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These two, very different incapacity planning documents, are often confused. An Enduring Power of Attorney is the document of choice for most people who wish to plan for the management of their financial affairs in the event of incapacity.

An Attorney must act honestly and in good faith in relation to the Donor’s legal & financial affairs. An Attorney must exercise the care diligence and skill of a ‘reasonably prudent person’ and act within his/her authority granted under the Enduring Power of Attorney. A paid caregiver is specifically prohibited from acting as an Attorney for the adult.

A Representation Agreement allows you to appoint a person to make decisions on your behalf in relation to your health care matters, not your financial affairs. The person or person(s) you appoint must follow the wishes that you expressed while capable. This gives you control over who will be acting on your behalf in relation to your health care. It allows you to plan for the following, for example:

  • Who you would like to make your health/medical/personal care decisions for you in the event that you are incapacitated?
  • What types of heath care treatments you would consent to or refuse if a healthcare provider has recommended them?
  • Under what circumstances would you consent to or refuse these types of treatments?
  • What type of extended health care facility would you prefer to live in, in the event that you are unable to be cared for at home?

Although they are very different documents, they are both extremely important to have in place.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on Estate Planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Real Estate and Wills/Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you!

When you have a debt claim, a first major consideration is obviously how you can collect the amount you are owed cost-effectively. Generally, if a debtor is not paying you voluntarily, then you will need to obtain a judgment from a British Columbia Court or a judgment from another jurisdiction as a first step. For a judgment from a foreign jurisdiction, even another province, that judgment will need to be properly registered with the BC Courts before you will be in a position to take any steps to collect on that judgment in BC. For the purposes of this discussion, we will assume that you have a valid judgment registered with either the Supreme Court or the Provincial Court in British Columbia.

Once you have a Court judgment registered in BC, then you need to locate income or assets in BC in the name of the judgment debtor. If you know where the judgment debtor works, then you can apply for a garnishing order from the Court and serve it on the debtor’s employer and the debtor. You can also garnish funds due and owing to the debtor by a person or corporation that is not an employer. In order to garnish a debtor’s bank account, you will need to know which branch of which financial institution the debtor has their account, as well as when the debtor actually has a positive balance in the account. You cannot garnish a line of credit or overdraft. If there are funds due and owing to the debtor when the order is served, then the funds will generally be paid into Court and you will then be able to apply to have the funds paid out of Court to you.

Another possible avenue for collecting on a judgment can be seizing and selling an asset. The issue in many cases will be locating assets in which the debtor has equity. It is often worthwhile to conduct a search in the personal property registry (“PPR”) in the debtor’s name. In addition to a PPR search, a creditor with a judgment in BC can conduct a vehicle registration search with ICBC to see if the debtor has any vehicles registered in his/her name in BC. In order to conduct this search with ICBC, you will need to know the debtor’s full legal name, address and date of birth. If an asset that is owned by the debtor has a security interest which is properly registered in the PPR against the asset, then that secured creditor will need to be paid out in priority to your judgment. Of course, you would not generally want to seize and sell an asset if somebody else is going to get all the net proceeds from the sale. Personal property that can be seized and sold to collect a judgment can include vehicles, shares in a BC corporation, jewelry, tools (with some restrictions) and recreational property.

Real property can also be a source for collecting on a judgment. Real property is commonly thought of as land and buildings. A search of the debtor’s name at the BC Land Titles Office will show if there is property registered in the name of the debtor in BC. Registration of a judgment on property can limit the ability of the debtor to sell or refinance the property until such time as the judgment has been discharged by you or by a Court order. If there are mortgages registered against the property, the mortgage holder will be paid in priority to a subsequently registered judgment.

If you have a judgment, but do not know of any assets or income to collect against, then there are procedures to examine a debtor about his/her ability to pay. If your judgment is from the BC Supreme Court, then you can conduct an examination in aid or execution and compel the debtor to answer questions under oath about the debtor’s assets, income, liabilities and expenses. For Provincial Court judgments, you can require the debtor to answer questions about their financial situation and ability to pay the judgment.

Of course, you cannot collect money from someone that does not have any assets or income. It will typically be worthwhile to think about your ability to collect a judgment at an early stage, even prior to obtaining judgment. Enforcing a judgment can be a difficult process with some debtors. It is a trite saying that “you can’t get blood from a stone” and seeking the advice and assistance of a lawyer at an early stage can help you to make an informed decision about whether your efforts are likely to be productive.

Building your own home can be a challenging, but rewarding experience. Many property owners will choose to oversee or complete the construction of their home or major components of it and plan to live in their home for the rest of their lives. One of the risks of overseeing or completing construction of a home is that, upon its sale, a home owner will remain exposed to liability for subsequent purchasers and occupants of the home.

In Nieman v. Kroeker, 2017 BCSC 368 (CanLII), the defendant and then-property owner acted as his own general contractor in the construction of his house in 2004. In 2005, after the final inspection had been completed, the defendant did extensive landscaping work which involved building two terraced retaining walls, building a large patio, installing a barbeque, installing a fireplace, installing a hot tub, installing a second patio and placing stone cladding on the front of the house. The defendant had no formal training in the field of construction, but had previously acted as his own general contractor in the construction of another house in the 1980’s.

