Canadian Lawyer

6 www.canadianlawyermag.com UPFRONT ONTARIO UPDATE NEWS BRIEFS Law commission on bill 161 The Law Commission of Ontario expressed disapproval of proposed changes to legislation governing class proceedings in the province. Specifically, the bill imposed superiority and predominance tests, requirements that the LCO has rejected. "These provisions fundamentally restructure class action law and policy in Ontario by shifting the CPA's longstanding certification test strongly in favour of defendants," the LCO said. Changes the LCO perceived in a positive light pertained to provisions concerning the timing of certification motions and administrative dismissal, carriage, multi-jurisdictional class actions, settlement approvals, settlement distributions, fee approval, third-party funding and appeals. New privacy tort recognized A family law case in Ontario's Superior Court of Justice has added a new tort to Ontario law by focusing on "the best interests of the children, the invasion of their privacy, and the effects of cyberbullying." The ruling, Yenovkian v. Gulian, 2019 ONSC 7279, could have implications for publishers and public statements by businesses — even as businesses are also seeing tighter regulatory risk on privacy as well, say lawyers from Torys LLP. "For a long time, this tort wasn't recognized partly because of the overlap with defamation. Especially with the new applications like deep fakes, this tort will take on a new light," says Torys senior associate Ronak Shah. Insurer ordered to pay professional fees When is an insurer "required" to pay professional fees? A recent ruling in Ontario unpacked that very ambiguity in an insurance contract, finding that an insurer should pay the fees of a church's professional quantity surveyor. The decision, Be In Christ Church of Canada O/A Welland Brethren in Christ Church v. Intact Insurance Company, 2019 ONSC 7412, said Intact must pay the church's surveyor fees of $22,588.70, As the church rebuilt from a fire. Gord McGuire, a partner at Adair Goldblatt BieberLLP in Toronto, who represented the church, says that there is little, if any, precedent of this particular issue. 1983 Condo rule overturned After more than 35 years, a panel of judges in the Court of Appeal for Ontario has overturned a long-standing interpretation of condominium law, citing the law's unnecessarily harsh effects. The Jan. 31 decision, York Region Standard Condominium Corporation No. 1206 V. 520 Steeles Developments Inc., 2020 ONCA 63, means that a condo corporation that doesn't comply with notice provisions may not always have its action quashed by the court. Instead, the panel of judges said, the court has the discretion to "fashion appropriate remedies" depending on the gravity of the procedural defect. Lawpro warns of identity fraud, title insurance Lawyers must be cautious of identity thieves targeting clients' nest eggs by way of title insurance loopholes applied to private mortgages. Lawpro says other title insurers often include transaction- specific "exceptions" to coverage. A transaction might not get fraud coverage if mortgage funds are not paid to "acceptable parties" in private lender transactions — in other words, if the funds are paid to the borrower's lawyer, the title insurer can deny fraud coverage. LSO fails to censure critic Some benchers wanted to limit input from outside groups, such as equity advisors THE LAW SOCIETY of Ontario did not move forward with two controversial measures concerning equity and diversity. The sibling motions at February's meeting aimed first to censure public criticism of the law society by non-benchers who participate in deliberations, and second, among other things, to study measures that would stop non-benchers from participating regularly in convocation meetings and other events. "There's been much talk of freedom of speech at convocation and elsewhere in re- cent months," said Treasurer Malcolm Mercer. "Respectfully, Convocation should be wary of restraining expressive freedom out of fear of injurious social media campaigns." The motions — which prompted outcry from a number of affinity groups and legal associations — stemmed from incidents involving the law society's equity advisory group and its discrimination and harass- ment counsel. The allegation, although not detailed in the motion, stemmed from a tweet made by the head of the lSO's equity advisory group, Nima Hojjati, on Jan. 20, which said that an un- named bencher asked for his resignation from the EAG, "[n]ot because of my work, but be- cause they could tell that 'I hate democracy by looking at me.' " Hojjati did not speak during Convocation's feb. 27 debate. However, Bencher Cheryl Lean said at the meeting that she was the bencher referred to by Hojjati, and that the

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