Canadian Lawyer

September 2021

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Page 8 of 51 7 rebates and inducements, he says. Described as an "unfair or deceptive act or practice" in s. 438 of the Insurance Act, insurers cannot make any "payment, allowance or gift or any offer to pay, allow or give, directly or indirectly, any money or thing of value as an inducement to any prospective insured to insure." Sections 3.2-9.5 and 3.2-9.6 in Ontario's Rules of Professional Conduct make the prac- tice problematic for lawyers, he says. Section 3.2-9.5 states: "A lawyer shall not receive any compensation, whether directly or indirectly, from a title insurer, agent or intermediary for recommending a specific title insurance product to their client." And under 3.2-9.6: "A lawyer shall disclose to the client that no commission or fee is being furnished by any insurer, agent, or intermediary to the lawyer with respect to any title insurance coverage." When the Financial Services Commission of Ontario did a market conduct review in 2008 and OK'd the practice, Ontario's other two major title insurers, First Canadian and Chicago Title, copied it. This spring, LawPRO's TitlePLUS announced it would also offer EC fees: $150 for a home purchase and $25 for a condo. "There are 500,000 real estate deals every year in Canada," says Hyde. "That's a million lawyers. This is far and away the legal profes- sion's largest touchpoint with the public that we're supposed to protect. And we're ripping them off. We're pocketing $150 that the clients really don't know about because it's all hidden." "The issue … I think, has implications for self-regulation and self-governance. If we don't get our house in order, in terms of this, this will one day become the greatest argument against the capacity of lawyers to self-regulate." Student Choice initiative counter to legislation governing colleges and universities: Court Q&A Student Choice initiative » Announced January 2019 » Students can opt out of paying for newspapers, food banks and other support services, student associations, clubs » Province said tuition would decrease by 10 per cent » Schools governed by University Acts and Ontario Colleges of Applied Arts and Technology Act Ontario's Court of Appeal confirmed a ruling by the divisional court, which found the Student Choice Initiative, announced by Doug Ford's Progressive Conservative government, is inconsistent with the legislation governing universities and colleges. Law Times spoke with Geetha Philipupillai and Louis Century, law- yers representing the York Federation of Students and the Canadian Federation of Students, who challenged the initiative. What were the most significant aspects of the Court of Appeal's ruling? Geetha: The Court of Appeal confirmed the Divisional Court's ruling that ministerial authority in relation to colleges and universities is constrained and restricted by existing legislation governing colleges and universities. It's not surprising or controversial that the Court of Appeal confirmed that the supremacy of the legislature trumps ministerial authority. All six judges of the Court of Appeal and Divisional Court who heard this case have agreed on this point. The decision also confirms that where the Divisional Court hears a judicial review at first instance and is not reviewing the decision of a tribunal below, it is the Housen standard that applies to the Court of Appeal's review of the Divisional Court's decision. The Court of Appeal will not hear the judicial review de novo or "step into the shoes" of the Divisional Court. The Court of Appeal's decision brings Ontario jurisprudence on this issue in line with the federal courts. What impact will this ruling have on the law? Geetha: This ruling confirms that the minister must exercise policy-making functions in accordance with the statutory backdrop governing Ontario universities and colleges. This is a positive development as the ruling recognized that student unions play an important role in internal governance and decision-making. Ontario's highest court has ruled that even though Ontario universities and colleges are publicly funded, the minister does not have a carte blanche to use its spending power to intervene in the internal affairs and democratic governance of student associations. What does this ruling say about the nature of the power exercised by the minister? Louis: While the Divisional Court held that the minister issued the Student Choice Initiative pursuant to the Crown's prerogative power, the Court of Appeal held that it was an exercise of the Crown's spending power. However, the decisions are consistent on the broader point that executive authority is always limited by legislative intent. *answers have been shortened "This is far and away the legal profession's largest touchpoint with the public that we're supposed to protect. And we're ripping them off." Tim Hyde, lawyer and former insurance executive Geetha Philipupillai Lawyer

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