Since the defendant planned on living at the property, he sought and was granted an exemption from the requirement of the Homeowner Protection Act to obtain insurance.

After the plaintiffs purchased the home in 2008, a number of the landscaping features began to fail and did so in a manner that risked harm to the plaintiffs and occupants of their home.

Outside certain limited contexts, ordinarily there needs to be a contractual relationship or a relationship of proximity based on foreseeability between a victim and a wrongdoer for the victim to recover. However, in Nieman, the plaintiffs avoided issues with the need for such a relationship, the limited protection provided by property disclosure statements and Limitation Act concerns by basing their claim on the legal principals detailed in Winnipeg Condominium Corporation No. 36 v. Bird Construction, 1995 CanLII 146 (SCC)[1995] 1 S.C.R. 85.

Put simply, Winnipeg Condominium stands for the principal that a contractor or other person responsible for the design and construction of a building may be held liable in tort to pay for the cost to remedy latent defects in such a building and where such defects create a real and substantial danger to inhabitants of a building. The rights detailed in Winnipeg Condominium are available regardless of there being a contractual relationship between the constructing party and the claiming party (although, in the case of Nieman, there was a contractual relationship) and arise when an issue is discovered rather than when the negligent construction occurs. In theory, a property could pass to several owners and a party discovering a dangerous and hidden defect could still claim against the original party who constructed or designed the property.

In Nieman, the court found that the defendant’s lack of professional experience and intention to utilize the property for his own use did not change the standard of care applicable to any party constructing a property. The former defendant remained liable to the plaintiffs for defects which occasioned or could occasion danger. The court also found that the result of the defendant’s negligent construction was easily foreseeable; that is, he ought to have known that the manner in which he constructed the property could occasion harm or would be dangerous.

The court awarded the plaintiffs the amounts required to replace the faulty and dangerous features installed by the defendant less some subtractions for some amounts spent improving rather than replacing defective features and as a result of certain elements of the work done by the defendant having not immediately failed.

Nieman highlights that, even where the plan is for owners to live and die in the home they are constructing, it remains incumbent on owners constructing their own home to ensure that their property is constructed properly, in a safe fashion and in line with all applicable building standards. By failing to construct features in accordance with prevailing industry standards and in a way that avoids any foreseeable risk of harm to future owners and occupants, an owner-builder exposes themselves to potential litigation from future owners and occupants for years to come.


If you have any questions about any defects in your home that are or may be dangerous or have become involved in a dispute involving allegations of same, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact anyone in our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

When negotiating the purchase and sale of a business, the parties to the transaction frequently look for ways to structure the deal to ensure that all parties’ interests are met. Buyers are primarily concerned with ensuring that the price paid for the business aligns with their expectations for the future growth and revenue generation of the business. Conversely, sellers are concerned with ensuring that they receive maximum value for the business that they are selling. A creative way to bridge the gap between their respective views regarding the value and/or future outlook for the business is to incorporate an earn-out clause into the purchase and sale agreement.

An earn-out provision specifies that a portion of the purchase price for the business will be paid to the seller only if the business meets certain predetermined performance or operational milestones over a specified period of time after closing of the transaction. While milestones are frequently based on financial benchmarks including, but not limited to, revenue, net income, or earnings before interest, taxes, depreciation and amortization (EBITDA), they need not be. Indeed, there may be industry specific or other unique measurements that are important to the parties such as the receipt of a governmental approval for a product or obtaining a certain achievement in research and development. Regardless of the target(s) chosen, if the business achieves or exceeds the milestones within the pre-determined earn-out period, the earn-out payment is payable to the seller.

Earn-outs have associated advantages and risks for both sellers and buyers. For example, a seller may be in favour of an earn-out because they typically provide the seller an opportunity to realize a greater amount from the sale of the business. Conversely, an earn-out can be a risky proposition for a seller if they have limited control over the operations of the business during the earn-out period or restricted access to the records of the business post-closing. There may also be a concern that the buyer can manipulate the earn-out calculations to the detriment of the seller.

Buyers may be in favour of an earn-out because it can align the risk of achieving an overly-confident seller’s forecasts with the value ultimately received by the seller. It also reduces the amount of consideration due from the buyer at closing and potentially provides assurance that the buyer has received the bargained for value of the business. The buyer also assumes some risk in agreeing to an earn-out, including, if the seller continues to work in the business, the potential for the seller to sacrifice the long-term interest of the business for short-term maximization of his or her earn-out payment.

An earn-out provision can be a useful tool to bridge the valuation gap between a buyer and seller. That said, negotiating and drafting earn-out provisions can be challenging because of the numerous variables and an earn-out’s vulnerability to manipulation by the parties. The calculation and payout of earn-outs can also result in post-acquisition disputes. As with many provisions in a purchase and sale agreement, earn-out provisions are unique to each transaction and careful attention is required to ensure that the earn-out is structured to meet the needs of the parties and reduce the likelihood of future disputes.

