AMENDMENTS TO BY-LAWS 18, 19 AND 25 THE OVERVIEW

AMENDMENTS TO BY-LAWS 18, 19 AND 25
THE OVERVIEW
Request to Convocation
49.
Convocation is requested to amend By-Laws 18, 19 and 25, as set out the following
motions:
THE LAW SOCIETY OF UPPER CANADA
BY-LAWS MADE UNDER
SUBSECTIONS 62 (0.1) AND (1) OF THE LAW SOCIETY ACT
MOTION TO BE MOVED AT THE MEETING OF CONVOCATION ON OCTOBER 31,
2002
MOVED BY
SECONDED BY
THAT the By-Laws made by Convocation under subsections 62 (0.1) and (1) of the Law Society
Act in force on September 19, 2002 be amended as follows:
BY-LAW 18
[RECORD KEEPING REQUIREMENTS]
1.
Subsection 1 (4) of By-Law 18 [Record Keeping Requirements] is amended by,
(a)
deleting “Land Information Services,”; and
(b)
deleting “Commercial Relations” / “de la Consommation et du Commerce”
and substituting “Business Services” / “Services aux consommateurs et aux
enterprises”.
BY-LAW 19
[HANDLING OF MONEY AND OTHER PROPERTY]
2.
Subsection 8.1 (1) of By-Law 19 [Handling of Money and Other Property] is
amended by,
(a)
deleting “Land Information Services,”; and
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(b)
deleting “Commercial Relations” / “de la Consommation et du Commerce”
and substituting “Business Services” / “Services aux consommateurs et aux
enterprises”.
THE LAW SOCIETY OF UPPER CANADA
BY-LAWS MADE UNDER
SUBSECTIONS 62 (0.1) AND (1) OF THE LAW SOCIETY ACT
MOTION TO BE MOVED AT THE MEETING OF CONVOCATION ON OCTOBER 31,
2002
MOVED BY
SECONDED BY
THAT By-Law 25 [Multi-Discipline Practices] made by Convocation on April 30, 1999 and
amended by Convocation on May 28, 1999, June 25, 1999, December 10, 1999, April 26, 2001
and May 24, 2001, be further amended as follows:
BY-LAW 25
[MULTI-DISCIPLINE PRACTICES]
1.
Section 19 of By-Law 25 [Multi-Discipline Practices] is deleted and the following
substituted:
Interpretation: “Society’s insurance plan”
19.
(1)
In this section, “Society’s insurance plan” means the Society’s
professional liability insurance plan and includes any professional liability insurance
policy which the Society may have arranged for its members.
Définition : « Régime d’assurance du Barreau »
19.
(1)
Dans cet article, « Régime d’assurance du Barreau » désigne le régime
d’assurance responsabilité professionnelle du Barreau et comprend toute politique
d’assurance responsabilité professionnelle que le Barreau peut avoir établie pour ses
membres.
Insurance requirements: members
(2)
A member who, under subsection 4 (1), has entered into a partnership with
an individual who is not a member who practises a profession, trade or occupation that
supports or supplements the practice of law shall maintain professional liability insurance
coverage for the individual,
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(a)
through the insurer of the Society’s insurance plan, in an amount
equivalent to that required of the member under the Society’s insurance
plan; and
(b)
through any insurer, in an amount equivalent to the amount of coverage
the member maintains in excess of that required of the member under the
Society’s insurance plan.
Exigences relatives à l’assurance : membres
(2)
Les membres qui, en vertu du paragraphe 4 (1), se sont associés à un
non-membre pour créer une société en nom collectif, si le non-membre exerce une
profession ou un métier qui sert les intérêts de l’exercice du droit, doivent avoir
a)
par l’entremise de l’assureur du régime d’assurance du Barreau une
couverture d’assurance responsabilité civile professionnelle pour le
non-membre équivalente à celle du membre;
b)
par l’entremise de tout autre assureur, une couverture pour le non-membre
équivalente à celle que le membre garde en surplus de ce qui est requis en
vertu du régime d’assurance du Barreau.
Summary of the Issue
50.
By-Law 18 and By-Law 19 on record keeping requirements and handling of trust money
respectively require an amendment to reflect the correct corporate name of Teranet Inc.
and to reflect the correct name of the provincial ministry connected with Teranet Inc.’s
operations.
51.
Amendments to By-Law 25 on multi-discipline practice are required to clarify that the
Lawyers Professional Indemnity Company (“LAWPRO”) is not the exclusive provider of
excess liability insurance.
52.
Copies of the current By-Laws are attached at Appendix 4.
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THE REPORT
A. NATURE OF THE AMENDMENTS
By-Laws 18 and 19
53.
The amendments to these By-Laws are required to properly reflect the corporate name of
Teranet, the corporation established by the provincial government to administer the
electronic registration of title documents, and reflect the change to the title of the relevant
government ministry connected to Teranet’s operations.
54.
The amendments will replace “Teranet Land Information Services, Inc.” with the current
title of the corporation, “Teranet Inc.” and replace “Ministry of Consumer and
Commercial Relations” with “Ministry of Consumer and Business Services”.
55.
By-Law 18 references the corporate name and the ministry in subsection 1(4)
(Interpretation) in connection with section 2 paragraph 12 and the trust records members
are required to maintain. By-Law 19 references the corporate name and the ministry in
section 8.1 in connection with the electronic withdrawal of funds required for the
registration of title documents and payment of Land Transfer Tax.
By-Law 25
56.
An amendment to section 19 of By-Law 25 is required to address an inconsistency
between what the section requires for insurance coverage for non-lawyer partners through
LAWPRO
57.
and the amount actually provided through LAWPRO.
By-Law 25 establishes the regulatory scheme for multi-discipline practices (including
partnerships).
Currently, section 19 of the By-Law addresses the lawyer’s liability
insurance obligations for non-lawyer partners in multi-discipline partnerships. Section 19
reads:
Insurance requirements: members
19.
A member who, under subsection 4 (1), has entered into a partnership with
an individual who is not a member who practises a profession, trade or occupation
that supports or supplements the practice of law shall maintain through the insurer
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of the Society’s insurance plan professional liability insurance coverage for the
individual in an amount determined by Convocation from time to time.
58.
The phrase “the insurer of the Society’s insurance plan” means LAWPRO.
59.
On May 28, 1999, Convocation determined that the amount of insurance to be carried by
non-lawyers should be that carried by lawyers in the partnership and any excess carried
by the lawyers. The issue of LAWPRO acting as the sole provider of excess insurance for
non-lawyers was subsequently addressed by Convocation, through a report of the
Professional Regulation Committee, in December 1999. Convocation at that time
determined that LAWPRO should not be the sole provider of excess insurance.
60.
The amount of insurance set by Convocation is the equivalent of the lawyer’s primary
coverage and any excess the lawyer carries. Without distinguishing between the primary
and excess coverage, section 19 effectively states that coverage in that amount is to be
maintained through
LAWPRO.
As Convocation’s decision was that
LAWPRO
is not
required to provide excess coverage (but will provide primary coverage), the section
indicates that
LAWPRO
provides coverage that in reality it does not provide (i.e. both
primary and excess coverage for the non-lawyer partner).
61.
Accordingly, an amendment is proposed that will effectively limit LAWPRO’s obligation
to providing non-lawyer partner insurance in an amount equivalent to a lawyer’s primary
coverage, by reference to coverage under “the Society’s insurance plan”.
currently in the amount of $1 million per year ($2 million in the aggregate).
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This is