer may deviate from the Guidelines.
LAWPRO®
LawPRO® has published the following helpful materials on real property undertakings:
o Avoid A Claim: Undertakings 101: Manage your risk
o Show me the Money – Fund handling and the benefits of wire transfers
o What is LVTS v. ACCS & why should you care?
o Overview of Undertakings & Exclusions in the Professional Liability Policy: Real Estate
Issues
o Avoid a Claim – Warning re: Claims exposure where private mortgage advance goes to
third party, posted October 7, 2014 by LAWPRO®
o Avoid a Claim – Coverage exception in title insurance policies catches lenders’ lawyers off
guard, posted February 3, 2015 by Kathleen Waters.
Other Materials
Case law and discipline cases are of assistance in determining standards for, and qualifications pertaining to, real property undertakings given in this province.
Lastly, regard should also be had to the obligations imposed on your client as set out in the applicable purchase agreement, mortgage instructions and/or loan agreement pertaining to the transaction.
Types of Undertakings It is generally considered that there are three types of undertakings: (a) client undertakings; (b) solicitor’s undertakings given on behalf of clients; and, (c) solicitor’s personal undertakings.17
17 Some authors are of the view that a “best efforts” undertaking is a fourth type of undertaking. In the writer’s view “best efforts” is merely a form of undertaking qualifier.
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1. Client Undertakings Client undertakings are given in the context of all purchase and sale transactions. A standard client undertaking by a vendor in a sale transaction would be the vendor’s undertaking to deliver keys and possession, to pay taxes and utilities, to re‐adjust the statement of adjustments and to pay and discharge the mortgages from the title to the property.
Client undertakings can be specific to the transaction, such as on a sale transaction to close and satisfy a work order or to repair an item which has been broken.
All client undertakings should be reviewed with the client prior to closing. Pay special attention to specific client undertakings to ensure that your client agrees with the terms of the undertaking and that the language is clear. Preferably, obtain written instructions from your client authorizing the giving or receiving of a specific undertaking.
An undertaking given by a client will not generally expose a solicitor to personal liability, unless the solicitor’s advice is sought with respect to the undertaking, in which case the solicitor assumes responsibility for giving proper advice to the client in connection with the undertaking.18
Pursuing specific undertakings after closing can be a protracted and sometimes unsatisfactory process. If your client will be receiving a specific undertaking, ensure that he or she understands that if the undertaking is not performed that they may have to sue the giver of the undertaking in order to obtain satisfaction.
Consider whether the specific undertaking should be supported by a holdback, a letter of credit or a reserve. In the case of a holdback, consider which solicitor will hold the monies, for how long, and the conditions which apply to the release of the holdback monies.19 20
If a specific undertaking is proposed to be given, ensure that it is authorized by the terms of the mortgage instructions and/or loan commitment, and if not, obtain written instructions from the lender to provide or accept such an undertaking.21
18 Traub, Walter M., Undertakings: The Necessary Evil, Annual Institute on Continuing Legal Education, Canadian Bar Association, Toronto, 1987 [Traub, Undertakings: The Necessary Evil]. 19 For two informative articles on this subject, see the following: Kady, Commercial Mortgage Transactions, supra note 6; Caplan, Gary M., Holdbacks and Undertakings: Traps for the Unwary, 12th Annual Real Estate Law Summit, the Law Society of Upper Canada, Continuing Legal Education, Toronto, 2015. 20 Note that the holdback constitutes a trust obligation on the solicitor and is therefore subject to Rules, supra note
8, Rule 7.2‐11. 21 More detailed comment on the drafting and management of undertakings is provided in a later section of this paper.
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2. Solicitor’s Undertaking on Behalf of Client
This type of undertaking is another form of client undertaking. It is typically given by the solicitor when a client is unavailable to sign the undertaking, however it has been authorized by the client (for example) by telephone.
When giving an undertaking on behalf of the client it has been observed that,22
… there is an implied warranty to the recipient party that the undertaking solicitor has the client’s authority to grant the undertaking. Accordingly, solicitors must ensure that the undertaking is only given with express instructions from the client.
Unless clearly qualified, an undertaking given by a lawyer is considered to be given on a personal basis.23 If there is no intention to accept personal liability, then the solicitor’s undertaking on behalf of the client should be phrased, “on behalf of my client and without personal liability”.24
3. Solicitor’s Personal Undertaking
A solicitor’s personal undertaking is a direct obligation on the part of the solicitor. A typical solicitor’s personal undertaking would be an undertaking to pay out and discharge an institutional mortgage from title following the closing or funding of the transaction.
It has been commented that, “A solicitor’s personal undertaking … should rarely be given, and then only with the greatest care”.25
In Hammond v. Law Society of British Columbia,26 Madam Justice Prowse of the British Columbia Court of Appeal commented that,
[Solicitor’s] undertakings are regarded as solemn, if not sacred, promises made by lawyers, not only to one another, but also to members of the public with whom they communicate in the context of legal matters. These undertakings are integral to the practice of law and play a particularly important role in the area of real estate transactions as a means of expediting and simplifying those transactions.
When a lawyer's undertaking is breached, it reflects not only on the integrity of that member, but also on the integrity of the profession as a whole. For that reason, the importance of undertakings is also stressed by the Canadian Bar Association in its Code of Professional Conduct.
22 Kady, Commercial Mortgage Transactions, supra note 6. 23 Rules, supra note 8, Rule 7.2‐11. 24 Undertakings and Trust Conditions, supra note 15. 25 Traub, Undertakings: The Necessary Evil, supra note 18. 26 2004 BCCA 560, [2005] B.C.W.L.D. 404 (B.C. C.A.)[Hammond].
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The Law Society of British Columbia has further commented that,
After a lawyer accepts an undertaking, it is not open to the lawyer to pick and choose which elements of the undertaking will be performed or to improperly delay the performance of the undertaking.
The Discipline Committee emphasises that undertakings are critical to the proper conduct of legal work and to public confidence in the profession. As expressed on many occasions over the past few years, the events surrounding the Martin Wirick matter should not leave anyone in doubt about the need to perform an undertaking and in a timely manner.27 28
An undertaking given by a solicitor has a special character apart from other undertakings. In Bank of British Columbia v. M.,29 Legg J. observed that,
This gives the undertaking a special status because it is given as an officer of this court.30 The undertaking of a solicitor may be enforced notwithstanding that the circumstances under which it is given might give rise to defences if the undertaking we considered to merely amount to a contract. Thus, an undertaking given gratuitously, or an undertaking which might otherwise be unenforceable by reason of the Statute of Frauds, will be enforced by the courts: see Cordery on Solicitors, 3rd ed. (1899), pp. 150‐151, cited in United Mining & Finance Corpn. V. Becker, [1910] 2 K.B. 296 T 303, and Re Hilliard; Ex parte Smith (1845), 2 Dow. & L. 919.
In certain circumstances a solicitor’s undertaking may have the strength of a guaranty or indemnity. Walter Traub has noted that, 31
Where a solicitor categorically and unequivocally undertakes to a third party that he is in a position to, or shall pay a certain sum to a third party, he may be held to have guaranteed the obligation directly.
Some matters are not properly dealt with by solicitor’s undertaking. For example, it would be inadvisable to either give or accept a solicitor’s undertaking to discharge a construction lien as an undertaking to discharge does not satisfy the mechanics of the
27 Hammond, ibid. 28 For further comment on the Martin Wirick matter, see a later section of this paper. 29 108 D.L.R. (3d) 170, [1980] 3 W.W.R. 502 (B.C. S.C.) [Bank of British Columbia] (Overturned on appeal on another point). 30 The same point holds true in Ontario. Law Society Act, R.S.O. 1990. C. L.8, Section 29 provides that “Every person who is licensed to practice law in Ontario as a barrister and solicitor is an officer of every court of record in Ontario.” 31 Traub, Undertakings: The Necessary Evil, supra note 18. Note that this was the argument, in part, of the trial judge in Bank of British Columbia, supra note 29.
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Construction Lien Act (Ontario). 32 33 It has also been noted that it would be unwise for a solicitor to give an undertaking in respect of environmental matters due to the complexities and uncertainties inherent in such an undertaking.34
Care should be taken if a solicitor’s undertaking is not a customary one to be given in connection with a real estate transaction. The solicitor may have voluntarily assumed a risk over and above the standard of care required of his retainer and the giving of the undertaking may not be covered by errors and omissions insurance.35
Lastly, recognize that the standard form of Document Registration Agreement,36 which governs most residential closings in Ontario, contains undertakings as between the solicitors pertaining to escrow, deliveries and registrations which are personally binding on the respective solicitors.
Consideration The matter of consideration remains fundamental to all undertakings. Walter Traub has commented that,37
Since it is the author’s view that certain undertakings may constitute contracts or
covenants of the party giving same, it would be prudent for the solicitor accepting such
undertaking to insist that it specifically recites consideration or be under seal. Although
one can argue that the consideration flowing from the contract itself may be sufficient,
there is always the possibility that the undertaking may vary somewhat or go beyond the
terms of the contract. Based on the cases dealing with variation of contracts, any
variation unsupported by fresh consideration may not be enforceable (Gilbert Steele Ltd.
v. University Constructions Ltd. (1976) 67 D.L.R. 607). A perfect example of an instance
where fresh consideration may be required, would be an undertaking to perform
obligations which would otherwise have merged on completion of the transaction. Since
the survival of an obligation, which would have merged if not for the undertaking, would
constitute a new obligation between the parties, fresh consideration is required to make
it enforceable.