If you are interested in learning more about earn-out provisions, or if you are contemplating the purchase or sale of a business, please contact Keith Inman at inman@pushormitchell.com or by phone at 250-869-1195.


Keith Inman is a securities and M&A lawyer with broad experience in the capital markets. Keith regularly advises individuals and companies with respect to purchases and sales of businesses, capital raises, securities reporting and compliance matters and other corporate/commercial matters. Keith is qualified to practice law in both British Columbia and Alberta. You can reach Keith at 250-869-1195 or by email at inman@pushormitchell.com.

Distracted driving is a huge problem and one that is costing lives. It is now responsible for more motor vehicle deaths than drunk driving. The Trial Lawyers Association of BC, alongside community groups and professional associations from across the province, have launched a public awareness campaign called the BC Coalition to End Distracted Driving. The website is www.distracteddrivingkills.ca.

DISTRACTED DRIVING KILLS is an initiative to create awareness about today’s disturbingly dangerous reality on BC’s roads. We want to promote the prevention of it, and provide a forum to share stories about the devastating impacts distracted driving is causing across our province.

The BC Coalition to End Distracted Driving and its members have launched this campaign to encourage British Columbians to put their phones away, keep their hands on the wheel, and commit to being “present” while driving.
Always.
Because, no matter who is calling, what notification chimes, or who is in the backseat – taking your focus away from driving at any time, for any distraction, is NOT WORTH IT!

You won’t let your friends drink & drive – now it’s time to expand that perspective and make sure we don’t let our friends, family or loved ones drive while distracted.

Here’s How You Can Help

Visit their website at www.distracteddrivingkills.ca. There you’ll find a growing list of personal stories and statistics about the devastating impacts of distracted driving in BC. Read, watch, listen – and then share. You’ll find easy links to Facebook, where many of these stories will also be showcased, and where you can like and share with friends, relatives and neighbours.

Forward this information to your friends, family and colleagues.
And if you know of any organization that may want to join the Coalition, please send this to them, and ask them to get involved as a Coalition Partner.

It’s time we stood together as concerned British Columbians to put an end to this.
Help spread the word that any distraction while driving is no longer accepted or tolerated.

We hope you will check out the website and have a look. Please sign up for the email list and like it on Facebook https://www.facebook.com/distracteddrivingkills.

Share the message with as many people as you can. The broader the message can be spread, the better.


Paul Mitchell, Q.C. is a BC personal injury lawyer who is a Past Member of the Board of Governors of the BC Trial Lawyers Association. He has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, bicycle claims, death claims, ICBC claims, and other catastrophic injury claims. He is acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company. For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com

Should I put my Will in my safety deposit box? That is a frequently asked question by many clients of mine. We have a large vault at our office and always recommend to clients that they let us keep their original Wills in our vault for safekeeping. We give them blank copies and file a Wills Notice registering the location of our client’s Wills with the Vital Statistics Agency in Victoria. It is very easy for an Executor to come in and meet with us, the lawyer for the deceased, pick up the Will (with death certificate and appropriate ID) and gather some Estate information/assistance from us. Nobody can go into the deceased’s safety deposit box except for the Executor, but you don’t know who the Executor is until you open the box and read the Will, which can sometimes make things difficult.

If the deceased does have a safety deposit box, the Executor will need to make an appointment with the bank, again taking the death certificate and appropriate ID to gain access to the box. The bank will likely open the box in the presence of a bank staff member who acts as a witness. As Executor you will carefully need to list all the contents of the box, in front of the bank staff member.

Once that is done, make sure that you change the ownership of the box to the deceased’s estate so that you can easily access it at a later date if need be. You can close the box if you wish but sometimes Executor’s like to keep it open for the deceased’s valuables/personal papers while the Estate is ongoing – after all, one of the Executor’s duties is to keep Estate valuables safe. Remember, if items go missing, the Executor can be personally responsible for them.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on Estate Planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Real Estate and Wills/Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you!

The inscription on the U.S. side of the Peace Arch monument at the Peace Arch Border Crossing in Blaine, Washington reads “Children of a common mother” in reference to the ties that both Canada and the United States have to Great Britain. Interestingly, the children of a common U.S. citizen mother, even if born on different sides of the U.S./Canada border, may all be U.S. citizens according to U.S. immigration law.

Generally, when it comes to acquiring U.S. citizenship through a U.S. citizen parent, the rules that govern the process differ depending on when the child was born and how old they are at the time they apply. This is due to various legislative changes over the years to the rules that determine how and when one can acquire U.S. citizenship through their parents. Whether one is born abroad to two U.S. citizen parents in wedlock or born abroad to a U.S. parent and an alien parent in wedlock or born abroad out-of-wedlock to a U.S. Citizen father or U.S. citizen mother will also impact how and whether one is able to acquire U.S. citizenship.

