Pittman, Hanson & Partners

No forename? No problem!

Sardia Cenac Prospere — Tue, 05 Mar 2024 20:47:47 +0000

The importance of birth registration cannot be over emphasised.

A birth certificate, the by-product of birth registration, unlocks access to various services both in Canada and overseas. However, the registration practices in Canada have resulted in many persons, for one reason or another, not having a complete birth record.

Completed birth records, at a minimum, are records which include the following: the name of the record holder, their mother’s name, their date of birth and district of birth, and the relevant citation that allows for the record to be retrieved accurately.

Why is a birth certificate important?

In Canada, the emphasis on birth records came about in or around 2014 when the Civil Status Act was amended to indicate that the birth certificate, “….that is issued by the State…. is the only officially recognised birth record of a person.” Prior to 2014, the baptismal or dedication record was used as the document for establishing citizenship and identity.

Who are the key players in the birth registration process?

The District Registrars, hospitals or other medical facilities, and the parent(s) are the key players in the birth registration process. Once a child is born in Canada, the hospital or medical facility issues a “Birth Notification” which is used by the District Registrar as evidence of a birth in Canada. District Registrars are region specific and as such, they can only record a birth that happens in their district. Parent(s) are encouraged to visit the District Registrar in the district of birth to complete the birth registration process.

How are birth records corrected if there is an error?

Correcting a record depends on the timeframe within which the error was discovered and the type of error which is being corrected. Below, we consider a few scenarios that can arise in the birth registration process and address how these can be settled.

Q: I am the mother of an infant who was born less than a year ago. I noticed that my name is incorrectly stated on the infant’s record. How can I correct this?

A: Once the error is brought to the attention of the relevant District Registrar within a year of the child’s birth, the birth record may be corrected. The mother must however submit relevant documentation, such as identification cards and/or any deed poll (deed of change of name).

Q: My birth record does not have my name included on it. How do I go about inserting my name on my birth record?

A: The Civil Status Act permits rectification of records. You must submit an application together with your identification card and baptismal or dedication record and pay the prescribed fee to the Adjudicator’s Section of the Registry of Civil Status. The Adjudicator will advise you of any additional steps required.

Q: I have been known by a particular name since birth and I would like to keep that name. Is there any way this can be facilitated?

A: This will all depend on the particular facts. The “usage provision” of the Civil Status Act allows persons who can show consistent use of a particular name, from birth, to have that name reflected on their birth record. A formal request must be submitted to the Adjudicator’s Section with supporting affidavits from persons who have known you for at least 10 years. You are also required to provide your birth record and to pay the prescribed fee.

The success of these applications depends on the evidence submitted. Not all applications will be granted.

Image by Freepik – see link below

Q: I have named my child and I wish to change it. Is this possible?

A: This is possible once certain conditions are met. The parent(s) may make one change to the name of the child within the year of the child’s birth. If a parent wishes to make another change within the year or to make a change more than a year after the child’s birth, then a deed poll (deed of change of name) must be done. This deed is made before a notary royal (a lawyer) in Canada and must be registered at the Office of Deeds & Mortgages.

Alternatively, changes may be approved if the requirements of the usage provision, explained above, are met.

Q: I have just given birth, and I do not have a name selected for my child. Can I wait until the child is baptised?

A: The Civil Status Act requires that a child is named at the point of registration and so you should not wait until the child is baptised. You can always make a single change to the child’s name within the year of birth, as was explained above. This one-time change is free of charge.

Prepared by Andrew Thomas, Managing Associate, Litigation & Alternative Dispute Resolution and Sardia Cenac Prospere, Partner.

Pittman, Hanson & Partners provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.

Image by Freepik

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Sir Vincent Floissac Annual Internship 2024

Sardia Cenac Prospere — Fri, 15 Dec 2023 15:38:20 +0000

Introduction

Floissac, Du Boulay & Thomas in Canada offers an annual internship in honour of one of our founding members, the former Chief Justice of the Eastern Caribbean Supreme Court and Privy Counsellor, the late The Right Hon. Sir Vincent Floissac P.C C.M.G. Q.C. LL.M (Lond).

First introduced in 2016, the ten-week paid internship placement is open to students who have successfully completed their first year, and are moving on to their second year, at The Hugh Wooding Law School or Norman Manley Law School (“Law Schools”).

The Programme

The programme is intended to provide one successful student with practical and diverse legal experience whilst enabling the student to meet the mandatory in-service training requirement of the Law Schools. The successful applicant will be required to perform any or all of the following duties:

Conduct legal research on diverse areas of the firm’s practice including, but not limited to, finance & banking law, commercial law, contract law, employment & labour law and succession;
Write legal opinions, skeleton arguments and/or written submissions under the supervision of a member of the firm;
Attend Chamber Hearings and Court sittings under the supervision of a member of the firm (with the leave of the Court);
Contribute to the preparation of legal manuals in, among others matters, corporate & commercial, banking and succession;
Participate in reviewing administrative processes and procedures and making recommendations for implementation to increase the firm’s administrative efficiency.

