Canadian Lawyer

Also among the review's 101 recommendations are: • the guiding principles of the act be expanded to include a statement on cultural safety and equality between people with mental and physical health issues and between  people with different mental health issues; • the UN Convention on the Rights of Persons with Disabilities should be referenced in the act; • the objectives of the act be amended to provide additional explicit protection to the rights of patients being involuntarily evaluated, assessed, admitted, or treated under it. One area where the co-chairs opted not to recommend change: providing assistance to family members making application to the court. Under the act, judges of the Supreme Court of Nova Scotia are authorized to order a psychiatric assessment and many people who provided input to the review suggested family members, in particular, should be provided with support to help them make applications to the court. "The review concluded not to go in this direction for two reasons," says Lahey. First, he notes, clinicians and program managers made it clear the clinical assessment of someone under the act is the same whether the assessment is ordered by a judge or not, and second, the chairmen's conclusion that to the extent the act is not being applied when it should be, "the system could do better than relying on the courts to fix this problem." The government is currently considering the proposed recommendations and Health and Wellness Minister Leo Glavine has said he supports the direction of the review and its recommendations. He has promised to meet with interested parties to examine the recommendations in more detail. — DM Central Missing deeds in Lac-Mégantic W hen the runaway train hauling crude oil derailed, crashed, and exploded in the town of Lac-Mégantic, Que., last summer, killing 47 people and incinerating most of the downtown area, it also destroyed close to 100,000 legal documents, adding administrative headache to the misery of personal loss and environmental devastation. On Dec. 6, 2013, the Quebec legislature adopted a special bill to simplify and speed up the procedure to replace and reconstitute the lost documents. These documents, which were held in the vaults of two notary firms' offices, included deeds such as marriage contracts, wills, mandates of incapacity, property transactions, and various other files recording legal transactions. Notaries are both legal professionals and public officers. They are impartial agents who advise all parties to a transaction, draft legal documents and authenticate them, keep records of the transaction on behalf of the parties, and, as such, have the obligation to reconstitute their records in cases of destruction. The problem is the existing legal framework to replace or reconstitute a deed was not designed to deal with a situation as extreme as LacMégantic. The applicable Code of Civil Procedure articles (870-871.4) are aimed at situations where only a single or a few deeds were lost or destroyed by mistake. To remedy the situation, the Chambre des notaires, governing body of Quebec's notaries, asked the government to enact special legislation in order to ease this massive restoration effort. Alain Roy, a law professor at the Université de Montréal and president of the advisory committee on family law, succession (estates and trusts) law, and on the rights of the person at the Chambre des notaires, was appointed to draft the text of what is now known as Bill 65. "It proposes a simplified procedure for the replacement of deeds that is removed from the courts," he said in an interview with Canadian Lawyer. This process of "déjudiciarisation" is the bill's central concept. Roy explains it will allow notaries to replace a destroyed document by filing an authenticated copy in the notarial records, which would thereby gain the same status as the original deed. In cases where replacement is not possible, the bill proposes the notary proceeds to reconstitute the deed, but only on request from an interested party. "Considering the sheer magnitude of the disaster, applying the actual law would impose an authentication process that requires for each replaced or reconstituted deed to be submitted to the scrutiny of a court of law, which would make the task impossible to accomplish," he says. Minister of Justice Bertrand St-Arnaud recognizes the investment the actual law would require in both human and financial terms would be so enormous it would impair the proper functioning of the judicial system. This bill solves the problem by giving notaries the power to www.CANADIAN Continued on page 10 L a w ye r m a g . c o m F e b r uary 2014 9

• Cover