A child born abroad to two U.S. citizen parents in wedlock, assuming one of the parents resided in the U.S. prior to the child’s birth, acquires U.S. citizenship at birth pursuant to section 301(c) of the Immigration and Nationality Act (INA). For those children born abroad to one U.S. citizen parent and one alien parent in wedlock, if they were born on or after November 14, 1986, the U.S. citizen parent must establish that they maintained a physical presence in the United States for a period of 5 years with 2 of those 5 years occurring after the U.S. citizen parent turned 14. In the case of those born between December 24, 1952 and November 13, 1986, the physical presence requirement is ten years and 5 of those years must be after the age of 14 in order to transmit U.S. citizenship to the child. The rules governing whether a child born abroad out-of-wedlock to a U.S. citizen father or mother differ depending on whether the U.S. citizen father or mother is the qualifying parent.

In all cases, appropriate documentation and evidence will need to be provided to complete the process. Some of the documents that may be required include the following:

  • child’s birth certificate
  • marriage certificate of child’s parents
  • evidence of United States citizenship of parent:
    1. birth certificate
    2. naturalization certificate
    3. other proof of U.S. Citizenship i.e., Certificate of Citizenship

Given the process of acquiring U.S. citizenship can be complicated, it is important to seek out the advice of U.S. immigration counsel who can assist in navigating the statutory requirements and simplify matters for the applicant.

Under the BC Family Law Act, benefits in a pension plan are” family property,” which means that separating spouses are entitled to equally share the benefits accumulated during cohabitation. Sometimes, pension plans are one of the largest and most significant family assets to be divided upon spousal separation. However, pensions are complex and are often misunderstood. Frequently the true value of a pension is underestimated by family law clients.

What type of pension is it?

There are two broad types of pension plans: defined benefit plans and defined contribution plans. In DBP, retirement benefits are based on a formula set out in the plan, for example, 2% x years of service x highest average earnings. In DCP, both the employer and employee contribute a percentage of earnings to the plan, (for example 5%) and the balance available at retirement is the net total of contributions plus earnings, net of fees. Both types of pensions can be highly valuable assets when the aggregate value is considered, even though the value may not feel significant on the date of separation.

Where is pension registered?

The options available for pension division vary significantly depending on where and how the pension is registered. The best way to determine the rules that apply to dividing a pension is to contact the pension plan administrator. When a recipient spouse files a Form P1 Request for Information, the plan administrator will provide information about the plan, the most recent benefits statement and information about when and how the benefits can be divided. If the parties ultimately negotiate a family law settlement which involves a pension division, the plan administrator charges a fee to divide the pension, usually $500 to $750.

Has the Pension commenced?

The framework and options available for dividing the pension depend on whether the pension has “commenced.” If the plan member has retired and is in receipt of monthly pension benefits, the plan is considered to have “commenced.” Generally speaking, before a pension has commenced, the recipient spouse has several options available: transfer his or her share of the pension to a prescribed locked in vehicle, commence a separate pension for life or defer a decision until the member retires. After commencement, the income stream from the pension plan is divided; and income security may be lost to the spouse because it may be too late to change an earlier election to forgo survivorship benefits.

What about Survivor Benefits?

Upon retirement the pension plan member usually has the option of choosing between various payment options and survivor benefits. The amount of monthly benefits the plan member receives will vary depending on the option chosen. After separation, a retired plan member may wish the survivor benefits to go to a new partner rather than the former spouse. Similarly the retired plan member may wish to maximize his or her monthly benefit payment. However under BC law, the member must elect a pension that pays the former spouse a survivor benefit in the event the member dies first, unless the former spouse expressly gives up that right by signing a survivor waiver. Before signing a survivor waiver, it is strongly encouraged for the recipient spouse to obtain independent legal and financial planning advice.

How much is the pension really worth?

Pensions can be highly valuable but unfortunately it is impossible to understand the true value of a pension unless it is professionally valued by an actuary. In practice I find that most clients don’t understand why a valuation is necessary. Parties are often misled or confused because they simply look at the last plan statement and erroneously believe the amount listed on the statement (contributions made) is a true reflection of the value of the pension. Similarly I frequently encounter clients who either dismiss the pension as unimportant or tell me they “don’t want to touch” the other spouse’s pension upon separation. When I ask clients why, they often have concluded the pension is insignificant since both spouses have some form of pension or retirement savings. Other times the sentiment is based on a sense of fairness or entitlement: he or she earned it at work. However I explain to clients just like any other family asset they are entitled to share in the contributions made during cohabitation. Therefore before they relinquish their claim to a pension I urge my clients to obtain an actuarial valuation of the pension so they fully understand what they would be giving up. The valuation usually costs approximately $500 to $750 which is the same as the fee for the pension administrator to divide the pension at source. Frequently the valuation illustrates that the pension is far more valuable than the client realized. Once a pension valuation is done the parties may decide instead to leave the pension undisturbed, preferring to set off the difference in value between the assets.


Monica McParland is a member of our Family Law Department and can be reached at mcparland@pushormitchell.com

Real property ownership in British Columbia is governed by a modified Torrens system for title registration. S. 23(2) of Part 3 of the Land Title Act provides that the registered title for a property in the Land Title Office is conclusive evidence at law and equity as to who the registered owner(s) of a property is(are). This section can be problematic when the ownership reflected in a property’s title does not reflect the reality of ownership between the owners on title.