32 An undertaking to discharge is not a discharge for the purposes of the Construction Lien Act (Ontario). A mortgagee who advances in the face of an undischarged construction lien or notice of lien loses priority for the amount of the advance not only to the amount of the construction lien but also to every other construction lien which later arises in respect to the project. 33 For an article on this subject, see Bowles, Brendan, Undertakings and Holdbacks – Issues Relating to Escrow Accounts, Commercial Mortgage Transactions 2015, the Law Society of Upper Canada, Continuing Professional Development, Toronto, 2015. 34 Shier, Donna S. K. and Greorgakopoulos, John, Environmental Undertakings: Making the Deal Stick, 6th Annual Real Estate Law Summit, the Law Society of Upper Canada, Continuing Legal Education, Toronto, 2009. 35 Traub, Undertakings: The Necessary Evil, supra note 18. 36 Adopted by the Joint LSUC‐CBAO Committee on Electronic Registration of Title Documents on March 29, 2004. 37 Traub, Undertakings: The Necessary Evil, supra note 18.
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Mortgage Discharge Undertakings 1. Contractual Obligations
OREA® Form of Purchase Agreement
Residential resale transactions in Ontario are most typically completed pursuant to the standard form of purchase agreement published by the Ontario Real Estate Association (“OREA®”). The standard OREA® form of residential purchase agreement contains the following language pertaining the discharge of mortgages:
12. DOCUMENTS AND DISCHARGE: Buyer shall not call for the production of any title deed, abstract, survey or other evidence of title to the property except such as are in the possession or control of Seller. If requested by Buyer, Seller will deliver any sketch or survey of the property within Seller’s control to Buyer as soon as possible and prior to the Requisition Date. If a discharge of any Charge/Mortgage held by a corporation incorporated pursuant to the Trust and Loan Companies Act (Canada), Chartered Bank, Trust Company, Credit Union, Caisse Populaire or Insurance Company and which is not to be assumed by Buyer on completion, is not available in registrable form on completion, Buyer agrees to accept Seller’s lawyer’s personal undertaking to obtain, out of the closing funds, a discharge in registrable form and to register same, or cause same to be registered, on title within a reasonable period of time after completion, provided that on or before completion Seller shall provide to Buyer a mortgage statement prepared by the mortgagee setting out the balance required to obtain the discharge, and, where a real‐time electronic cleared funds transfer system is not being used, a direction executed by Seller directing payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion.
The OREA® form of purchase agreement for a commercial transaction contains the identical language.
Note that the OREA® forms of purchase agreement provide that institutional mortgages may be discharged by solicitor’s personal undertaking. The definition of an institutional mortgage in the OREA® purchase agreements is similar to the definition of institutional mortgage provided in the 1992 Practice Directive which describes an institutional mortgage as a “mortgage held by a bank, trust company, insurance company, credit union or finance company”.
If a solicitor’s personal undertaking to discharge a mortgage is given, this undertaking must be accompanied by a discharge statement from the mortgagee, and, where a real‐time electronic cleared funds transfer system is not being used, a direction must be given by the vendor directing payment of a portion of the
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closing funds to the mortgagee and the balance payable to the vendor or the vendor’s solicitor. This methodology follows the approved procedure by the LSUC.38
Purchase Agreements with a Builder
The mortgage discharge clause in a purchase agreement for a newly built home or condominium is intended to deal with the partial discharge of blanket institutional mortgages on title and the flow of discharge funds either to the bank or to the vendor’s solicitors on closing. In lieu of a discharge statement from the bank, the purchaser’s solicitors will typically be provided with a letter from the bank advising the solicitors to deliver the net sale proceeds, or the balance due on closing, to the bank or to the vendor’s solicitors, and confirming that on so doing a partial discharge of the institutional mortgage will be provided (as well as a partial discharge of related Personal Property Security Act (Ontario) financing statements) following closing. A deposit insurer may instead provide a letter that no discharge monies are required to be paid on closing and that a partial discharge will follow on registration of the transfer. In all cases a solicitor’s personal undertaking to partially discharge each of these mortgages should be provided by the vendor’s solicitor to the purchaser’s solicitor. It is to be noted that since 1981 the LSUC has expressly frowned on new home purchase agreements which contractually provide only for the giving of an undertaking by the vendor (builder) to partially discharge blanket institutional mortgages.39 In both the 1981 Directive and the 1992 Practice Directive, the LSUC advised that where the purchaser’s counsel has the benefit of reviewing the purchase agreement prior to execution such a clause should be corrected or deleted.
Purchase Agreements Which Require Discharge
Not every purchase agreement permits an institutional mortgage to be discharged by a solicitor’s personal undertaking. Where the purchase agreement requires the vendor to discharge an institutional mortgage on closing, the vendor is obliged to follow the terms of the contract, failing which the purchaser may successfully be released from its obligation to close the transaction40 and the vendor may be unsuccessful in any action for specific performance.41 42 As well, a purchaser’s solicitor who accepts a vendor’s solicitor’s personal undertaking to discharge a mortgage, contrary to the terms of a purchase agreement requiring discharge,
38 1992 Practice Directive, supra note 13, as modified by Electronic Registration Guidelines, supra note 11. 39 1981 Practice Directive, supra note 13; The same point is made in the 1992 Practice Directive, supra note 13. 40 Fong v. Weinper, [1973] 2 O.R. 760, 35 D.L.R. (3d) 244 (Ont. H.C.); Garfreed Construction Co. Ltd. v. Blue Orchid Holdings Ltd. et al., 15 O.R. (2d) 22, 1 R.P.R. 79 (Ont. H.C.). 41 McFadden v. Pye et al., 22 O.R. (2d) 268, 93 D.L.R. (3d) 198 (Ont. H.C.). 42 These cases have been variously applied and distinguished.
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may be held liable in negligence to his or her client, unless the client’s specific instructions to accept such an undertaking are obtained prior to closing.43
2. Banking Framework
As noted earlier, the OREA® forms of purchase agreements provide that where an institutional mortgage is to be discharged, the whole of the closing funds may be delivered directly to the vendor’s solicitor pursuant to a solicitor’s personal undertaking to discharge, only where a real‐time electronic cleared funds transfer system is being utilized. This reference to real‐time electronic cleared funds is intended to reflect the Large Value Transfer System (“LVTS”) of money transfer.
In Canada, the Payments Canada website confirms that wire transfers delivered between financial institutions are delivered through the protection of the LVTS system,44 45 and that the expressly stated purpose of this system is to provide for same day certainty of settlement of funds and real time finality of payment.
Note that as an exception, wire transfers between customers of the same financial institution (known as On‐Us payments)46 are not actually transferred through the LVTS system. To provide clarity around the treatment of On‐Us wire payments and to address customer expectations, the Canadian Bankers Association has advised that endorsing financial institutions have voluntarily agreed to treat On‐Us wire payments in the same manner as LVTS payments. The list of endorsing financial institutions is appended as a schedule to this paper.47
In contrast to wire transfers, other electronic payments which are not made by wire (for example, direct deposits and internet banking deposits) are settled through the Automatic Clearing Settlement System (ACSS). The ACSS system does not provide the same protections and finality as the LVTS system.
Cheques and bank drafts cleared through the ACSS system are normally settled between financial institutions overnight following the day of deposit, however, this does not mean that they cannot ultimately be returned. Bank drafts or certified cheques which are fraudulent or which have been altered as to payee or amount can be returned through the ACSS clearing system for up to 90 days.
43 Polischuk v. Hagarty, 49 O.R. (2d) 71, 14 D.L.R. (4th) 446 (Ont. C.A.) [Polischuk]. 44 Most major banks have introduced online commercial banking suites that include LVTS online wire service. This process results in a much quicker transaction than the older, manual entry and batch process of wire transfers at the bank. 45 Technically, the delivery of funds in the LVTS system is characterized as in “near real time”. 46 An On‐Us wire payment is a payment that, had it been an LVTS payment between two financial institutions, would normally be processed through the originating financial institution’s wire processing system. 47 See Appendix 5.
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3. Institutional Discharge Statements
Most institutional mortgage statements contain the qualification, “errors and omissions excepted” (“E & O E”), meaning that if additional monies are discovered by the mortgagee to be owing by the mortgagor after closing (for example, a mortgage payment is returned as NSF), then the mortgagee can insist on the payment of these additional monies before discharging the mortgage.
Credit line mortgages, where the balance owing is typically verified on the morning of closing are of particular concern to a vendor’s solicitor in providing a solicitor’s undertaking to discharge, as there is always the possibility that further draws have been made on the credit line which are not reflected in the discharge statement obtained on closing. In this regard, it is noted in the 1992 Practice Directive that,48
If an additional amount were to be demanded by the original mortgagee before the discharge of the collateral mortgage could be obtained, and if the client should be reluctant or unable to pay that additional amount, it would become necessary for the lawyer to make the payment out of his or her own personal funds to obtain the discharge of mortgage required to honour the lawyer’s undertaking to the purchaser or the certificate of title to the new mortgagee. Lawyers should not accept this risk.