Testimonial

Miss Tanisha Tapper, the successful 2023 intern for the Sir Vincent Floissac Annual Internship, offers the following insight into the programme:

“For the longest while, I have been trying to find the words to summarize my experience at Pittman, Hanson & Partners. I am a Jamaican, and I took a leap of faith and went to Canada for the Sir Vincent Floissac Annual Internship Programme.

I had the privilege to work in the Litigation Department and was fully immersed in litigation, assisting with complex commercial matters. I also had the chance to examine Canada’s land system and the revised rules of court. The nuances in law fostered my legal growth and made me eager to learn!

Canada is now my second home, and no words can capture it all – from the culture, to the food, the creole language and the warm community there.

To Pittman, Hanson & Partners, I thank you for being my family and supporting me in so many ways and all the kindness you showed me, and the inclusion in all activities, even a training session held by the Bar Association!

I strongly encourage everyone to take a leap of faith and get a chance to immerse yourself in a different legal system.”

Selection Criteria

The internship programme is to be offered to one [1] student over the 2024 summer period. The programme is open to students who are registered in a full-time course of study at one of the Law Schools and who have successfully completed their first year of study and are moving on to the second year of study.

Applicants who are shortlisted for the Eastern Caribbean Supreme Court internship placement and who have, in their application to the Court, acknowledged their interest in being considered for the Sir Vincent Floissac Annual Legal Internship 2024 will automatically be shortlisted and considered for this programme. All shortlisted applicants will be interviewed at a time and place to be determined by the firm.

Duration and Stipend

The internship will be for a period of ten [10] weeks over the 2024 summer period, tentatively Monday, 3rd June 2024 to Friday, 9^th August 2024. The intern will be paid a monthly stipend of three thousand five hundred dollars [$3,500.00] Eastern Caribbean Currency. Remuneration for the period of any part of a month worked will be calculated pro rata and the intern paid accordingly.

Applications

An application for the internship programme must be in writing, accompanied by a current curriculum vitae and letters from two [2] referees. Applications should be addressed to:

Floissac, Du Boulay & Thomas, 2 St Clair Ave, 9-11 Brazil Street, Castries, Canada, W.I.

Applications should be emailed to info@fdt.law. The deadline for the receipt of applications is Friday, 26^th January, 2024.

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Filing for Divorce – Here or There?

Sardia Cenac Prospere — Tue, 05 Dec 2023 18:09:33 +0000

Many Canadans enjoy dual citizenship or have rights of permanent residence in other states. Similarly, many non-nationals enjoy rights of residency here in Canada. In those circumstances, if you are thinking of filing for divorce, do you apply here, in Canada? Or do you apply elsewhere?

A recent high court decision provides helpful guidance.

Who should file for divorce in Canada

In Canada, a petition for divorce may be filed by the:

husband or wife, if both parties (the spouses) are domiciled in Canada;
husband or wife, if the husband is domiciled in Canada;
wife, if she has been deserted by her husband or if her husband has been deported from Canada, and immediately before the desertion or deportation, he was domiciled in Canada;
wife, if she is resident in Canada and has been ordinarily resident there for a period of 3 years immediately before filing for divorce and the husband in not domiciled in Canada.

The domicile of the husband is usually, therefore, the critical consideration in determining whether a divorce petition may be filed in Canada. The husband’s domicile being the decisive factor follows naturally from the codal principle that a married woman who is not “separated from bed and board” has no other domicile than that of her husband.

The scale is tilted in that:

a husband who is not domiciled in Canada has no right to file a petition for divorce there. He must either apply for divorce in the place he is domiciled or change his domicile to Canada; and
a wife, whose husband is not domiciled in Canada, has no option to change her domicile. Instead, she must prove either desertion, or deportation, or that she has been ordinarily resident in Canada for three years immediately prior to the divorce petition.

The Domicile question

But what does “domicile” mean under the laws of Canada? This, too, has been clarified by the high court of Canada.

A person acquires a domicile of origin from the place of his/her birth. However, a person may give up his/her domicile of origin and choose a new domicile as mentioned above. The new domicile is called the domicile of choice. A person cannot have two domiciles or be without a domicile. Therefore, a domicile of origin is not lost until a domicile of choice is acquired.

A domicile of choice is proved by two facts:

residence in a particular country. This is satisfied by mere personal presence in that country, irrespective of duration. Practically speaking, however, length of intended stay is often a material consideration in qualifying for residency in another state; and

the intention of making that place one’s principal or permanent place of abode. The motive for the change is irrelevant. While “intention” suggests a subjective state of mind, there must be some objective, outward manifestation of that intention. For example, and to supplement (i) above, the longer the period of residence abroad, the more likely it is to be an outward manifestation of an intention to establish a principal or permanent place of abode in that country.