Significant issues can and do arise when parties do not register their interest in a property in the Land Title Office or do not properly document ownership interests that are not reflected on title. The recent case of Brar v. Gill, 2017 BCSC 186 (CanLII) is illustrative of issue that may be encountered if parties do not keep the effect of the Land Title Act in mind.

In Brar, disputes arose between the parties over a number of interrelated transactions. At the heart of the litigation was the allegation by the defendants that the plaintiff was registered on title to the subject property only for the purpose of securing financing and that she had no beneficial interest in the property. The plaintiff denied that she held an interest in the property for the benefit of the defendants, denied she owed the defendants money and that her being on title reflected the contributions that she made to the purchase of the property.

What appears clear from the case was that there was significant intermingling of the parties funds through a whole series of transactions and that there was substantial evidentiary issues concerning the proof of such transactions.

The Court held that the Land Title Act creates a presumption that the registered title reflects ownership and that that presumption can only be rebutted in limited circumstances. The defendants were unable to produce convincing and consistent evidence that the plaintiff’s interest in the property was gratuitously transferred to her by the defendants; rather, the evidence tended to support the notion that the plaintiff assisted with the down payment and was entitled to an interest in the property as a result.

The defendants lead inconsistent and unconvincing evidence that they had no knowledge that the plaintiff was registered on title.

In the end, the Court found that the plaintiff was entitled to one-third of the net sale proceeds of the property after accounting for the pay down of the mortgage debt.

Brar is illustrative of the risk that parties take in failing to document and record agreements with respect to ownership and contributions to ownership of a property especially were funds advanced for the purchase of a property are intermingled with a number of other transactions between the parties. Even though parties may intend otherwise, the ownership interest on title is presumed to represent reality unless substantial and well-documents proof can be provided to rebut this presumption.

It is not uncommon for parties to put someone on title to assist with guaranteeing a mortgage, to secure financing, in an attempt to avoid property transfer tax or for any number of reasons. That said, the failure to properly document the underlying intentions and transactions of the parties can occasion unanticipated results when co-owners find themselves in the midst of a dispute. Parties are well advised to seek timely and competent legal advice before considering co-ownership or adding someone to the title of their property(ies).

If you are in the midst of a dispute concerning the ownership of a property, please do not hesitate to contact me via 1-800-558-1155 or at burgess@pushormitchell.com or any of our commercial litigators. If you are considering joint ownership or otherwise need assistance in documenting and completing a financial transaction involving property, please do not hesitate to contact our Real Estate group.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in builders lien and construction disputes. If you have any questions about builders liens or construction disputes, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

A party claiming a builders lien must do so by filing a “claim of lien” in the form prescribed by the Builders Lien Act, S.B.C. 1997, c. 45 (the “Act”). A lien claimant must adhere to the requirements of the Act in completing the form or risk invalidating his lien. The recent case of Omnique Construction Inc. v. Xu, 2017 BCSC 208 demonstrates the consequences of a lack of attention to detail when completing the required form.

In Omnique, the principal of a company that was hired to completed the forming and framing component of a project mistakenly named herself as the lien claimant on the form instead of the company. The form did properly state that the money was allegedly to the company, not its principal.

An action to enforce the lien was commenced in the name of the company. The defendants applied for an order cancelling the claim of builders lien on the basis that the lien claimant was improperly described on the Form. The company opposed the cancellation on the basis that the error was an innocent mistake which did not prejudice the defendants. The company submitted evidence showing how the contract among the parties was formed and to the effect that the principal of the company did not intend to name herself as lien claimant in place of the company.

The company tried to walk a fine line by distinguishing the case from other cases in which builders liens had been cancelled for similar errors. Ultimately, the court held the case was indistinguishable from such cases and ordered that the lien be cancelled. While the case is not “ground breaking” in terms of the interpretation and application of the Act, the court made several findings which will provide guidance when the questions of the validity of lien claims are raised in the future:

  1. The Act requires strict compliance regarding the time and manner in which a lien claim is filed. The principle of strict compliance with the Act is not fact dependent.
  2. The intention of the filing party is irrelevant. The manner and form of a lien claim cannot be relaxed by taking into account a party’s intention. Any inquiries into the intention of the lien claimant in filing the form are incompatible with the scheme of the Act which provides for cancellation of a lien on a summary basis, sometimes without notice to the lien claimant or necessity of a court hearing.

Omnique highlights the importance of properly completing the required form to claim a builders lien. It is important to understand the distinction between incorporated and non-incorporated forms of business when completing the Form. If you are uncertain whether you have completed the form correctly, you should seek legal advice.


Mark Danielson is an Associate with Pushor Mitchell LLP. His litigation practice covers a number of areas including business disputes, construction law, builders liens, debtor/creditor claims, and property disputes. You may contact Mark at 250-869-1284 or danielson@pushormitchell.com.

A Power of Attorney, if used carefully, is an important estate planning tool. This legal document is commonly prepared to provide for situations where a person cannot manage his or her own affairs. It gives another person (whom you appoint) the power to deal with your legal and financial affairs when you are unable to (many spouses appoint each other and / or their adult children). Many of my clients do up their Powers of Attorney, appointing people they trust fully, with no intention of their Power of Attorney being used until some undetermined time in the future (accident, dementia etc.). They leave it in our vault, or they keep it somewhere safe at home.