Given the foregoing, the LSUC suggests that,49 50
The lawyer’s letter to the mortgagee regarding the statement should make it clear that:
The lawyer will be relying on the accuracy of the statement and will be issuing a cheque payable to the mortgagee for the purpose of completely discharging the mortgage; and,
The lawyer will not be bound by any qualification in the statement whether by the use of the abbreviation “E. & O. E.” or otherwise.
The LSUC has further commented that the solicitor,51
… should do everything possible to establish an estoppel against the mortgagee claiming additional funds on the basis of an error in the mortgage statement.
48 1992 Practice Directive, ibid; The same point was made in the 1981 Practice Directive, supra note 13. 49 Real Estate Practice Guide, supra note 12. 50 Interestingly enough, the 1992 Practice Directive, supra note 13, states that it is the purchaser’s solicitor who would be writing to the mortgagee for a discharge statement whereas in the author’s view this has generally always been the responsibility of the vendor’s solicitor. This is especially true following the enactment of the Personal Information Protection and Electronic Documents Act (Canada) as it would be unlikely that this information would be released to the purchaser’s solicitor without the specific consent of the vendor. 51 1992 Practice Directive, supra note 13.
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4. Institutional Mortgages
The discharge of institutional mortgages by solicitor’s personal undertaking is driven by the fact that it is impractical in most instances (due to volume) for institutional lenders to make the mortgage discharge document available for closing or funding.
Prior to the implementation of the Teraview® system, if a mortgage was to be discharged by solicitor’s personal undertaking, the procedure typically meant the following: (a) an institutional mortgage discharge statement would be obtained; (b) a direction re: funds would be provided, either from the solicitor or the vendor, directing the required portion of the closing funds to the mortgagee, with the balance payable to the vendor or others; (c) certified cheques would be drawn by the purchaser’s solicitor matching the direction re: funds; and, (c) the solicitors would meet at the applicable registry office and exchange closing documents, keys and funds.
With the advent of electronic registration and title insurance, closings are rarely effected at the registry office and funds are more typically delivered electronically.52 Despite this, and where an institutional mortgage is to be discharged, the LSUC has stated that the delivery of the whole of the closing funds to the vendor’s solicitor on closing continues to be contrary to best practices, except where the funds are delivered through the LVTS system.53
Interestingly enough, the payment of funds directly to the institutional mortgagee required by the 1992 Practice Directive 54 was likely intended to prevent fraud on the part of the vendor’s solicitor in that the mortgage monies could not be deposited in the solicitor’s trust account. However, where closing funds are delivered through the LVTS system, the Electronic Registration Guidelines 55 now clearly permit the whole of the balance due on closing to be delivered to the vendor’s solicitors (subject to the terms of the applicable purchase agreement providing to the contrary), despite the fact that the LVTS system does not effect a reduction in the risk of fraud to the purchaser’s solicitor. 56
Where the transaction is title insured, a deficiency flowing from an E & O E discharge statement will not be a concern to the holder of a title policy (i.e., the purchaser and/or new mortgagee) as the title insurance policy will cover this deficiency.57 The deficiency, however, remains a concern to the vendor’s solicitor who does not have the benefit of this title policy.
52 It has been noted that where closing funds are paid by direct deposit and the vendor’s solicitor then receives a copy of the certified cheques and the deposit confirmation by pdf, that there is no appreciable change in risk to the vendor’s solicitors than that applicable in the older closing practice of meeting and exchanging certified cheques and documentation. 53 1992 Practice Directive, supra note 13, as qualified by the Electronic Registration Guidelines, supra note 11. 54 1992 Practice Directive, supra note 13. 55 Electronic Registration Guidelines, supra note 11. 56 The permission to pay the entire balance due on closing to the vendor’s solicitors is not limited only to transactions completed pursuant to an OREA® form of purchase agreement. 57 Subject to the monetary limits of the title policy.
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Similarly, a revolving credit line mortgage, where the balance may only be verified on the morning of closing, is not a concern to the holder of a title policy as the title insurance policy will cover this deficiency. Again, the deficiency remains a concern to the vendor’s solicitor who does not have the benefit of this title policy.58
The following “best practices” may assist with institutional mortgage discharges:
o A discharge statement should never be accepted in the form of an on‐line statement supplied by the client. Also, the statement should always be obtained directly from the mortgagee and never through the client as an intermediary. The risk of statements obtained other than as advised, is that the statement may be inaccurate, or worse, fraudulent.
o Confirm that the lawyer providing the solicitor’s undertaking to discharge is in good standing with the LSUC.59
o When you meet with your client for signing purposes, carefully review the discharge statement and the date of the last mortgage payment and confirm that this payment has or will be made.
o If a conventional mortgage is being repaid and there is a mortgage payment payable on or shortly before closing, you may wish to hold back an amount from the closing proceeds to ensure that this final payment clears the mortgagee’s bank account.
o As a vendor’s solicitor, always ensure that the certified cheque in respect of the purchaser’s closing funds is drawn on a lawyer’s trust account. There is greater likelihood that a certified cheque supplied by directly by the purchaser, or a money order, the origin of which is unknown, may have been either forged or altered. Also, if there is an issue regarding a fraudulent cheque on a sale transaction, this will then be an issue affecting the purchaser’s lawyer’s trust account as opposed to the vendor’s lawyer’s trust account.
Where a credit line mortgage is being repaid, note the following additional suggestions:
o Advise your client in writing at the outset of the transaction not to draw any more funds on the credit line and to make arrangements at the bank for the closing of the credit line as soon as possible, and in any event no later than the closing date.
58 Again, subject to the monetary limits of the title policy. 59 Information as to the lawyer’s status is readily available through the LSUC website.
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o Obtain written instructions from your client confirming that he or she is aware that the line of credit is to be closed and paid out and that no further borrowings against it is permitted.60
o When writing to the bank to request a discharge statement, request that the credit line access be closed as soon as possible (subject to client instructions), and in any event, no later than the date of issuance of the statement.
o The discharge request letter should further advise the bank that, other than the amount advised on closing, the solicitor will not be responsible for any additional monies owing by the client which come to light after closing. Obtain confirmation from the bank, if possible.61 62 63
o You may be able to have the bank agree that any further drawings by the client which are not showing on the discharge statement will be taken as unsecured drawings and as such will not hold up the discharge of the mortgage.64
o You may be able to negotiate with the bank for the credit line to be secured as against another property being acquired by the vendor on the same day 65 (subject to the requirements of any other prior mortgagees of the property to be acquired) or for the credit line to be otherwise secured, such as by way of cash collateral.
o Where you do not know the client (i.e., you have not acted previously for this client) and where the monies are not required for closing, you can obtain client instructions to hold back an amount which you deem sufficient in your trust account until the discharge is obtained.66
60 Decker, Karen, Current Issues in Underwriting, Stewart Title Guaranty Company, Toronto (West) Lecture Series, September 2014 [Decker, Current Issues in Underwriting]. 61 1992 Practice Directive, supra note 13. 62 Stewart Title has noted that their expectation on credit line mortgages would be that the lawyer would, on the day of closing, both confirm the amount owing and also notify the lender to close the line of credit as of the closing date. 63 Sample text suggested by the author on this point would be the following: “We wish to emphasize that we will be relying upon the accuracy of your discharge statement and on the advice set out therein as to the exact amount required for the discharge of the mortgage, and we will be paying this amount to the institution and no more. We cannot accept any discharge statement with the qualification, “errors and omissions excepted”. Further, to the extent that any additional amount is found to be owing by the customer after the discharge statement is provided to us, this will be a matter solely between the customer and the institution. Any such additional amount owing should be considered by the institution to be an unsecured balance, as same can in no way impede the delivery of the mortgage discharge by the institution to our office.”. 64 1992 Practice Directive, supra note 13. 65 1992 Practice Directive, ibid. 66 This may be impractical in a situation where there are stacked closings.
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5. Drafting the Solicitor’s Personal Undertaking to Discharge
As a starting point, the 1992 Practice Directive67 68 provides that a solicitor’s personal undertaking to discharge an institutional mortgage should contain the following:
To deliver the cheque and the letter to the mortgagee forthwith.69
To be responsible for any additional monies payable for the discharge of the mortgage as a result of any delay in the delivery of discharge funds.
To make every reasonable effort to obtain and register a proper form of discharge of the mortgage as soon as possible after closing.
To be responsible for any additional amounts payable to the mortgagee by reason of any error, omission or other change in the mortgage statement.
Good drafting practice would also require the solicitor to provide particulars of the discharge registration to the other solicitor forthwith following receipt or registration of same.
Note that the OREA® forms of purchase agreement provide that the discharge is to be registered on title, “within a reasonable period of time after completion”. This varies from the suggested, “as soon as possible” timeline noted in the 1992 Practice Directive. Therefore, in a transaction completed pursuant to an OREA® purchase agreement, the time frame in the undertaking should reflect this standard.