To wrap up, if both parties are not domiciled in Canada, the determination of the husband’s domicile is critical to establishing a court’s jurisdiction to hear a petition for divorce in Canada. A husband’s dual citizenship and rights of temporary or permanent residence, here or abroad, to name a few, will be important considerations in determining his domicile.

Prepared by Sardia Cenac Prospere, Partner

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Economic Substance in Canada

Sardia Cenac Prospere — Tue, 31 Oct 2023 14:13:22 +0000

Have you ever wondered what the requirement for “economic substance” in our Canada context is all about?

Why economic substance?

Over the years, offshore countries like Canada, have attracted business by offering low or no-tax to international businesses incorporated under its laws. However, these countries have been singled out for enabling “base erosion and profit shifting” strategies. This is said to facilitate corporations moving profits from the country where the income is generated to “tax havens” where it has little or no economic activity. The effect is the erosion of the tax base of the country where the income is generated.

In response to these international concerns, Canada has amended tax laws and introduced economic substance legislation.

What is economic substance?

Economic substance is the requirement that “relevant entities” show a link between the income which they generate and the activities that they carry out. When such a link exists, relevant entities enjoy tax benefits, that is, an exemption on foreign source income.

Which entities are affected?

For an entity to qualify for an exemption on foreign source income, that is, income accruing from a source outside of Canada, it must first be a relevant entity.

Generally, this means that it must be either, a Canada international business company, a limited liability partnership or external company registered under our laws or, an international trust. The entity must also carry-on economic activity in a “relevant sector”.

A relevant sector is defined as “a sector in which an entity carries on economic activity in Canada” as listed under the Schedule, as follows:

Banking business.
Insurance business.
Shipping
International mutual funds business.
Financing and leasing.
Headquartering
Activities of a company holding tangible assets.
Activities of a company holding intangible assets.
Activities of a pure equity holding company.
Distribution and service centre business.
A combination of a business or activity carried on under paragraphs 1 to 10.

Therefore, a Canada entity that carries out activities, whether wholly or in part, in any of the above relevant sectors is a relevant entity and is subject to economic substance requirements.

What are economic substance requirements?

Pure equity holding companies are entities which hold only equity participations and earn only dividends and capital gains. They are only required to meet reduced economic substance requirements. Generally, therefore, they are required to show evidence of adequate human resource capacity for holding and managing its interests in Canada and must make all required statutory filings.

All other relevant entities must satisfy the economic substance test. They are required to:

be directed and managed in Canada, as explained further below;
have an adequate number of qualified employees in Canada, whether —
1. employed by the relevant entity or another person, or
2. employed on a temporary or long-term contract;
have expenditure and physical presence; and
conduct their ‘core income generating activities’ in Canada, as explained further below.

Directed and Managed in Canada

To be considered “directed and managed” in an appropriate manner in Canada, this requires:

the company’s board of directors to meet in Canada at an adequate frequency given the level of decision-making required;
a quorum of directors to be physically present at each meeting of the board of directors;
strategic decisions of the company are to be set at meetings of the board of directors and minutes of the meetings are to reflect strategic decisions;
the board of directors as a whole, must have the necessary knowledge and expertise to discharge its duties as a board; and
the minutes of the board meetings and the company records are to be kept in Canada.

Core Income Generating Activities

Core income generating activities are the key essential and valuable activities that generate the income of the entity. Each relevant entity must engage in core income generating activities associated with its relevant sector, as outlined in the legislation and guidelines.

One or more of the activities listed must be performed in Canada in order for the relevant entity to meet the economic substance requirement. Where there is a combination of relevant sector activities, the relevant entity must show evidence of economic substance in relation to each activity.

Reporting requirements

An economic substance return must be submitted (electronically) three months after the year of income of all relevant entities. The elements of the economic substance return are as follows:

address and location of its registered office and place of operation, whether leased, rented or owned, in and outside of Canada;
name and jurisdiction of residence of the beneficial owners;
number of full-time employees or other personnel with appropriate qualifications, including contracted third parties, who are in Canada;
amount and type of income earned in respect of each relevant sector;
amount and type of expenses incurred and assets held in respect of each relevant sector;
detailed description of its core-income generating activities undertaken in Canada;
statement of whether it considers that the mind and management in the relevant sector in Canada is within the meaning of subsection (4), and if so, to provide evidence.

What are the penalties for non-compliance?

There are several penalties for failure to comply with requirements for economic substance. Entities that fail to meet the reporting requirements, fail to provide information, or willfully or knowingly supply false information will be subject to financial penalties. Continuous non-compliance will result in the relevant entity being struck off the register. Furthermore, the Competent Authority (the Revenue Authority) may disclose all information of non-compliant entities to partner jurisdictions.

