In Société en commandite Place Mullins v. Services immobiliers Diane Bisson inc., 2015 SCC 36, the Supreme Court tackles the thorny issue of when real estate commissions are payable. Although the decision is based on a Quebec listing agreement, which differs from the listing contract commonly in use in Manitoba, the court’s comments in this uncertain area are instructive. These articles provide more detail: You only get to eat what you kill: real estate brokers as hunters and brokerage contracts as hunting licences - Canadian Appeals Monitor If I were now a Quebec broker… Implications of Societe en commandite Place Mullins v Services immobiliers Diane Bisson Inc. -The Court

The court dismissed Manitoba’s appeal of a Land Value Appraisal Commission compensation award in Kleysen v. Her Majesty the Queen in Right of the Province of Manitoba, 2015 MBCA 54, rejecting the province’s argument that LVAC failed to properly apply the definition of market value as set out in The Expropriation Act and that its $50,000 per acre expropriation award was unreasonable. Although the court agreed that “(t)he question of return on investment to the property owner is irrelevant to the determination of fair market value, and reference to such irrelevant factors should be avoided in order to avoid confusion as to the basis of the valuation,” in this case they found that LVAC based its decision on factors other than the value-to-owner test and arrived at an award that was “within an acceptable and reasonable range.”

In Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality), 2015 MBCA 53, the court rejected the applicant’s argument that it had been severely prejudiced by the dismissal of its appeal on an issue raised by the court (whether a conditional use order lapsed because it was discontinued under s.54 (now s.91) of The Planning Act). The court noted that counsel received notice of the court’s concern prior to the hearing, had an opportunity to address it by written and oral submissions, and did not object to this process at the hearing. In finding that the applicant had not met its heavy burden of establishing special or unusual circumstances to justify a rehearing of the appeal the court concluded: A motion for a rehearing is not an opportunity, with the benefit of hindsight, to revisit the conduct of an appeal by experienced counsel… To allow a rehearing in such circumstances would too quickly sacrifice the important principle of finality in litigation which is central to the proper administration of justice (para. 24).

An architectural firm will have to go to trial to defend a negligence claim following dismissal of their appeal of an order refusing them summary judgment in Winnipeg Condominium Corp. No. 613 v. Concord Projects Ltd. et al., 2015 MBCA 49. The appeal court was not persuaded that the motion judge’s decision concerning the existence of genuine issues for trial was wrong. The motion judge adopted the Master’s reasoning that, given the developing law on liability for pure economic loss, the question of whether the parkade design defect was latent or patent would require a trial on a complete record. The judge also found that expert evidence would be required concerning the foreseeability of the danger arising from the failure to ensure installation of a waterproof membrane in the parkade.

Despite clear evidence that the vendor and real estate agent defendants were “less than forthcoming” in their written and verbal disclosure concerning a known structural defect, the court dismissed the home purchaser’s fraud and negligence claim against them in Tregobov v. Paradis et al., 2015 MBQB 136, for lack of proof of reliance. There was no actionable fraud, said the court, because the plaintiff was aware that foundation work would be required, but did not request a property condition statement and made an unconditional offer to purchase.

The court ordered production of a solicitor’s notes concerning the drafting of a disputed joint will in Durand v. Durand (Estate of), 2015 MBQB 132, notwithstanding opposition by the surviving client and the solicitor’s assertion that redaction of the joint instructions would render the notes “useless for any purpose.” The court found that there was sufficient ambiguity in the way the will was drafted to bring it within the “Wills Exception” (allowing erosion of solicitor-client privilege in aid of ascertaining the deceased’s intention). With respect to the wife’s argument that her right to claim her privilege trumped the implicit waiver by the testator, the court said: Since the Wills Exception is directed to disclosure of the deceased client’s instructions to his solicitor, where segregation of instructions is not possible, the Wills Exception should also extend to notes which might encroach on the instructions of the surviving spouse. To suggest otherwise would allow a surviving client to frustrate the clarification of the deceased client’s intentions even though the surviving client must have been aware of them when they met jointly with their solicitor. In my view, both clients to a joint retainer take the risk when they agree to provide joint instructions to one lawyer that their solicitor-client privilege might be lost if one of their privileges succumbs to the Wills Exception. (para. 25)

The federal government published amendments to two sets of regulations governing the role of mortgage loan insurance in Canada in the June 6, 2015 issue of the Canada Gazette. Amendments to the Insurable Housing Loan Regulations (under the National Housing Act) and the Eligible Mortgage Loan Regulations (under the Protection of Residential Mortgage or Hypothecary Insurance Act ) will come into effect January 1, 2016, affecting CMHC and private mortgage insurers respectively. For further information see the regulatory impact analysis statements (insurable housing loan and eligible mortgage loan) and the Torys LLP article New Rules on Financing of Insured Mortgages Could Have Far-Reaching Impact.