Also note that the OREA® forms require the solicitor’s personal undertaking “…to obtain, out of the closing funds, a discharge in registerable form…” which is a more absolute standard than that provided in the Real Estate Practice Guide for Lawyers, 2010 which states that the solicitor shall, “make every reasonable effort to obtain and register a proper form of discharge of the mortgage as soon as possible after closing.”. In a transaction completed pursuant to an OREA® purchase agreement, the more absolute standard should be reflected.
Also note that the OREA® forms circumscribe the discharge obligation on the solicitor as an obligation to obtain the discharge “out of the closing funds” only. Again, this distinction should be referenced in the solicitor’s undertaking.
In some instances institutional mortgages are discharged on an “in house” basis by the financial institution following closing. Therefore, the solicitor giving the personal undertaking should always inquire in advance if this will be the case. If the financial institution will be discharging the mortgage itself, the recommended change to
67 Supra note 13. 68 There are identical comments in the Real Estate Practice Guide, supra note 12. 69 The reference to delivery of the cheque refers to the amount directed to be paid to the mortgagee pursuant to the discharge statement received.
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the form of undertaking would be, “to cause the discharge of the mortgage to be registered”.70
Notwithstanding the language suggested by the LSUC, there are many versions of a solicitor’s personal undertaking to discharge in circulation. By way of example, a typical solicitor’s personal undertaking to discharge pursuant to an OREA® form of purchase agreement may be worded as follows:
To forthwith pay to the mortgagee from the balance due on closing all amounts required to pay out and fully discharge [ADD DETAILS OF INSTRUMENTS AND REGISTRATION NUMBERS].
To be responsible for any additional monies payable to the mortgagee as a result of any delay by us in delivering the discharge funds.
To obtain and register, or cause the mortgagee to register, a discharge of the mortgage within a reasonable period following the closing date, and to forthwith advise you of registration particulars thereof.
As an alternative to the above, the Working Group on Lawyers and Real Estate (the “Working Group”)71 72 , in its efforts to standardize closing documentation for residential purchase transactions completed pursuant to an OREA® form of purchase agreement, has endorsed the following more succinct form of solicitor’s personal undertaking to discharge:
To take all steps necessary to cause to be deleted from title each of the following encumbrances or instruments, and to advise the purchaser’s lawyer of the registration particulars thereof within a reasonable time after the closing of this transaction: [ADD DETAILS OF INSTRUMENTS AND REGISTRATION NUMBERS].
Note that the standard solicitor’s undertaking to discharge produced by the program in The Conveyancer® contains the following additional obligation:
In the event that we have not obtained the discharge of the mortgage within [NUMBER] days of closing, to commence and diligently pursue a court application for an order discharging the mortgage, and upon such order
70 Practice Guidelines for Electronic Registration, supra note 10; Electronic Registration Guidelines, supra note 11; Real Estate Practice Guide, supra note 12. 71 The Working Group is a group comprised of representatives from the County and District Law Presidents Association (“CDLPA”), the Ontario Bar Association (“OBA”) and the Ontario Real Estate Lawyers Association (“ORELA”). The Working Group’s suggested standard closing documents are available at www.lawyersworkinggroup.com. 72 The text “to take all steps necessary” was intended by the Working Group to be more neutral than the older form of discharge undertaking in terms of the specific obligations on the lawyer. More generally, the undertaking obligations were drafted so as to apply to many kinds of mortgage discharge obligations.
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being granted, to forthwith register same on title and advise you of registration particulars.
A plausible argument can be made that since the OREA® forms of purchase agreement require the solicitor to obtain a discharge (as opposed to making every reasonable effort to obtain a discharge), that the obligation to commence a court application would be implied within this requirement.
On the other hand, in a title insured transaction, such an obligation could also properly be stricken on the basis that this is a matter and risk which is covered by the policy of title insurance.
Irrespective of whether the transaction is title insured, keep in mind that there is now a published contact list for escalation of outstanding mortgage discharges to be provided by financial institutions.73 Therefore, it may be that imposing an obligation and a timeline on the vendor’s solicitor to bring a court action is appropriate only in limited circumstances.74 In this regard, note that the British Columbia Branch of The Canadian Bar Association (“BC – CBA”) has specifically taken the position that,
The obligation of the Seller’s Lawyer to use their diligent and commercially reasonable efforts does not require that the Seller’s Lawyer commence a court application against the Existing Financial Chargeholder unless the Seller’s Lawyer [has] obtained clear instructions from their client to do so at their expense.75 76
Note also that The Conveyancer® program generates the following further obligation on the solicitor in the solicitor’s undertaking to discharge:
To indemnify you from and against any and all direct or consequential claims, costs or damages arising from the failure to discharge the said mortgage in accordance with the terms of this undertaking.
It is quite likely that this obligation to indemnify exceeds the required standard for solicitor’s undertakings and it may not be appropriate for any transaction, whether or not the transaction is title insured. Note that the BC – CBA has further commented that,
The obligation to provide clear title of the Existing Charge is an obligation of the Seller and not the Seller’s lawyer. The obligation of the Seller’s Lawyer to use their diligent and commercially reasonable efforts, does not in any way diminish the ultimate obligation of the Seller.77
73 See Appendix 5. 74 The lack of an express undertaking by the vendor’s solicitor to make an application to court to obtain a discharge does not mean that the vendor could not be put to the task of making such an application. 75 Canadian Bar Association – British Columbia Branch (Real Property Section), Standard Undertakings, March 3, 2003. 76 Italics added by the author. 77 Supra, note 75.
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6. Private Mortgages
Private mortgages are typically discharged on the closing or funding of a transaction. This reflects the fact that as far back as 1981 the LSUC recommended (strongly) that private mortgages be discharged on closing and commented this reflected the general practice and expectations of the real estate bar.78 This remains the position of the LSUC.79
By way of example, Practice Guideline 580 notes as follows:
In the case of “private mortgages” (mortgages held by persons other than financial institutions), and in the absence of any express provision to the contrary in the Agreement of Purchase and Sale, lawyers should not give or accept personal undertakings respecting discharge after closing. Unless the private mortgage is paid out and discharged prior to closing, it may be necessary for the vendor’s solicitor or the mortgagee’s solicitor to seek written authority from the lender in the recommended form of Acknowledgement and Direction to create the required electronic form of discharge and arrange for it to be registered on closing.
The expectation that a private mortgage will be discharged on closing is also reflected in the OREA® standard forms of purchase agreement, which do not permit the discharge of a private mortgage by means of a solicitor’s personal undertaking.
Lastly, note that it would be acceptable for a lawyer to transfer the amount required to pay out a private mortgage directly to the vendor’s solicitor’s trust account where the mortgage discharge itself comprises one of the documents to be registered under the DRA.81 However, it is considered good practice to request confirmation in advance of closing that the Acknowledgement and Direction for the discharge has been signed and is being held in escrow.
7. Private Lender Exception in Title Insurance Policies
The “private lender exception” in many title insurance policies (other than the TitlePLUS® policy) is an important exception to coverage. Stewart Title has commented that,
[Our] experience with respect to title fraud has indicated that private mortgages pose a greater risk for a claim. In most cases, these lenders focus on the amount of equity available in a property and often complete minimal due diligence with respect to the borrower. Fraudsters are aware of this and choose these lenders as their targets.82
78 Law Society of Upper Canada, Real Estate Transactions – Undertakings on Closing – Mortgage Discharges, February 20, 1981. 79 1992 Practice Directive, supra note 13; Practice Guidelines for Electronic Registration, supra note 10, Practice Guideline 5. 80 Practice Guidelines for Electronic Registration, ibid. 81 In traditional conveyancing practice, the discharge would be the first of the documents to be registered on closing. 82 Decker, Current Issues in Underwriting, supra note 60.
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The typical wording of the private lender exception provides that notwithstanding the coverage provided by the policy, the insurer may deny coverage and that it has no liability to the insured in the event that the proceeds of the title insured mortgage are paid to any person or entity other than the registered title holder, the holder of a prior registered encumbrance, execution creditor or other specified limited types of payees. Although this exception does not apply to a TitlePLUS® title policy, this does not mean that the issue can be ignored. LAWPRO® has commented that,
This exception is not being added to TitlePLUS® policies as a matter of course, although TitlePLUS® underwriting requires the subscribing lawyer to advise if funds are going to non‐permitted payees. Failure of the lawyer ordering the policy to comply with the underwriting requirement does not affect the lender’s coverage under the policy, although it could result in a review of the lawyer’s status under the TitlePLUS® Subscription Agreement.83 84
Consider that the mortgage advance is typically delivered by the lender’s solicitor to the borrower’s solicitor, and that it is the borrower’s solicitor who oversees the disbursement of funds. The problem arises when the borrower turns out to be a fraudster and the mortgage proceeds have been paid by the borrower’s solicitor either to the fraudster (who is not the registered title holder) or to an unrelated third party. Under the language of the exception, coverage would be denied.