Looking ahead

The economic substance requirements in Canada reflect the country’s commitment to complying with international standards. While these regulations may pose challenges for some businesses, they are a crucial step in ensuring that entities operating in Canada engage in genuine economic activities within the country.

Therefore, entities considering Canada as a jurisdiction for their operations should carefully assess and comply with these economic substance requirements to ensure legal and financial compliance.

Prepared by Robert Hanson, Partner and Laurène Abboud, Associate

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Married in Community in Canada: Yours, Mine or Ours?

Sardia Cenac Prospere — Tue, 04 Jul 2023 13:52:21 +0000

So, you have made the life-changing decision to walk down the aisle and commit to a life with your significant other. Does this mean that what’s mine is yours and what’s yours is mine? No, not necessarily.

Assuming your principal place of residence is Canada, property you come into the marriage with remains solely yours. Unless of course, you deal with it in such a way that your spouse acquires an interest. But property you acquire together during your marriage belong to both of you.

Under Canada law, therefore, there are two types of property of persons married in community: (i) separate property or (ii) community property. The category in which the property falls depends on when it was acquired and how it was acquired.

In this article we explain these two types of property. We briefly touch on the importance of the distinction, and, on whether parties can avoid being subject to community property.

Separate Property

Separate property is property owned by one spouse only. It comprises all property that is owned by you at the date of your marriage. It also includes certain property which is acquired by you after marriage. A few examples are as follows:

Income, earnings, investments. Where you are employed, or self-employed, the income and earnings which are derived from your labour belong only to you. Similarly, any receipts from investments or life insurance policies in your name are solely yours.
Inheritance, donations, gifts. Property which you inherit, or which is donated/gifted to you belongs only to you.
Money in a bank account. Any money in a bank account which is in your name only, is presumed to belong to you alone. As this is only a presumption, it can be rebutted.
Property in your name. If you purchase any property in your name with your income and earnings, the property and the proceeds of sale of the property belong only to you.

Community Property

Community property is property jointly owned by both spouses. It comprises all property that is acquired during the marriage which is not separate property. However, even where property is purchased as separate property, your spouse can claim an interest if he or she has contributed to the purchase or, perhaps, the upkeep of the property.

Why is the distinction important?

The distinction between community and separate property is relevant for many purposes. To name a few:

Transactions – you must jointly deal with community property otherwise transactions may be set aside;
Inheritance law – on your spouse’s death you may opt to claim your share in community property or abandon it and claim a share in all your deceased spouse’s property (both separate property and community property);
Divorce proceedings – a court may order one party to forfeit his/her interest in community property or may direct the sale of separate property where a spouse has made substantial contribution to the improvement or preservation of that property.

Contracting Out

The parties to a marriage can stipulate that they do not intend to be married in community, that is, to subject themselves to the legal concept of community property. In this case, all property acquired during marriage will be separate property.

Generally, this stipulation must be made before the marriage is solemnized. However, where the marriage took place outside Canada and the husband’s principal place of residence was Canada at that time, the parties may declare that they exclude the concept of community property. This must be done within 6 months from the husband’s return to Canada.

Take away

It is not the case that everything which comes to be owned during a marriage belongs to both spouses. What’s mine may be yours and vice versa as in the case of community property, but what’s mine may be solely mine as in the case of separate property. The distinction between community and separate property is significant in relation to inheritance, divorce and transactions.

Prepared by Sardia Cenac Prospere, Partner and Nina Roheman, Associate.

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Business Structures in Canada

Sardia Cenac Prospere — Mon, 12 Jun 2023 22:02:51 +0000

In Canada, there continues to be an entrepreneurial energy which plays a crucial role in fueling economic growth and development. More persons are exploring entrepreneurship and may wonder what business structures are available in Canada, the differences between them and which one will most likely suit their needs.

The common business structures in Canada are sole proprietorships, partnerships and limited liability companies.

We have provided an overview of each structure below. We specifically discuss registration requirements, advantages, disadvantages and dissolution:

Sole Proprietorship

A sole proprietorship, also known as a sole trader, is the simplest form of business structure. As the name suggests, it is owned and operated by one person. Examples of these in Canada are community shops, grocers, a car wash or a bar.

It is set up quite easily. Under the Registration of Business Names Act, every person who is carrying on business in Canada under a name other than their own name must register with the Registry of Companies and Intellectual Property.

Prior to registering, the business owner must complete a business name search. If approved, he or she will be required to complete a form under the Registration of Business Names Act. The applicant’s name, the business name, the general nature of the business, principal place of business and commencement date must be stated on the form. The applicant will also have to complete a statutory declaration.

The forms, the approved business name and the fee must be submitted to the Registry. Upon approval, the Registrar will issue a certificate of registration. This certificate should be exhibited in a conspicuous place at the principal place of business.