What I am finding lately though, is that financial institutions are becoming more and more stringent in their internal requirements / policies regarding whether or not they will accept the Power of Attorney. Keep in mind that the financial institutions role is to protect their client first and foremost. If their client (the Donor under the Power of Attorney) is incapacitated, then this can be problem – they have no way of checking with their client that the Power of Attorney is valid (even though it is a properly prepared Power of Attorney).

Theoretically, as long as your Power of Attorney is properly prepared and witnessed, and the financial institution has no reason to suspect that it is invalid, it should be recognized. That being said, to avoid any issues with your financial institutions internal policies “when the time comes”, it is strongly recommended that you go to your financial institution and make sure they put a copy of your Power of Attorney on file and confirm the arrangement directly with you, their client. You should also send a copy to any other financial institutions that you deal with. This way, they will have a note on your file that you personally (their client) advised them of the Power of Attorney that you had put in place and confirmed its validity while you were of sound mind.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Real Estate and Wills/Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

Incidents of “dooring” are increasing. Both cyclists and drivers need to read this article.

“Dooring” is a term used to describe an accident in which an occupant of a parked vehicle opens their door and hits a passing cyclist. Urban cyclists live in constant fear of it: the click of a car door opening just as they ride by, followed by a crash that sends them hurtling off their bike and into the street. These collisions often cause serious injury to the cyclist. As someone who has acted for many injured cyclists, I have seen the devastating injuries these collisions can cause.

The Toronto Star reports that data provided by the advocacy group Cycle Toronto to the Toronto police show that between 2014 and 2016, there was a 58.3 percent increase in the number of doorings.

Last year there were 209 collisions in Toronto caused by dooring, up from 175 incidents in 2015, and 132 the year before that. “These are life-changing collisions that can result in serious injury or death,” said Jared Kolb, executive director of Cycle Toronto. He speculated that dooring is happening more often, in part, because more people are choosing to ride a bike for their everyday trips. Kolb added that, because the data only capture incidents reported by the police, the figures “should be considered a minimum. Likely the real number is much more than that.”

Cycle Toronto is asking the city to improve cycling infrastructure, including the installation of separate bike lanes on major streets, according to the Star. They also want the city to consider removing on-street parking on roads with streetcar tracks to improve bike infrastructure and banning some taxi and rideshare pickup lanes.

The group is also encouraging education on a technique known as the “Dutch reach,” for opening a car door, which involves a driver using their right hand, forcing them to be aware of what’s happening over their shoulder.

Dooring is a growing problem in BC as well, with over 370 accidents reported to ICBC over the last five years. Many more likely go unreported. ICBC estimates that one in 14 car crashes involving cyclists are the result of “dooring”.*

In July 2015, Patricia Keenan was killed cycling in Kelowna when someone suddenly opened the driver’s-side door of a parked car. Despite wearing a helmet, Keenan sustained serious head injuries and died in hospital two days later leaving behind a 10-year-old son.

HUB Cycling (formerly the Vancouver Area Cycling Coalition) is a charitable non-profit organization, originally established in 1998 to improve cycling conditions in Metro Vancouver. Colin Stein, HUB’s director of campaigns, says a cyclist is doored almost twice a week in Vancouver, and that the driver is almost always responsible.
“That’s everything from getting clipped on your pedal to actually slamming into the door,” Stein told CBC News. “That can result in anything, from minor to major injuries, even death.”

HUB drives the point home in its “Open your eyes, open your door” campaign, which pictures a grave site cross and flowers adorning an open car door. “It’s about changing behaviour and that’s difficult when someone has been driving their whole life and is just used to flinging their door open,” said Stein. HUB advises drivers check mirrors and get in the habit of using their right hand to open the car door.

See info on dooring and bike safety in general here:

HUB dooring safety campaign
HUB raise your bike IQ information page

Other cities have started similar anti-dooring campaigns. One in California. (www.CheckForBikes.org), has come up with small sticker to place on the inside of the driver window saying “ check for Bikes”. They can be ordered online. “It actually forces them to look behind,” the representative says, he said. “That way. they can get a good view at what’s coming up behind them so that they don’t actually become a doorer.”

PREVENTING DOORING IF YOU ARE A CYCLIST

If you’re a cyclist , other ways to avoid dooring:

  • Stay out of the “door zone” and ride at least one metre from parked cars.
  • Avoid streets with lots of parked cars.
  • Take separated bike lanes whenever possible.
  • Choose routes along quieter streets.
  • Use lights, even in daytime.

In B.C., a cyclist who is in a collision with a motor vehicle can file a claim against the driver’s ICBC insurance. In “dooring “ cases, a court will generally rule that a person who opens a vehicle door as a vehicle passes is 100 per cent at fault for any resulting collision. (Motor Vehicle Act, Section 203) Here is what the courts in British Columbia have decided in several dooring cases:

Anderson v. Leung

In the 1988 British Columbia Court of Appeal case of Anderson v. Leung [1988] BCWLD 747, a cyclist was riding along West Broadway when he collided with the opened door of a parked car. The driver of the car was found to be 85 per cent at fault for having opened her vehicle’s door without regard for approaching traffic. The cyclist was found to be 15 per cent at fault for not wearing a helmet.