LAWPRO® has highlighted the importance of making the private lender mortgage exception known to your lender client in advance of funding:
If the lender’s lawyer is not aware of or does not alert a lender client to the existence of this exception, and highlight the potential for a denial of coverage if the mortgage proceeds are paid to parties other than those permitted in the exception, the lender’s only likely recourse will be a negligence claim against the lender’s lawyer in the event the lender’s title insurance claim is denied.85
Assuming that the private lender exception remains in the title policy and that your lender client has been made aware of and has agreed to this exception, the best practice would be to obtain assurances from the borrower and/or his lawyer that the mortgage proceeds will be paid only to those permitted payees described in the title policy. These assurances could take the form of: (a) a certificate of identity given by the borrower’s solicitor
83 Decker, Current Issues in Underwriting, ibid. 84 The TitlePLUS® application contains a “Mandatory Due Diligence” section where the lawyer must indicate if the mortgage proceeds are being paid to a “non‐approved recipient”, and if so, how much. 85 LAWPRO, “Avoid a Claim – Warning re: Claims exposure where private mortgage advance goes to third party”, online: October 7, 2014 <http://avoidaclaim.com/2014/warning‐re‐claims‐exposure‐where‐private‐mortgage‐advance‐goes‐to‐third‐party/>.
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attaching legible copies of identity documentation for the borrower86; and, (b) an undertaking by the borrower’s solicitor not to disburse funds to persons other than approved persons under the title policy.
8. Title Insurance
Questionnaires
In order to assess the impact of title insurance in Ontario on mortgage discharge undertakings, a questionnaire was provided to four title insurers which provide title insurance policies in this province. The responses to the questionnaire are bound as appendices to this paper.87 88
Impact
Despite the language of the OREA® forms of purchase agreement and the recommendations of the LSUC,89 in a title insured residential transaction closed electronically through the Teraview® system, the whole of the closing funds are frequently delivered directly to the solicitor for the vendor. Typically, a certified cheque would be drawn on the purchaser’s solicitor’s trust account and this certified cheque would then be deposited in the vendor’s solicitor’s trust account by direct deposit. A pdf copy of the certified cheque along with a copy of the bank deposit transaction would then be provided to the vendor’s solicitor.
In this regard, the LSUC has commented that,
The [1992 Practice Directive] continues to apply to mortgage transactions other than transactions where the electronic real time cleared funds transfer capability is utilized. Where that capability is utilized and subject to the provisions of the agreement of purchase and sale, it would be acceptable for the purchaser’s lawyer to transfer the amount required to pay out the institutional mortgage directly to the vendor’s lawyer’s trust account. The purchaser’s lawyer would rely on the vendor’s lawyer’s personal undertaking to deliver the discharge funds to the mortgagee and procure a discharge of this mortgage. 90
Bear in mind that if the transaction is title insured, the repayment of an institutional mortgage through either the LVTS or the ACSS banking system is a covered risk under the policy of title insurance. If the mortgage is never repaid by the vendor’s solicitor, the title insurer is prohibited from claiming over against the solicitor for the purchaser or mortgagor for this loss, unless there has been gross negligence or wilful misconduct on
86 Source documentation such as a birth certificate, passport or Ontario drivers’ license should be required. 87 The completed questionnaires have been supplied by each of the title insurers on a courtesy basis and for discussion purposes only. These questionnaires may not be relied on to qualify or supplement insurance coverage or to establish or qualify a standard of care for lawyers. 88 The questionnaires are scheduled alphabetically to this paper by name of title insurer in order to show no bias. 89 1992 Practice Directive, supra note 13; Real Estate Practice Guide, supra note 12. 90 Practice Guidelines for Electronic Registration, supra note 10.
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the part of such solicitor and this is provided in the Release and Indemnity Agreement signed by the LSUC and the applicable title insurer.91 To the same extent, if there are additional monies required to be paid to the institutional mortgagee by reason of the E & O E exception in a discharge statement, or by reason of additional monies being drawn on the vendor’s credit line which are not shown on the discharge statement, these risks are also covered risks under the title policy.
Bear in mind that if there is a shortage in the mortgage discharge funds and the mortgagee refuses to discharge an institutional mortgage, the title policy does not protect the vendor’s solicitor who does not obtain the benefit of the policy of title insurance. Furthermore, the Release and Indemnity Agreement signed by the title insurer does not prohibit the title insurer from later claiming over by subrogation against the vendor’s solicitor for breach of a personal undertaking given to the purchaser’s solicitor in respect of the discharge a mortgage.92
9. LAWPRO® Insurance
An interesting exclusion to the negligence coverage for Ontario lawyers in the context of giving undertakings is specified in Part III (f) of the LAWPRO® Professional Liability Policy is provided in Part III (f), which provides that the policy does not apply,
to any CLAIM in any way relating to or arising out of any undertaking, agreement or promise by an INSURED, in which the INSURED assumes responsibility for his or her own or another’s performance of an undertaking, agreement, promise or payment of a debt.
By way of example, LAWPRO® has given the scenario of an undertaking to pay realty tax arrears where the money is in the lawyer’s trust account and it is inadvertently paid out to the client through a clerical error, which error would be a covered risk. On the other hand, if the undertaking was given by the lawyer knowing that the money was not at that time in the lawyer’s trust account, then the lawyer has taken a personal risk and that risk would not be a covered risk under the policy.93
10. The British Columbia Experience
No discussion of solicitor’s personal undertakings to discharge mortgages would be complete without some comment on the experience of the real estate bar in British Columbia. In 2002, Martin Wirick, a Vancouver lawyer representing a developer,
91 Pursuant to the Release and Indemnity Agreement, the title insurer has agreed in respect of the lawyer acting for the transferee or mortgage to: (a) indemnify and save the lawyer harmless from claims under the title policy, save and except for gross negligence or willful misconduct; and, (b) release its right to maintain a negligence claim against the lawyer, save and except of gross negligence or willful misconduct. 92 This is provided in Endorsement No. 2 to the LawPRO® policy of Professional Liability Insurance for lawyers in Section C. (v). 93 LAWPRO®, Undertakings & Exclusions in the Professional Liability Policy: Real Estate Issues., online:
<http://www.lawpro.ca/news/archive_sections/insurance_coverage4.asp>.
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was discovered to have breached numerous personal undertakings to discharge institutional mortgages by failing to pay out and discharge those mortgages and instead applying the funds for other development purposes. In 2008, the Law Society of British Columbia (“LSBC”) noted that it had paid out $38.4 million in claims and that all of the claims had not then been settled.
The LSBC was of the view that the typical delay in the provision of mortgage discharges by financial institutions had contributed to allowing the scheme to remain under the radar for a period of three years.
In 2003, new rules of practice were implemented in British Columbia to ensure that it would be unlikely that there would be a repeat of the Martin Wirick discharge scenario and the “30‐30” rule94 was adopted by the LSBC. The 30‐30 rule reflects the expectation that a financial institution will now have 30 days after a mortgage repayment in which to issue a discharge, and that the lawyer responsible for the discharge (usually the vendor’s lawyer) will have a further 30 days to register the discharge. The 2003 rules also require a lawyer to report to the LSBC the failure of another lawyer or a notary to provide evidence that he or she has filed a registerable discharge of mortgage within the 60 day period. After the 60 days have elapsed, the lawyer then has 5 business days to report the outstanding discharge, in the form prescribed by the LSBC under the 2003 rules. 95
Qualifiers to Undertakings Qualifiers to undertakings are typically described as best efforts, commercially reasonable efforts and reasonable efforts.96 Adding a qualifier to an undertaking implies that the parties realize that the outcome is uncertain and that the giver of the undertaking may not be able to achieve the stated objective of the undertaking. By way of example, consider the difference between: (a) an undertaking to discharge where the obligation to discharge the mortgage is required to be satisfied; and, (b) an undertaking to use best efforts to obtain tenant estoppels, where the obligation is satisfied if best efforts are made by the undertaking party even if the requested tenant estoppels can ultimately never be provided. Where a qualifier is added to an undertaking, both parties need to assess at the outset the likelihood that the undertaking can ultimately be satisfied. If your client is the recipient of the
94 Law Society of British Columbia, Law Society Rules 2015, Rules 3‐95 and 3‐96. 95 The B.C. Real Estate Association’s standard form of purchase agreement incorporates by reference the CBA Standard Undertakings (BC Branch) which require, inter alia, delivery to the purchaser’s solicitors, within five business days of closing, of a copy of the solicitor’s letter enclosing the discharge funds along with evidence of receipt of such funds by the institution. The CBA Standard Undertakings are designed to reflect “transparency” in the discharge process to all parties. 96 There are other variations in this language.
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undertaking, confirm that he or she is prepared to accept the risk that the undertaking cannot be satisfied.97 1. Reasonable Efforts
A number of courts have canvassed the meaning of “reasonable efforts”. In 1092369 Alberta Ltd. v. Joben,98 Russell Brown J. of the Alberta Court of Queen’s Bench commented that,
While “reasonableness” does not require that a party spare no effort or leave no stone unturned – for example, Dickson J. wrote in Dynamic Transport Ltd. (at 1083) of “best efforts” as requiring “do[ing] all that is necessary” – it nonetheless denotes a prudent and moderate measure of sustained diligence necessary to give business efficacy to the object of the parties’ underlying agreement… Alternatively put, it describes the effort that a reasonable person, committed to achieving the objective would have undertaken.