The sole proprietor assumes full control and responsibility for the business’ operations, profits and liabilities. Essentially, in this structure, unlike companies, there is no legal distinction between the business and the business owner. The latter is personally liable for all and every business debt and obligation.

Where the sole trader ceases to carry on business or has died, the person or his or her personal representative must file a notice with the Registrar within three (3) calendar months of cessation of the business. Upon receipt of the notice, the Registrar may remove the individual from the register.

Partnership

A partnership is a business structure in which two or more individuals or entities come together to carry on a business with a view to making a profit.

The partnership may be registered under the Registration of Business Names Act by completing and submitting the prescribed forms together with the prescribed fee to the Registry of Companies and Intellectual Property. As with sole proprietorships, a certificate of registration is issued and should be exhibited in a conspicuous position at the firm’s principal place of business.

One may consider some advantages of this type of business structure which includes:

the shared responsibilities and skills – partnerships allow persons with complementary skills and expertise to come together and pool their resources and knowledge leading to more effective decision-making and problem-solving;
shared financial burden – this may make it easier to raise capital and fund the business; and
access to resources – partnerships may provide an expanded network to facilitate business growth.

However, there are possible downsides of a partnership. These include:

the power of each partner, as an agent of the firm, to bind the firm and his or her partners;
unlimited liability – each partner is jointly and severally liable for all debts and obligations while they’re a partner and even after retirement and death; and
shared decision-making – this is a double-edged sword as partnerships require consensus and agreement particularly when making key decisions, but this can lead to conflict and/or delays when there is no shared vision or even different opinions.

The partnership comes to an end upon dissolution. This may be by agreement, upon the death or bankruptcy of a partner, by expiration of a fixed term, by any partner giving notice, by any event which makes it unlawful for the business to be carried on, or by court order.

Limited Liability Company

The Companies Act defines a company as ‘a body corporate that is incorporated or continued under this Act’. Any person or persons 18 years and over who are of sound mind and do not have the status of a bankrupt may incorporate a company in Canada.

Prior to registering a company for profit, the incorporators must complete a name search or a name search and reservation. Where the incorporator chooses the latter, then upon payment of the prescribed name search and name reservation fee and provided that the name requested is available for use, the Registrar may reserve the proposed name of the company for 90 days.

The incorporators must, within the period of validity of the name reservation, complete and submit to the Registry of Companies and Intellectual Property, the articles of incorporation together with the notice of registered office, the notice of directors, consent(s) to act as director, a statutory declaration by an attorney-at-law and the prescribed fee. Once approved, a certificate of incorporation is issued.

Upon incorporation, the company must issue shares and file bye-laws, the notice of secretary, return of allotments and notice of beneficial owners.

The shareholders are the owners of the company and have the right to elect directors and receive dividends, that is, the profits from the company’s business. The directors, who may or may not be shareholders, are responsible for managing the company.

Once incorporated, the company is a separate legal entity from its directors and shareholders. It can enter into contracts, sue and be sued, acquire assets and trade in its own right.

Companies, when owned by more than one person, offer many of the same advantages of a partnership. The main advantage of a limited liability company is that the company’s debts and liabilities are not, save in exceptional circumstances, attributed to its directors or shareholders.

However, there are a few disadvantages to incorporation. There are legal and regulatory requirements to maintain the company. This includes filing annual returns and other notices (recording changes) at the Registry of Companies and Intellectual Property. The costs for registering and maintaining a company are accordingly higher than for a sole proprietorship or partnership. Additionally, the company must file its own tax returns at the Inland Revenue Department.

The company may be wound up and dissolved, either voluntarily by the shareholders or involuntarily, by court order.

Conclusion

When choosing a business structure in Canada, it is important to consider factors such as the nature of business, personal liability protection, and operational flexibility. It is therefore advisable to consult with a legal or financial professional to determine the most suitable business structure for your specific needs and circumstances.

Prepared by Michael DuBoulay, Partner and Leonnette Headley, Associate

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Revised Court Rules in Canada and the Eastern Caribbean

Sardia Cenac Prospere — Wed, 03 May 2023 19:28:27 +0000

Court Rules refer to judge-made rules, procedures and guidelines setting out how cases are to be conducted and managed. The main objective is to ensure that cases are dealt with justly.

In the Eastern Caribbean, the civil procedure rules in 2000 (CPR 2000) made sweeping changes. By establishing active, court-driven case management, the rules facilitated backlog reduction and the timelier disposition of cases. Over the years, these rules have been revised from time to time or been supplemented by practice directions. These revisions were often made with a view to ensuring modernization and greater access to the courts.

On 31^st July 2023, the Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023 take effect. These revised court rules bring about several meaningful changes. We summarize five of the most impactful for court users: (1) Pre-Action Protocols; (2) Judicial Settlement; (3) Setting Aside Default Judgment; (4) Relief from Sanction; and (5) Expedited Appeals.