Demchuk v. Insurance Corporation of British Columbia

In the British Columbia Supreme Court case of Demchuk v. Merit Consultants Ltd. [1992] BCWLD 598, one driver was parked tightly to a building in a lane close to Arbutus and 46th Avenue. As he was opening his car door, it was hit by a passing vehicle, slamming it open and forward.

The judge said that the parked driver was in clear violation of his duty: he started getting out of his vehicle with no regard for the safety of doing so, and he failed to first look for traffic. The other driver had no warning of what the parked driver was about to do, so was not at fault.

Halfyard v. Insurance Corporation of British Columbia

The British Columbia Provincial Court case of Halfyard v. Insurance Corporation of British Columbia [1993] 26 CCLI (2d) 320, was another case where a cyclist was injured when a passenger opened his car door. The cyclist was riding his bike eastbound on Cornwall Avenue at Yew Street in Vancouver, and was slowing for a red light. He was travelling between a row of vehicles parked on his right and a row of vehicles parked on his left. A passenger in one of the vehicles parked on the left opened her door and hit the cyclist’s leg. The passenger then left the scene. The court ruled that the unknown person was 100 percent at fault.

The injured cyclist damage claim against the driver would include pain and suffering, income loss, and care costs. If the cyclist is killed, the surviving family can make a claim under the Family Compensation Act against the driver and ICBC.

As cycling season is about to commence, please take care out there.
Also feel free to forward this article to anyone who you think may benefit from this information. You may prevent a serious injury by educating your family and loved ones.


Paul Mitchell, Q.C. is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, bicycle claims, death claims, ICBC claims, and other catastrophic injury claims. He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company. For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com

While not guaranteeing the settlement of disputes, the Builders Lien Act, S.B.C. 1997, c. 45 (the “Act”) provides a powerful tool for contractors, subcontractors, workers and suppliers to enforce claims for unpaid work and materials supplied in respect of the improvement of real property. The Act does so through creating a statutory right of a lien -a right to encumber real property to secure a debt- where no such right is available under the common law. The trade-off of the Act creating a right to claim a lien is that strict compliance with the Act is required for a lien to be maintained.

The recent case of Omnique Construction Inc. v. Xu, 2017 BCSC 208 (CanLII) is illustrative of how careful lien claimants must be in complying with the Act.

In Omnique Construction, a contractor, Omnique, had done work improving a property owned by Ms. Dong. Ms. Sun was a director and officer of Omnique and apparently owned the company or owned it in partnership with her husband.

In May, 2015 Omnique was hired by Ms. Dong’s husband, Mr. Xu, to provide forming and framing service for a house being built on Ms. Dong’s property. By June, 2015, disputes had arising among the parties and Mr. Xu terminated Omnique.

The central issue in the case arose as a result of Ms. Sun registering a builders lien in her name rather than in the name of her company and the contracting party, Omnique. As is often the case where companies are managed and owned by one person, Ms. Sun apparently failed to consistently appreciate and maintain the legal distinction between herself and her company.

Ms. Dong sought to have the lien cancelled; arguing that the Act required strict compliance and that Ms. Sun issuing the lien in her name rather than in Omnique’s name failed that requirement. Ms. Sun argued that her claiming the lien rather than Omnqiue was a mere technical error and that the essential elements of the lien were accurate.

The Court noted that in 581582 B.C. Ltd. v. Habib, 2013 BCSC 378 (CanLII), the Plaintiff had registered the lien in its doing business as name (which was not a legal entity) and that that error was enough to cancel a lien. The Court in Omnique Construction noted a number of legal authorities which hold that strict compliance with the Act is required. The Court went on to find that Ms. Sun’s lien was invalid as the party claiming a right of lien was not the party actually possessing the right to make such a claim. Ms. Sun’s arguments that the lien form was confusing and that she intended to file the lien as agent for Omnique were also rejected.

The Court extinguished Ms. Sun’s lien and ordered her to pay costs and damages related to the wrongful filing of her lien.

Omnique Construction is a reminder of the long-held maxim in this province that builders lien claimants must strictly comply with the requirements of the Act or risk their lien being extinguish and the sanction of damages and costs against them (see also Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd., 2006 BCSC 885 (CanLII) and Framing Aces Inc. v. 0733961 B.C. Ltd. dba Omni Pacific, 2009 BCSC 389 (CanLII)).

While contractors, subcontractors, workers and suppliers can and do file builders liens properly without legal assistance, any such parties who have concerns about the strict compliance requirements of the Act or are inexperienced in filing liens should seek appropriate and timely legal advice. The strict requirements of the Act and the short timelines it imposes for claiming a lien necessitate a party seeking any required assistance at their first opportunity to do so as waiting in order to preserve and pursue that party’s lien rights.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in builders lien and construction disputes. If you have any questions about builders liens or construction disputes, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

Traditionally, family law lawyers have been retained to represent clients by assisting them in resolving their disputes from start-to-finish. The lawyer’s representation of the client usually lasts several months or several years. At the start of a family law case it can be very difficult for the lawyer to predict exactly how much work will be involved before the parties reach a resolution, so it is challenging for a lawyer to predict the total fees. Unfortunately many clients simply cannot afford to pay for significant legal fees if the file continues unresolved over an extended time frame of months or years.