In Ontario (Ministry of Transportation) v. O.P.S.E.U.,99 Kaplan V‐Chair of the Ontario Grievance Settlement Board noted that,
[R]easonable efforts does not mean “all efforts”. It does not mean “efforts to the point of undue hardship”. It does not mean “every effort”. What it means is efforts that are reasonable in the circumstances all things considered. What is reasonable in the circumstances will, obviously, depend on the facts of the particular case.
2. Best Efforts
In general, best efforts impose a higher obligation than reasonable efforts. In Gheslagi v. Kassis,100 Power J. of the Ontario Superior Court of Justice commented that,
“Best efforts” mean just what one would expect the words to mean. The words mean that counsel and his/her client will make a genuine and substantial search for the requested information and/or documentation. The undertaking is not to be taken lightly – a cursory inquiry is not good enough. The word “best” is, or course, the superlative of the adjective “good” (good‐better‐best) and must be interpreted in that light. If a party and/or counsel is/are not able to discover the subject of the undertaking, he/she/it must be able to satisfy a court that a real and
97 The preference would always be to confirm these instructions in writing. 98 2013 ABQB 310, [2013] A.W.L.D. 2740 (Alta. Q.B.). 99 47 C.L.A.S. 405, 64 L.A.C. (4th) 38 (Ont. Grievance S.B.). 100 [2003] O.J. No. 5196, 127 A.C.W.S. (3d) 859 (Ont. S.C.J.).
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substantial effort has been made to seek out what is being requested of the other party.
In Eastwalsh Homes Ltd. v. Anatal Development Ltd.,101 Ewaschuk J. of the Ontario Supreme Court noted that,
The plaintiff contends that the phrase “best efforts” has been authoritatively defined in CAE Industries Ltd. v. R., [1983] 2 F.C. 616 (T.D.)… There, Mr. Justice Collier, at p. 639, defined “best efforts” not to mean second‐best efforts but to require the requisite party to leave no reasonable stone unturned to discharge its duty. I accept that definition, which, as I understand it, requires first‐class, as opposed to second‐class efforts. However, I qualify that duty as not requiring the party to sacrifice itself totally to the economic interests of the party to whom the duty is owed, although the interests of the other party must predominate. The plaintiff contends that “best efforts” is an objective and not a subjective standard, as contended by the defendant. I accept the plaintiff’s submission and find support for it in BEM Enterprises Ltd. v. Campeau Corp. (1980), 24 B.C.L.R. 244.
In Atmospheric Diving Systems Inc. v. International Hard Suits Inc.,102 Dorgan J. of the British Columbia Supreme Court noted that,
“Best efforts” means taking, in good faith, all reasonable steps to achieve the objective, carrying the process to its logical conclusion and leaving no stone unturned. “Best efforts” include doing everything known to be usual, necessary and proper for ensuring the success of the endeavour.
The meaning of “best efforts” is, however, not boundless. It must be approached in the light of the particular contract, the parties to it and the contract’s overall purpose as reflected in its language.
3. Commercially Reasonable Efforts
The meaning of “commercially reasonable efforts” has received little judicial consideration.
101 [1990] O.J. No. 564, 72 O.R. (2d) 661 (Ont. H.C.); Appeal upheld in Eastwalsh Homes Ltd. v. Anatal Development Ltd., [1993] O.J. No. 676, 100 D.L.R. (4th) 469 (Ont. C.A.). 102 [1994] B.C.J. No. 493, 13 B.L.R. (2d) 243 (B.C. S.C.).
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In their blog post, Geoff R. Hall and Lama Sabbagh have commented that,103
A commercially reasonable best efforts obligation … allows the promisor to exercise business judgment and consider its own financial interests and does not require the promisor to exhaust all possible means of fulfilling its obligation nor to undertake steps which are expensive or time consuming; it describes the effort that a reasonable person, committed to achieving the objective would have undertaken.
In a recent article Joe Brennan 104 noted that, [The term “commercially reasonable efforts”] ought to be treated with caution and perhaps with the inclusion of a description of what would or would not constitute “commercially reasonable efforts” in the particular circumstances. In interpreting “commercially reasonable efforts”, the Courts have determined that there exists a distinction between the term “commercially reasonable efforts” and “best efforts” and that “commercially reasonable efforts” are something less than “best efforts”. But it remains an open question as to whether “commercially reasonable efforts” are a higher or lower standard than “reasonable efforts”. In fact some argue that “commercially reasonable efforts” are exactly same as “reasonable efforts” since reasonable means reasonable in the circumstances and the circumstances are commercial.
In contrast, E. Jane Sidnell and Christopher P. Knight 105 argue that,
The question to be considered is whether “commercially reasonable” implies a lower or a higher standard from “reasonable efforts”. That is, are “commercially reasonable efforts” restricted only to steps that might be commercially acceptable, thus making a less onerous standard, or does “commercially” raise the bar such that the standard is closer to “best efforts” but only in a commercial context? This is an open question.
103 Geoff R. Hall and Lama Sabbagh, “Reasonable Efforts vs. Best Efforts – Why the Fuss?” Canadian M&A Perspectives (August 5, 2014), online: McCarthy Tetrault <www.canadianmergersacquisitions.com/2014/08/05 /reasonable‐efforts‐vs‐best‐efforts‐why‐the‐fuss/>. 104 Joe Brennan, “Best Efforts, Reasonable Efforts, Commercially Reasonable Efforts of Reasonable Best Efforts?” (January 5, 2015) online: Shea Nerland Law <http://sheanerland.com/insights/best‐efforts‐reasonable‐efforts‐commercially‐reasonable‐efforts‐or‐reasonable‐best‐efforts/>. 105 E. Jane Sidnell and Christopher P. Knight, ““Best Efforts” – “Reasonable Efforts” – “Commercially Reasonable Efforts” – What Do These Terms Mean?” (June 11, 2010) online: Mondaq <www.mondaq.com/canada/x/102510/ Contract+Law/Best+Efforts+Reasonable+Efforts+Commercially+Reasonable+Efforts+What+Do+These+Terms+Mean>.
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The same authors also note that,
One possible interpretation of [“commercially reasonable efforts”] is that the market dictates the objective measure of value so as to determine how far the obligation must be taken.
Another plausible interpretation of “commercially reasonable efforts” has been suggested by Walter Traub: 106
“Commercially reasonable efforts”, based on the meaning of the word “commercial”, would limit the steps or proceedings required by the undertaking to reasonable commercial steps or proceedings in the circumstances, as opposed to additional litigation steps or proceedings. As such, “commercially reasonable efforts” would exclude any obligation on the solicitor to obtain the objectives of the undertaking through the courts.
General Guidance on Undertakings and Practice Tips
1. Rules of Professional Conduct
Rule 5.1‐6 of the LSUC Rules of Professional Conduct107 provides that a lawyer must strictly and scrupulously fulfil any undertakings given by him or her and honour any trust conditions accepted in the course of litigation. The commentary to this Rule further provides that unless clearly qualified, a lawyer’s undertaking is a personal promise and responsibility. Rule 7.2‐11108 provides that a lawyer shall not give an undertaking that cannot be fulfilled and shall fulfill every undertaking given and honour every trust condition once accepted. The commentary to Rule 7.2‐11109 provides some helpful advice on the giving of undertakings. Among other things, it notes that undertakings should be written or confirmed in writing and further that undertakings should be clear and unambiguous.
2. Giving and Accepting Undertakings
Although not required by the Rules of Practice, lawyers should always give their undertakings in writing or confirm undertakings in writing.110
106 Conversation between the author and Walter Traub. 107 Rules, supra note 8. 108 Rules, ibid. 109 Rules, ibid. 110 Rules, ibid, Commentary to Rule 7.2‐11.
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The Real Estate Practice Guide for Lawyers111 provides the following practice tips for giving or accepting personal undertakings on closing:
o Do not give an undertaking that cannot be fulfilled.
o Fulfill every undertaking given in a timely manner.
o Ensure the wording of an undertaking is clear.
o Ensure that the undertaking is in writing.
o If you do not intend to accept personal responsibility, this should be clearly stated in the undertaking.
o Consider imposing a time period in which the undertaking must be fulfilled.
o Provide for contingencies – e.g., if the obligations in the undertaking are contingent on certain events occurring, indicate what will happen if these events do not occur.
The importance of ensuring that the undertaking does not exceed the contractual obligations contained in the purchase agreement or loan commitment cannot be overlooked. Alan G. Silverstein has commented that,
An undertaking delivered must be compatible with the terms of the Agreement of
Purchase and Sale, the document negotiated by the parties that governs their
relationship from contract to closing. No undertaking should expand upon those
provisions, foisting additional obligations upon either or both of the client or the
lawyer, without clear (preferably written) instructions from the client. Nor should
an undertaking derogate from or prejudice a client’s rights as outlined in an
Agreement of Purchase and Sale.112
The following additional tips for drafting undertakings are provided by LAWPRO® in their Avoid A Claim blog: 113
o It is good practice to include a time period within which undertakings should be fulfilled.