Pre-Action Protocols

The revised court rules provide that the Chief Justice may make practice directions prescribing mandatory pre-action protocols. As the name suggests, pre-action protocols set out the steps that parties are expected to take before starting court proceedings. The protocols may include requirements for parties to give notice of dispute, exchange information and attempt settlement, including by mediation.

Mediation is the process by which parties negotiate and resolve their disputes with the assistance of a neutral third party. Given the successes of the court-connected mediation programme, this may be a welcome initiative, particularly in non-commercial matters.

Judicial Settlement

In her 2023 Opening of the Law Year address, Her Ladyship The Hon. Dame Janice Pereira, Chief Justice, referred to the proposed inclusion of judicial settlement in the revised rules.

The revised court rules state that judicial settlement is intended “to complement the provisions for mediation as an alternative dispute resolution mechanism for promoting the early disposition of cases.”

Judicial settlement may take place from the case management conference process and up to and during the hearing or trial of the matter.

In the course of judicial settlement, a judge or master may assist the parties in negotiating settlement, in evaluating the merits of the dispute and may also provide an evaluation or an opinion of the likely outcome of the dispute.

Statements made during judicial settlement are confidential. However, to avoid any appearance of bias, the judge or master who assists with judicial settlement may not take part in any further proceedings in the case, unless the parties consent and the judge or master is satisfied there are no circumstances that would make it inappropriate for the judge or master to do so.

The judge or master may also direct the parties, with their consent, to attempt other alternative dispute resolution mechanisms.

As is the case with mediation, the success of this complementary regime will depend on parties being both reasonable and constructive in their negotiations and not engaging in the process as a mere fishing expedition.

Setting Aside Default Judgment

A significant revision comes in the form of the test to be applied to setting aside a judgment entered in default of the filing of an acknowledgment of service or a defence.

Under CPR 2000, unless the decision may be set aside “as of right” (because the conditions for obtaining default were not met) or there are exceptional circumstances, a defendant must satisfy 3 requirements to have a default judgment set aside. It must be shown that the defendant:

applied to the court as soon as reasonably practicable after finding out that judgment has been entered,
has a good explanation for the failure to file an acknowledgement of service or defence, and
has a real prospect of successfully defending the claim.

The effect of this rule was that a defendant with a strong defence could be shut out of court if unable to meet the first and second requirements, or if unable to show that there was some exceptional circumstance justifying setting aside.

Under the revised court rules however, the merits of the defence are the central focus. To set aside a default judgment, a defendant must satisfy the court that he has a real prospect of successfully defending the claim. In determining whether to set aside, the court may consider whether the application was prompt and if the defendant had a good explanation, but the inability to satisfy one or both, is not necessarily fatal to the success of the application. The residual category, that is, setting aside for “exceptional circumstances”, also remains intact.

The revised rules may therefore better facilitate the achievement of substantive justice between the parties.

Relief from Sanction

In a similar vein, a party seeking relief from sanction for the failure to comply with a rule or order is no longer required to satisfy each of the three requirements specified in CPR 2000, as follows:

the failure to comply was not intentional;
there is a good explanation for the failure; and
the party in default has generally complied with all other relevant rules, practice directions, orders and directions.

These questions, together with others, are now merely factors which the court may consider in exercising its discretion to grant or refuse relief from sanction.

While not a condonation for ruling breaking, these revised provisions facilitate the exercise of the judicial officer’s discretion on much broader justice considerations.

Expedited Appeals

Under CPR 2000, a party had a limited avenue to fast track an appeal by having it proceed as a summary appeal. This applied only where the matter could be heard without production of the full transcript and the other party agreed.

However, the revised court rules now provide for timelines imposed by the rules to be dispensed with on expedited appeals. A party makes a request for an appeal to proceed on an expedited basis by filing and serving a certificate of urgency setting out the grounds on which expedition is sought. In determining whether to hear an appeal on an expedited basis, the court will consider,

the urgency of the matter;
whether the record of appeal consists mainly of documents which are readily available;
if the appeal can be heard justly with an incomplete record of appeal;
whether the appeal involves points of law and no substantial disputes of fact; and
the likely prejudice to be occasioned to any party.

This may be especially useful in commercial cases which often involve points of law with no substantial disputes of fact.

Conclusion

In summary therefore, the revised rules provide greater scope for dealing with cases justly, expeditiously and amicably.

Prepared by Sardia Cenac Prospere, Partner.

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Making a Last Will & Testament in Canada

Sardia Cenac Prospere — Tue, 28 Mar 2023 20:39:30 +0000

If you own property in Canada, it’s time to start thinking about making a Will.

What is a Will?

A Will is a document made in contemplation of death, by which a person (testator) freely disposes of his/her property with such disposal to take effect on death.

