Canadian Lawyer

Regional wrap-up No real estate licence required N ova Scotia's real estate regulator has, for the second time in seven years, attempted to constrain the activities of lawyers practising in the area. And for the second time, the Nova Scotia Real Estate Commission has been denied its request for an injunction against a Cape Breton law firm. In a recent decision from the Supreme Court of Nova Scotia, Justice Kevin Coady found that Lorway MacEachern in Sydney, N.S., was not required to obtain a real estate licence to provide the full range of services it offered clients. These included obtaining assessments, placing and removing "for sale" signs, and advertising sales in local publications. "There can be no doubt that many of these activities are identical to those of a licensed real estate agent. Other activities fall within the usual services of a lawyer. The critical question is whether lawyers are permitted to perform the non-lawyer activities by virtue of the section 3(d) exemption in the [Real Estate Trading Act]," Coady wrote in his 21-page decision. There were conflicting interpretations of the facts. Coady noted the practice of trading real estate was conducted primarily by lawyers prior to 1957 when the first provincial legislation regulating such trading was proclaimed. Following this date, some lawyers continued their real estate practices, and when the legislation was amended in 1996 the exemption for lawyers remained almost unchanged. An ordinary reading of that exemption simply requires a lawyer trading in real estate to be a member of the Nova Scotia Barristers' Society, an intervenor in the case. "If the legislature wanted to reel in lawyers from trading then they would have specifically so stated," said Coady. However, he added, "I have no convincing case law that supports this conclusion. I must accept that there could be ambiguity in the qualifying language." 8 F e b r uary 2014 www.CANADIAN On the surface, the Real Estate Trading Act and the Legal Profession Act also lead to conflicting legal interpretations. The definition of trading in the former is extensive enough to capture activity that comes within the definition of the practice of law in the latter. A broad reading of the exemption for lawyers in the RETA is, therefore, required, Coady concluded. "When this exemption is given a broad meaning it is possible to interpret the RETA in a way that does not conflict with the Legal Profession Act," he stated. "It cannot have been the intention of legislators to clothe real estate agents with authority to perform legal services." Atlantic Nova Scotia is not alone in its struggles to define the line between lawyer and real estate agent. The province is, however, the first to judicially consider the exemption of lawyers in real estate trading legislation. Other provinces, such as B.C. and Ontario, have attempted to deal with the divisiveness through legislative amendments. The legal battle for Lorway MacEachern may not yet be over. The Nova Scotia Real Estate Commission is considering an appeal. Perhaps the third time's the charm. — donalee Moulton donalee@quantumcommunications.ca 101 ways to improve the Involuntary Psychiatric Treatment Act T he first mandated review of Nova Scotia's Involuntary Psychiatric Treatment Act has concluded the legislation is healthy, but there are areas for improvement — 101 areas to be exact. While there was broad overall support for the legislation, proclaimed in 2007 to ensure those unable to make treatment decisions due to mental illness receive appropriate treatment, several problem areas were identified. One of these was the review board, made up of lawyers, psychiatrists, and members of the public, whose main role is to review the status of individuals admitted as involuntary patients into a psychiatric facility and of patients living in the community on a community treatment order. "The functioning of the review board has been unacceptably impaired by administrative issues, such as lapsing of appointments to the board and persistent difficulties in the scheduling and completion of hearings in accordance with the timelines set out in the act, and needs to be addressed on a priority basis," said William Lahey, a professor at the Schulich School of Law at Dalhousie University and co-chairman of the review. (Retired Supreme Court of Canada justice Gérard La Forest was the other co-chairman.) Serious concerns regarding the constitutionality of two of the human rights-related provisions in the IPTA were also identified: a different test for capacity and circumstances in which substitute decision-makers are required to disregard a patient's prior capable informed expressed wishes. "Both of these have the potential to stigmatize and reinforce prejudice against people with mental illness," says Aileen McGinty, a lawyer in Hammonds Plains, N.S. These provisions, she adds, are also vulnerable under two sections of the Charter of Rights and Freedoms. L a w ye r m a g . c o m

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