111 Supra note 12. 112 Citing Donahue, D.J. & Quinn, P.D., Real Estate Practice in Ontario. (Fifth ed.), (1995, Toronto: Butterworths). 113 Mahwash Khan, “Undertakings 101: Manage your risk” Avoid a Claim (June 16, 2016), online: LAWPRO® <http://avoidaclaim.com/2015/undertakings‐101‐manage‐your‐risk/> [Avoid A Claim].
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o In some cases, providing for contingencies may be appropriate, for example in situations where the completion of an undertaking depends on certain events taking place – provide a course of action if the events do not take place.
o The word “undertaking” does not need to be used by a lawyer to create an obligation.
o Non‐lawyers should not be permitted to give or accept undertakings on behalf of a lawyer or client unless they have been directly instructed to do so. Any undertaking given or accepted by a non‐lawyer is the responsibility of the supervising lawyer.
o Do not give or accept personal undertakings to discharge private mortgages; this type of mortgage should be discharged on or prior to closing.
o Do not accept a “best efforts” undertaking unless you have explained the risk to your client (that the other lawyer’s best efforts may not result in the matter being resolved) and he or she instructs you to go ahead. Confirm the instructions in writing.
3. Managing Undertakings
Guideline 3 of the Residential Real Estate Transactions Practice Guidelines 114 provides as follows:
o Lawyers should maintain a system to follow up on undertakings regarding
mortgage discharges and/or other undertakings given or received during the course of a transaction.
o Lawyers should approach a post‐closing claim relating to an undertaking to re‐adjust in good faith, advising clients of their rights and obligations and attempting to resolve the situation (subject to reporting the claim to the purchaser’s title insurer, if any), and following the instructions of the insurer.
The Avoid A Claim blog115 also provides the following general tips for managing undertakings:
o Manage your risk by analyzing when to give and accept undertakings. Consider the
following three concepts: first, the lawyer should have control over the completion of the undertaking; second, the lawyer must be able to complete the task; and third, the undertaking must be clearly communicated in unambiguous
114 Residential Real Estate Transactions Practice Guidelines, supra note 11. 115 Supra note 112.
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terms. When the elements of competence, control, and clarity are missing – giving and accepting an undertaking can be risky.
o Make clients aware of all undertakings relating to their transactions; make sure they understand the risks associated with giving or accepting each undertaking.
o Finally, simply giving an undertaking does not replace the completion of the action required. Implement a system to ensure every undertaking that you give or accept is recorded in a tickler system and satisfied in accordance to its terms (and any applicable law society).
Consequences of Failure to Comply With or Honour Undertakings
There are many consequences for failure to comply with or to honour undertakings and these are the following: 1. Letters threatening to report you to the LSUC
The Commentary to Rule 3.2‐5116 notes that it is not improper for a lawyer to request that another lawyer comply with an undertaking or trust condition or other professional obligation or face being reported to the Law Society.
A suggested follow‐up practice for a solicitor’s discharge undertaking might be the following:117
Diarize the date for fulfilment of the undertaking.118
Send a reminder letter.
Send a follow up reminder letter.
Send a further letter reminding the solicitor of the deadline for fulfilment of the undertaking and advising that failure to respond within [SET NUMBER OF DAYS] will result in reporting the matter to the LSUC.
If the undertaking has still not been satisfied, report the matter to the LSUC.
2. Disciplinary proceedings by the LSUC
Along with costs of the disciplinary proceeding, penalties and a suspension can be imposed. In serious cases, such as those involving misappropriation of funds there would also be disbarment. Also, disciplinary proceedings are a matter of public record.
116 Rules, supra note 8. 117 Obviously each file is different and therefore no methodology will be suitable for all purposes. 118 For a transaction completed pursuant to an OREA® form of purchase agreement, this would be “within a reasonable period of time after completion”.
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3. Denial of Insurance Coverage
As noted earlier in this paper, gross negligence and wilful misconduct are excluded from the negligence coverage provided to solicitors under the LawPRO® Professional Liability Policy.As well, there is a specific exception to coverage pertaining to undertakings and trust property as set out in Part (III) (f) of the policy. Undertakings given fraudulently or which may be tainted with criminal implications or breach of professional ethics may also not be covered by professional liability insurance.119
4. Criminal action
A criminal action may be commenced in appropriate circumstances. By way of example, where a lawyer has given a personal undertaking to discharge a mortgage and has instead fraudulently used these monies for other purposes, criminal charges may be laid.
5. Contempt proceedings
Contempt proceedings may be taken. See, for example, Cain v. Genereux,120 where the solicitor failed to honour his undertaking to discharge mortgages in a sale transaction on a timely basis. In that case, an application was commenced to compel the solicitor to comply with his undertaking which resulted in an order to comply. When the solicitor failed to also comply with the order, a motion was brought to commit the solicitor for contempt for failing to comply with the order. This resulted in a further order requiring the solicitor to pay a fine of $1,000 within six months or to serve three months in jail.
6. Cost Consequences
Although not the focus of this paper, in a civil action the failure to honour an undertaking can result in civil sanctions such as cost consequences.
7. Damages
An action for damages against the solicitor may result.
Polischuk v. Hagerty121
In Polischuk v. Hagarty, the purchaser’s solicitor accepted an undertaking to discharge a private mortgage contrary to the terms of the purchase agreement which required a discharge on closing.122 In that case, the vendor’s solicitor (and the vendors) subsequently
119 Traub, Undertakings: The Necessary Evil, supra note 18. 120 21 R.P.R. 156, 9 A.C.W.S. (2d) 339 (Ont. H.C.). 121 Polischuk, supra note 43. 122 The transaction which was the subject of the undertaking closed on September 28, 1978, prior to the publication of the 1981 Practice Guidelines. Several lawyers testified that in the area of London Ontario at that time it was the practice to accept personal undertakings to discharge private mortgages.
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failed to honour the undertaking to discharge. Although the Compensation Fund of The Law Society of Upper Canada provided some funds, these were not sufficient to compensate the purchasers for their legal expenses in pursuing remedies or of forestalling foreclosure.
Ultimately the purchasers’ lawyer was held liable in negligence to the purchasers and damages of $18,694.07 were awarded.
The appeal court noted that there was no evidence that the vendor’s solicitor would have refused to close subject to a holdback or subject to a cheque payable to the mortgagee. As well, the finding of what the plaintiffs would have done if they had been advised of the available alternatives was purely speculative and lacking any evidentiary basis.
Bank of British Columbia v. M.123
Bank of British Columbia v. M. involved an undertaking given by a solicitor to the bank with respect to the delivery of funds apparently owing to the client by the U.S. Department of Immigration & Naturalization. No such funds were ultimately found to be owing to the client. One point of note is that the solicitor had signed conflicting undertakings, one as a form of acknowledgment provided to the bank which appeared more absolute, and the other on her own letterhead which qualified the undertaking. At trial the solicitor was held liable by Legg J. on the basis that, “…the defendant was not compelled to give the undertaking which she gave, but the bank did send the defendant the certified cheque on the security of her undertaking which the bank requested. In my view, it would be unjust to not enforce the undertaking on these circumstances.” In a split decision, this judgment was reversed on appeal. Nemetz C.J.B.C. noted that in respect of the bank’s form of acknowledgement,
Nowhere in that letter is there any suggestion that Mrs. Mutrie was guaranteeing that in the event that no such funds existed she would pay this out of her own pocket. To arrive at such a conclusion is to accept the shadow and not the substance of the transaction.
Global Marine Drillships Ltd. v. L Bella & Ors124 Global Marine Drillships Ltd. v. La Bella & Ors is a complicated case involving the arrangement of letters of credit from HSBC and Deutsche Bank, in the amounts of $200 million and $150 million respectively, which letters of credit were required in order to secure a line of finance proposed to be provided by J.P. Morgan in Singapore in the
123 Bank of British Columbia, supra note 29. 124 [2014] EWHC 2242 (Ch) (07 July 2014).
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amount of $245 million. The letters of credit were required to be further supported by an insurance policy covering the risk of a claim being made by J.P. Morgan against these letters of credit. The client of the solicitor was the party arranging the letters of credit and the insurance policy and it was contractually entitled to be paid arrangement fees of £56 million. The solicitor received US $32 million from the plaintiff’s solicitors pursuant to trust conditions agreed by the parties and she undertook to hold these funds in her trust account. With respect to $10 million, the solicitor’s undertaking provided that the monies could only be released for the purchase of a policy of insurance, the premium for which was $10 million. Over a protracted period of time, after heavy pressure from the client who harassed her, threatened to sue her and threatened to report her to the law society, the solicitor did make two transfers of money to the client out of trust totalling $5 million. This was on the strength of client assurances that the premium for the insurance policy had been paid and that the policy was in place. Neither fact turned out to be true. The entity to whom the trust money had been paid used the funds for other purposes and then was declared insolvent. Ultimately the solicitor was held liable for the loss. Mr. Justice Newey concluded in his judgment that,
This is a sad case. It is a tragedy that Miss Yildiz did not continue to hold out against Mr. La Bella’s demands. The fact that she was subjected to intense pressure does not, however, provide her with a defence to the claims that Global Marine makes, and neither of the defences in fact advanced on her behalf and that of Landmark has been made out. In the circumstances, I shall give judgment for Global Marine.