The Canadian Bankers Association has issued an updated list of bank officials to contact in the event of mortgage discharge delays.

The Property Registry issued a notice regarding document barcode labels on September 15, 2015. The notice describes a new records management process in the Winnipeg Land Titles Office, pursuant to which barcoded labels will be placed on the Registration Details Application form and on each document in the registration series, replacing the current process of handwriting a registration number on the documents. The registry also announced the appointment of Aimee Warkentin as the new Deputy District Registrar for the WLTO effective August 4, 2015.

The Manitoba Law Reform Commission released its consultation report on Improving Manitoba’s Presumption of Death Act in August. It makes twelve provisional recommendations for improving and modernizing Manitoba’s Presumption of Death Act to bring it in line with presumption of death legislation found in other Canadian jurisdictions.

LAWPRO, Ontario’s professional liability insurer, has created malpractice claims fact sheets for wills and estates and real estate lawyers. The sheets identify the main causes of claims against lawyers, offer tips for avoiding claims, and provide links to practicePRO resources. Although the stats collected are from Ontario, the risk management tips apply equally to Manitoba lawyers.

New estate rules arising from the 2014 federal budget and passed last December will come into effect January 1, 2016, affecting tax rates on spousal trusts and complicating estate planning. These articles discuss the changes in more detail: New estate rules start Jan. 1: large implications for taxes on trusts, contents of secondary wills – Blaney McMurtry If you have an alter ego trust or a spousal trust in your will, read on… - Fillmore Riley LLP The Will as a Planning Tool – this CLE BC Practice Points paper focuses on how to minimize disputes when planning wills for blended families. Condominium issues are discussed in a number of recent articles, local and otherwise. Here’s a sampling: What Is A Private Single Family Residence? – this Miller Thomson article discusses Ballingall v Carleton Condominium Corporation No. 111, 2015 ONSC 2484, a recent Ontario decision revisiting the meaning of the term “private single family residence” commonly used in condominium declarations. Making an Informed Decision - Advice to Buyers of Condominium Units and Condominium Regulation by Municipalities, Aikins Law, and Overhaul of The Condominium Act (Manitoba): What it Means to Buyers and Sellers of Used Condominium Unit, Fillmore Riley LLP - all articles consider how condominium practice has changed with the passing of Manitoba’s new Condominium Act last February. Caution: All Lien Legislation is Not the Same – this Aikins Law article examines variations in the lien legislation of Manitoba and Ontario.

The 2015 Isaac Pitblado Lectures, Blackacre to BlackBerry: Redefining Property and Ownership, will explore how changing notions of property and ownership are affecting legal practice in such diverse areas as intellectual property, digital assets, life leases, and testamentary dispositions. The lectures take place November 6-7, 2015, at the Fort Garry Hotel. Register before October 1, 2015 to take advantage of the early bird rate.

“OMG, They’re Insolvent! What Do We Do Now?” Insolvency and bankruptcy issues can cause complications in many areas of practice, including real estate. Attend this afternoon program on October 22, 2015 to learn about the latest developments in this area from our expert panel.

Infant Estates – Join presenter Anita Southall as she discusses issues arising from infant estates at this Wills and Estates section meeting on September 30, 2015. The program takes place in the Law Society classroom, from noon to 1:30 pm. A surveyor's take on more complex legal descriptions of land, and, a discussion of the rights of riparian land owners – Land surveyor Wilson Phillips will review the "ins" and "outs" of legal descriptions and touch on the rights of riparian land owners at the next Real Property section meeting on October 14, 2015, from 5:00–6:30 pm, Pitblado LLP boardroom. The Canadian Bar Association is hosting a 4-day intensive course on Will, Estate and Trust Fundamentals for Estate Practitioners on October 15-18, 2015 in Toronto. For further details see the agenda.

The Winnipeg branch of the Society of Trust and Estate Practitioners (STEP) is offering a full slate of educational sessions this year, including programs on Shareholder Agreement Planning (Oct 20), Farm Tax and Succession Planning (Nov 24), and New Philanthropy in Canada (Dec 15). To register, or for information on how to become a member of STEP, check their website.