Completion of transactional work and the resolution of litigation typically hinge on the word of the lawyers, via undertakings and trust conditions.
The obligation is a solemn professional promise, backed by the Code of Professional Conduct, for which the lawyer is accountable:
7.2-11 A lawyer must not give an undertaking that cannot be fulfilled and must fulfill every undertaking given and honour every trust condition once accepted.
The basics of a good system are:
- A tracking system, in which every undertaking is recorded;
- Every undertaking must be diarised in whatever time management system the lawyer/firm uses, whether giving or receiving the undertaking;
- This should be back-stopped by periodic review of outstanding obligations so nothing is missed. That might be a monthly or quarterly review to ensure every undertaking you owe or are owed is on track.
- Take appropriate and timely action to remind/resolve.
The most flummoxing challenge in Nova Scotia can be obtaining and recording mortgage releases. Here are some suggestions:
- The undertaking has a deadline,180 days, by which time the mortgage must be discharged or the lawyer is to “complete all prescribed steps…to require the Registrar to cancel the security interest.” (Regulation 8.2.7 (b) 2, nsbs.org)
- If you can’t get a response from the bank, it is a courtesy to let the other lawyer know what is happening. When they ask you, they are doing their job.
- The Mortgage Protocol is mandatory and was put in place to keep these matters moving and in your clients’ interests; everyone should use it.
- Well BEFORE, not after, a release is outstanding for 180 days, the solicitor giving the undertaking should have a system where they automatically generate the demand to the mortgage company, initiating the s.60 procedure to cancel the security.
- The solicitor receiving the undertaking might ask as the deadline approaches whether the other solicitor has yet to issue the demand.
- If solicitors invest a few minutes to automate the s.60 demand procedure, how much time of lawyers and staff could be saved chasing releases, and undertakings about releases? All files would be closed by the 6-month mark.
- If the vendor’s solicitor does not initiate the s. 60 demand within sufficient time, the purchaser’s solicitor has two choices: complain to NSBS or make a s.60 demand themself. There is no option under the mandatory protocol to wait endlessly out of politeness.
- You may, however, call the other solicitor and offer to provide precedents to get them started. Precedents are included with the Protocol. You may ask them if they mind if you initiate the demand, which might show them how easy it is, such that they will do it the next time. Alternatively, you may just issue the demand yourself without further ado.
- It is not in the public interest to have these matters linger; 180 days is the deadline by which all action must be taken to end the standoff.
You may attach this to your letters if you think it will help.
Resources
The Canadian Bar Association, “Undertakings”, (n.d.). cba.org.
Lawyers’ Insurance Association of Nova Scotia, Undertakings, (n.d.). lians.ca
Lawyers’ Insurance Association of Nova Scotia, “2007 Mortgage Payout Protocol: Resources and Practice Aids”, (October 2010). lians.ca.
Canadian Bankers’ Association “CBA Contact List for Matters Involving Mortgage Discharges”, (September 2023). Via lawsociety.bc.ca.
The above CBA link currently goes to LSBC. You may also find the same document posted on the Lawyers’ Insurance Association of Nova Scotia website here: LIANS.