Discipline Cases
A number of discipline cases in Canada have considered whether a solicitor should be disciplined in the context of failure to perform of fulfil a solicitor’s personal undertaking.
1. Failure to Ensure Undertaking Could be Performed
Law Society of Alberta v. Amanoh125
In Law Society of Alberta v. Amanoh, the solicitor acted on a sale transaction between family members. The purchaser, who was a long‐time client of the solicitor, was a realtor who was represented by another solicitor at the request of the purchaser’s mortgagee. On closing the vendor’s solicitor gave an undertaking to discharge all of the mortgages on
125 2010 ABLS 31.
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title, knowing that the balance due on closing was insufficient to repay all of these mortgages. The understanding from the realtor was that that two of the mortgages were to be discharged by porting them to other properties. The vendor’s solicitor relied on her prior dealings with the purchaser in giving the undertaking to discharge, rather than investigating the matter herself and obtaining a firm commitment from these mortgagees to port their mortgages. When the solicitor was ultimately unable to comply with her undertaking she attempted to return the monies with a request to reverse the transaction.
The Hearing Committee of the Law Society of Alberta was satisfied that the Member’s conduct was deserving of sanction. It was noted that, “The Chair delivered a reprimand, which expressed denunciation for the conduct of the lawyer and expressed that undertakings given by lawyers are fundamental to the practice of law and must be complied with, nor can a member who is unable to satisfy their undertakings, endeavour to put the onus of solving the problem back on to other counsel by returning the cash to close and requesting a transfer back from the buyer’s lawyer.”.
2. Failure to Fulfill Undertaking
Law Society of New Brunswick and J. Douglas Howes126
In Law Society of New Brunswick and J. Douglas Howes, counsel was disciplined for a number of actions, one of which was that he failed to fulfill undertakings given in real estate transactions. In its reasons the Discipline Committee noted the following:
The effective practice of law would not be possible without undertakings. The promise of a lawyer to another to carry out an action, deliver a document, register a transaction, and so on, is paramount to the good conduct of a law practice, the effectiveness of the profession and to clients’ commerce and interests. One can hardly imagine a transactional practice without solicitor’s undertakings. Litigation would become cumbersome and more expensive for clients if barristers could not give and rely on undertakings.
A lawyer who does not honour his undertakings impacts not only the colleague who received the undertaking, but also imperils the entire legal infrastructure that lawyers have depended on for centuries, and thus impacts the public’s trust in the profession.
Where there are no aggravating circumstances, the authorities dictate fines for failure to fulfill undertakings. But where there are aggravating factors, such as here, the penalty can include suspension.
126 2012 NBLSB 4.
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3. Failure to Follow Up and Complete an Undertaking on a Timely Basis
Law Society of Alberta v. ABDI127
In Law Society of Alberta v. ABDI, the solicitor (Mr. Abdi) acted on the refinancing of his client’s home. There were two mortgages on title; one was to be discharged and the other was to be postponed to the new mortgage. The clients subsequently sold their home and another lawyer (Ms. Papp) acted on the sale transaction. Prior to closing, Ms. Papp wrote to Mr. Abdi regarding the two outstanding mortgages and his assistant replied by fax that both mortgages had been repaid. Mr. Abdi did not review this correspondence before it was sent. The sale transaction then closed. After repeated requests to fulfil his undertaking over a period of nine months, Ms. Papp reported the matter to the Law Society of Alberta.
In its judgment the Committee cited the following extract from Lawyers & Ethics128:
The purposes of law society discipline proceedings are not to punish offenders and exact retribution, but rather to protect the public, maintain high professional standards, and preserve public confidence in the legal profession.
In cases in which professional misconduct is either admitted or proven, the penalty should be determined by reference to these purposes…
The seriousness of the misconduct is the prime determinant of the penalty imposed. In the most serious cases, the lawyer's right to practice will be terminated regardless of extenuating circumstances and the probability of recurrence. If a lawyer misappropriates a substantial sum of clients' money, that lawyer's right to practice will almost certainly be determined, for the profession must protect the public against the possibility of a recurrence of the misconduct, even if that possibility is remote. Any other result would undermine public trust in the profession.
The Committee then cited Bolton v. Law Society:129
If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends on trust.
The Committee ruled that that conduct of the Member was deserving of sanction. It delivered a reprimand and the Member was ordered to pay a fine of $1,000 and costs.
127 2011 ABLS 20. 128 Gavin MacKenzie, Lawyers & Ethics: Professional Responsibility and Discipline (looseleaf) (Scarborough, Ont.: Carswell, 1993). 129 [1994] 1 WLR 512, [1994] 2 All ER 486.
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Law Society (British Columbia) v. Heringa130
In Law Society (British Columbia) v. Heringa, the solicitor (Mr. Heringa) acted as counsel for the owners on a refinancing of a property. Proceeds of the refinancing were paid to his clients on the strength of his undertaking to discharge a mortgage on title for which he had received a mortgagee’s acknowledgement that she had been paid in full. The mortgagee subsequently died and there was no follow up on the discharge of the mortgage by the solicitor over a period of about four years, despite repeated requests to do so. Ultimately the refinanced mortgage went into foreclosure proceedings and the solicitors for the mortgagee reported the breach of undertaking to the Law Society.
The panel held that Mr. Heringa was guilty of professional misconduct. The penalty for this was a one month suspension and costs of the proceeding.
On appeal Mr. Heringa argued that there was no time restraint given in his undertaking and that the panel erred in law by implying a term of punctuality in his undertaking. The appeal court did not agree.
Mr. Heringa also argued that an undertaking is not breached until it is no longer capable of being fulfilled. The appeal court did not agree.
In affirming the original judgment the appeal court noted that the heart of the panel’s reasoning was as follows:
Undertakings are not a matter of convenience to be fulfilled when the time or circumstances suit the person providing the undertaking; on the contrary, undertakings are the most solemn of promises provided by one lawyer to another and must be accorded the most urgent and diligent attention possible in all of the circumstances.
The trust and confidence vested in lawyer’s undertakings will be eroded in circumstances where a cavalier approach to the fulfillment of undertaking obligations is permitted to endure. Reliance on undertakings is fundamental to the practice of law and it follows that serious and diligent efforts to meet all undertakings will be an essential ingredient in maintaining public credibility and trust in lawyers.
Clendening, Re131
In Clendening, Re, the solicitor acted as counsel on a sale transaction. In connection with the discharge of two mortgages on title, Mr. Clendening gave an undertaking to “use diligent and commercially reasonable efforts” to discharge these mortgages. After repeated reminders over a period of eighteen months, the recipient of the undertaking reported the breach to the Law Society.
130 2004 BCCA 97, [2004] B.C.J. No. 377 (B.C. C.A.). 131 2007 LSBC 10.
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The Hearing Panel noted that the breach was at the lower end of the spectrum, but pointed out that the breach was aggravated by the failure to respond to communication from the notary who received the undertaking. As well, counsel had previously been the subject of a conduct review. The Hearing Panel held that the failure to comply with the undertaking and to respond to communication constituted professional misconduct. There was an order for a fine of $7,500 and costs of $2,500.
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APPENDICES 1. Title Insurer Questionnaire – Chicago Title.
2. Title Insurer Questionnaire – First Canadian Title.
3. Title Insurer Questionnaire – Stewart Title.
4. Title Insurer Questionnaire ‐ TitlePLUS®.
5. CBA Contact List for Matters Involving Mortgage Discharges.
SCHEDULES 1. Rules of Professional Conduct – Rules 3.2‐5.1, 5.1‐6 & 7.2‐11 .
2. Residential Real Estate Transactions Practice Guidelines.
3. Practice Guidelines for Electronic Registration of Title Documents, approved by
Convocation June 28, 2002.
4. Electronic Registration – Rules of Professional Conduct and Practice Guidelines.
5. Real Estate Practice Guide for Lawyers, 2010 – pages 13‐16.
6. The Advisor Supplement, September 1992, Undertakings to Discharge Mortgages.
7. Mortgage Transactions in Electronic Registration (Practice Area Resource).
8. Show me the Money – Fund handling and the benefits of wire transfers.
9. Important Information Regarding Payment of the Real Estate Transaction Levy – LSUC.
10. Endorsement No. 2 – Real Estate Transaction Levy Surcharge – LawPRO® Professional
Liability Insurance.
11. Overview of Undertakings and Trust Conditions (Practice Area Resource).
12. Undertakings & Exclusions in the Professional Liability Policy: Real Estate Issues ‐
LawPRO®.
13. Avoid A Claim: Undertakings 101: Manage your risk.
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14. Avoid a Claim – Coverage exception in title insurance policies catches lenders’ lawyers off
guard, posted February 3, 2015 by Kathleen Waters.
15. Sample discharge request letter – adapted by Caterina Galati from the sample form of
letter contained in the LSUC’s former Bar Admission Course materials. 132
16. Law Society Rules 2015 (effective July 1, 2015), Law Society of British Columbia.
132 Galati, Caterina, Discharge of a Collateral Charge Securing a Line of Credit – Avoiding the Traps, Practice Gems: Title and Off‐Title Searching 2010, the Law Society of Upper Canada, Toronto, 2009.