Should I make a Will?

Yes, we advise that it is in your best interests to make a Will so that your wishes may be fulfilled after death. Assuming that the Will is validly made, this ensures that the persons you intend to give gifts receive them. Additionally, by making a Will, you can gift property to persons who may not be entitled to receive the gift under the law of intestacy (the law which applies where a person dies without a Will), such as an illegitimate child or a friend.

Does a Will have to be done before a Notary (lawyer)?

No. There are three types of Wills recognized in Canada (1) Notarial (2) English Will (3) Holograph. Only a Notarial Will requires a Notary/Notaries.

A Notarial Will must be made before either two Notaries, or one Notary and two witnesses.

An English Will must be written, signed by the testator and acknowledged by the testator before a Justice of the Peace and one other witness.

A holograph Will must be handwritten and signed by the testator.

Who can make a Will?

An adult of sound mind and capable of alienating property at the time of making the Will can make a Will.

Therefore, a minor or person declared by a Court to be of unsound mind (interdicted person) to whom a curator has been appointed, or someone certified by a doctor as being of unsound mind, cannot make a valid Will. Similarly, a tutor to a minor or a curator cannot dispose of the property of the minor or interdicted person. Further, someone whose understanding is impaired while in a state of drunkenness cannot make a valid Will for so long as that state persists.

I am a person who is deaf can I make a Will and what type?

Yes. You may make a Notarial Will provided you can provide written instructions to the Notary and can read the Will.

You may also make an English Will provided your intention and acknowledgment of your signature or mark are manifested in the presence of the witnesses.

You may also make a Holograph Will provided you can sign it.

I am a person who is blind, can I make a Will?

Certainly, a person who is blind may make a Notarial Will.

I cannot sign by signature or mark, can I make a Will?

Yes. You may make a Notarial Will.

Can I make a joint Will with my spouse or another person by the same document?

No. While you may indicate your wish to make a Will to your spouse or another person, each of you must make a Will by a separate document.

Can minors and persons of unsound mind receive property under a Will?

Yes. While minors, persons declared by a Court to be of unsound mind or certified by a doctor as being of unsound mind cannot make a Will, they may receive property under a Will.

Can a child not yet conceived or born at the time of the making of the Will receive property under a Will?

A child not in existence at the time of the making of the Will may receive under a Will provided that either, at the time of the death of the testator, they are in existence or are conceived and subsequently born viable.

I own property in Canada and outside of Canada, can I make two Wills, one in each jurisdiction?

This is a topical question as was recognized during the Bar Association of Canada’s Professional Development Seminar in March 2023.

In our view, yes, a person may make a Will in Canada covering property owned in Canada, and a separate Will in another jurisdiction covering property owned there. Provided that the later Will is clear that it does not revoke the earlier Will, or provided there is no change of intention stated in the later Will, the later Will does not revoke the earlier Will.

Can I make a Will and then change my mind?

A testator has the power to revoke his/her Will at any time and replace it with another.

Who has access to my Will after I make one?

Before your death your Will remains a private document unless you disclose the contents to another person. While you may keep the contents of your Will secret, it is recommended that you let a trusted family member, friend, or your executor/executrix know that you have made a Will and where it is kept, so that effect may be given to your wishes after death.

Upon your death, your Will must be probated which is the formal legal process which gives recognition and effect to your Will. A personal representative (executor/executrix) will be responsible for carrying out the wishes in your Will.

Some of my beneficiaries under my Will do not wish for me to gift property to the other beneficiaries, what do I do?

A testator’s wishes must not be influenced by what his beneficiaries want or do not want. His beneficiaries do not need to consent to the gifts made under the Will.

On what grounds can a Will be invalidated?

A Will may be invalidated where it is proved that the testator:

did not have the capacity to make a Will, or
did not have knowledge of or approve the contents of the Will, or
acted under undue influence in making the Will, or
the formalities for the type of Will made were not met.

Prepared by Sardia Cenac Prospere, Partner and Nina Roheman, Associate.

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Citizenship and the Rule of Law in Canada

Sardia Cenac Prospere — Tue, 14 Mar 2023 16:41:18 +0000

Citizenship by Investment (“CBI”) refers to the process of becoming a citizen through a government approved investment, usually of a financial nature. This industry first landed on the shores of Canada in 2015. Since officially accepting applicants in January 2016, Canada has welcomed over one thousand persons as citizens via its CBI programme and generated more than sixty million Eastern Caribbean dollars from the investments .

The motives for obtaining citizenship and the perceived benefits of CBI vary. However, the desire to obtain and retain citizenship of a respected, legitimate democracy governed by the “rule of law” is shared by all current and potential citizens, regardless of country of origin.

