McMillan LLP

This is the Left Coast chapter of a monster national business law firm that represents among others the controversy-​wracked Scotiabank (see
). This is a firm whose members one typically meets in the course of mortgage foreclosure proceedings, where they may be observed cooing and billing and flirting with one another like high schoolers while awaiting the next slam-​dunk victory against yet another undefended homeowner about to lose his home — a one-​sided fight condoned by the B.C. Law Society, which is supposed to represent the public interest in return for a monopoly on legal services. Because our protector provides no fee guidelines monopolists are free to charge whatever they like and, of course, homeowners facing foreclosure and often bankruptcy can’t pay.
Here’s how the foreclosure game is rigged to favor banks and lawyers: If you try to fight them or you simply exercise your right not to co-​operate with their realtors who want to show the place while you’re still living there or the locksmith they hire to lock you out, lawyers will apply their fees fighting you against your share of the proceeds after the sale they
that homeowner effectively pays twice! That’s how the law society protects the public interest.
Financial ‘mis-​selling’
What if the bank at the time you bought your home also sold you, say, a mortgage insurance policy? Yes, and what if there are problems collecting on that policy? In the UK, this has famously led to what’s referred to as the financial mis-​selling scandal (see
or Google the term, ‘mis-​selling.’ See also the CBC Marketplace episode, In Denial, Feb. ⁶⁄₀₈
).
If it seems like a conflict of interest to sell purchaser both the mortgage and the mortgage insurance, that’s because it is a conflict of interest. But somehow Canadian financial and insurance regulators OK’d it. How does this work? Who knows? Enforcing consumer rights under such a scheme is anyone’s guess. Good luck trying to get a straight answer out of either federal or provincial regulators. None I’ve consulted has been able to explain even the legislative history of this outrage. The Insurance Bureau of Canada (IBC) in its 2014 wrap-​up (see
) doesn’t address the conflict or mis-​selling although it must go on here just as it does in the UK. Local poverty advocates certainly haven’t a clue so no help there. Don’t expect any information about the mortgage insurance their client sold you from McMillan lawyers, who may actively seek foreclosure before your insurance claim has been fully adjudicated, sometimes before you’ve even submitted your claim! That’s how they roll so far with impunity, although by doing so, both the bank and their lawyers are at risk of a claim for intentional interference in contract (see
) — maybe worse.
What is most irksome about this law firm — besides the veritable legion of suits assigned to a single case — is the shameless swanking a senior partner did while officiating at the Continuing Legal Education Society of B.C. (CLE) Foreclosure 2013 seminar. Not surprisingly perhaps, the course overwhelmingly presented the bank’s side of things. There was very little in the proceedings to assist a homeowner. Although these contests are almost always one-​sided — hardly a contest at all — they were nevertheless recounted at the seminar as great and glorious wins. It was like attending a meeting of failed hunters hoping to boost their spirits by celebrating their marksmanship when all they ever shoot is fish in a barrel. We even had to hear the same partner gas about his expensive hobby collecting cars to demonstrate, one supposes, how much money he made selling homes of the poor and undefended.
Homeowner rights in foreclosure
To anyone facing foreclosure, you DO have some rights. See Mortgages And Foreclosure, Know Your Rights, a small, unassuming paperback by Alberta lawyer David M. Goldenberger available at the Vancouver Public Library (VPL). You are entitled, for example, to live in the house while you try to repay the debt. You don’t have to allow realtors to show it just to please McMillan. Consider creating a lease of more than two years at an affordable rent and registering it on title so that a new buyer takes with notice of residential tenancy. Investigate the creation of a partnership trust in which the property is held. Examine ALL of your insurance policies to see if there is any possibility of mortgage coverage. There may be more ways than one to skin a McMillan fat cat.