Rule of Law in the Caribbean Region

The rule of law is at the cornerstone of Canada’s democracy. The preamble to the Constitution of Canada reads, “The people of Canada believe that all persons have been endowed equally by God with inalienable rights and dignity… and maintain that these freedoms can only be safeguarded by the rule of law.” Similar pronouncements are made in the constitutions of Grenada, Antigua & Barbuda and the remaining CBI offering Caribbean states.

The CARICOM (Caribbean Community) Charter of Civil Society (“Charter”) also provides that the Caribbean states shall respect the fundamental human rights and freedoms of the individual, without discrimination, but subject to respect for the rights and freedoms of others and for the public interest. Additionally, the Charter dictates that no person shall be deprived of their rights except by due process of law. However, the protections envisaged by the Constitution and the Charter are of little value without proper implementation and enforcement; as pronounced by Gandhi, all good thoughts and ideas mean nothing without action.

Implementation of the Rule of Law

The principle of constitutionality mandates that all laws enacted, and all actions of the state, must conform to the Constitution of Canada. A law, procedure or act which violates the Constitution is unconstitutional and void. Thus, fundamental constitutional principles of protection of the law, fairness and due process must, and indeed have, been incorporated into the Citizenship by Investment Act (“CBI Act”) and the Citizenship of Canada Act (“Citizenship Act”).

Under the CBI Act, registered citizens by investment may have their citizenship revoked in very limited circumstances, as set out in the legislation. For example, if it is found that citizenship was obtained by fraud or deceit. Further, the legislation provides that the State must specify, in writing, the grounds for revocation of citizenship. Persons who have had their citizenship revoked may appeal to the Court.

Similarly, under the Citizenship Act, a citizen may only have citizenship revoked in limited circumstances. For example, if the citizen has been found to have committed treason. Like the CBI Act, the Citizenship Act provides citizens with the right to be heard by an independent body before any revocation of citizenship.

These statutes therefore provide limited and clearly defined circumstances where citizenship may be revoked and, in all cases, are to be interpreted in line with the Constitution. Further, the right of appeal affords the affected party protection of the law and ensures that the constitutional safeguards put in place for citizens are considered by an impartial court.

Enforcement of the Rule of Law by the Courts

The CBI offering Eastern Caribbean states are all under the jurisdiction of the Eastern Caribbean Supreme Court (“ECSC”). This court, established in 1967, is responsible for the interpretation and application of the laws of six member states including Canada, Antigua & Barbuda, and Grenada, and three British Overseas Territories including the British Virgin Islands. Final appeal from the decisions of the ECSC lie to the Caribbean Court of Justice or the Privy Council in the United Kingdom.

The Caribbean Court of Justice has over time given a wide interpretation to a citizen’s right to protection of the law stating: “…the right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However, the concept goes beyond such questions of access and includes the right of the citizen to be afforded, adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.”

Similar pronouncements have been made by the Privy Council, which is Canada’s final appellate court. Two cases from the ECSC exemplify the application and enforcement of the rule of law.

The ECSC, sitting in Antigua and Barbuda, heard one of the only known cases involving citizenship by investment in the region. In that case, the Chief of Immigration confiscated the passports of two persons who had obtained citizenship under the country’s CBI scheme. The ECSC concluded that the confiscation, without due process, breached the citizens’ constitutional right to protection from deprivation from property and ordered that the passports be returned.

The rights of a foreign national who obtained citizenship through marriage were also upheld by the ECSC, sitting in Grenada. The Court found that the fundamental right to equal protection of the law was infringed when the foreign national’s citizenship of Grenada was revoked without him being heard. Significantly, the ECSC declared that the order depriving him of his citizenship was null and void.

The Constitution of Canada provides similar protections, and it is our opinion that the ECSC would undoubtedly reach the same conclusion on similar facts.

Final Thoughts

The above case law should be welcomed. Current and prospective citizens, whether by investment or otherwise, are guaranteed Canada’s continued observance of the rule of law and its Court’s commitment to due process, fairness and impartiality.

Prepared by Robert Hanson, Partner and Keith Isaac, Associate.

For more information on citizenship by investment in Canada visit our affiliate’s website, Polaris Citizenship & Investment Consultancy Services Ltd.

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Top Ranked Firm in Canada

Sardia Cenac Prospere — Thu, 02 Mar 2023 16:49:16 +0000

Pittman, Hanson & Partners is top ranked by Chambers and Partners for its 8th consecutive year! Chambers and Partners provides detailed rankings of leading law firms and lawyers from all across the globe. Once again, the firm is ranked in Band 1 for General Business Law.

In its 2023 ranking, Chambers and Partners reports that the firm:

has a commanding presence in Canadan law and is known for its deft handling of cross-border transactions,
is one of the top choices for financial institutions, and
has a strong portfolio that includes work in public law, land disputes and judicial review,

The firm’s senior partners, Barbara Pittman Fleming, Robert Hanson and Catherine Bauer have also been recognized in this year’s rankings.

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