However a new trend is emerging in the practice of family law whereby lawyers are starting to offer clients “Unbundled” legal services. Simply put, unbundling is when a client retains a lawyer to perform only certain aspects of their family law case and the client is responsible to conduct the remainder of the case. Lawyers call this arrangement a “Limited Scope Retainer”.

In a Limited Scope Retainer, family lawyers offer various legal services to their clients in an a la carte menu whereby the client can pick and choose which services the client wishes to use. This model enables the client to carefully select those services for which he or she wishes to pay the lawyer, after weighing his or her needs and budget. One clear advantage of Limited Scope Retainers is that the client is able to exercise a measure of control and predictability over his or her spending on legal fees.

The a la carte services offered by a family law lawyer may include:

  • Initial Consultation Advice : the lawyer explains the law and provides an opinion as to the range of likely outcomes and the courses of action available to the client;
  • Independent Legal Advice: the lawyer explains the law and provides an opinion as to the fairness of a proposed settlement and the range of likely outcomes through litigation
  • Drafting family law agreements on terms provided by the client, including cohabitation, marriage and separation agreements;
  • Ongoing legal advice or coaching, provided on an as-needed basis;
  • Assisting clients in completing court forms, including affidavits and financial statements,
  • Guiding clients though the disclosure process;
  • Assisting clients with legal research
  • Conducting examinations for discovery or attending examinations for discovery for the client
  • Preparing “Desk Order Divorce” applications
  • Providing advice and analysis prior to Mediation
  • Representation in Mediation
  • Advising clients on their best and worst alternatives to a negotiated settlement
  • Preparing written agreements on the terms of any settlement reached at mediation

It is important to note that not every family law case may be appropriate to handle as a Limited Scope Retainer. The key to success is effective communication between the lawyer and client. In order for Limited Scope Retainers to work successfully there must be very clear understanding between the lawyer and client regarding precisely what tasks the lawyer will perform and which tasks the client will perform. In order to insure both parties fully understand the lawyer should set out in writing the nature, extent and scope of the services the lawyer will provide and how the client will be billed for those services.

The Government of British Columbia recently announced significant changes to how legal disputes worth less than $5,000 and between $5,000 and $35,000 get resolved.

As of June 1, 2017, the Civil Resolution Tribunal (“CRT”) is assuming jurisdiction in respect of disputes under $5,000 in a number of areas which were formerly under the jurisdiction of the Provincial Court of British Columbia (Small Claims).

The CRT is an online tribunal that already accepted strata property disputes. With the upcoming amendments, the CRT will assume authority and jurisdiction to resolve disputes under $5,000 concerning:

  • debt or damages;
  • recovery of personal property;
  • opposing claims to personal property; and
  • demanding performance of an agreement about personal property or services.

The CRT continues to not have jurisdiction to resolve disputes concerning, among other things:

Appeals from decisions of the CRT continue to be pursued through the Provincial Court.

Coupled with the change to the purview of the CRT on June 1, 2017 is a change in the monetary limit of Small Claims from $25,000 to $35,000.

At the time of this article, information on the transition provisions that will apply to this change is relatively scant. What is indicated by the Provincial Court website includes:

  • claims already commenced in Small Claims can increase the amount of the claim by is by following Rule 8 (the Rule concerning changing or withdrawing a claim or reply); and
  • claims commenced in the Supreme Court that are now within the Small Claims jurisdiction can continue in Supreme Court, but may be bumped down to the Supreme Court at the application of a party to the proceeding or on the discretion of a Judge or Master per s. 15 of the Supreme Court Act.

A number of points of clarification may be required, for example, how the new legislation would concern costs in settlements that are within the Small Claims jurisdiction, costs where the amount recovered is within the Small Claims jurisdiction or potential wasted steps and costs if a proceeding had already been transferred from Provincial Court to Supreme Court and may now be transferred back.

In consideration of the information known to date, prudence suggests that:

  • settling or resolving Supreme Court matters that may be worth less than $35,000 but more than $25,000 prior to the change in the Small Claims limit may be beneficial as, afterwards, a party may no longer be entitled to court costs they were entitled to prior to the transition;
  • resolving Small Claims matters that may be worth more than $25,000 prior to the transition provisions -whether through settlement or at trial- runs the risk of not recovering damages that might otherwise be recoverable after June 1, 2017;
  • negotiations of the settlement Small Claims matters worth more than $25,000 should keep in mind that the claimant appears to have the right to increase their claim to more than $25,000 after June 1, 2017;
  • there may be further as-of-yet unknown challenges, difficulties and risks and further legislative clarification for claims worth between $25,000 and $35,000 that are note known which makes commencing and continuing claims in that range, whether in Small Claims or Supreme Court, challenging and risky.

In this writer’s view, the expanded purview of the CRT will likely shift a number of relatively small and simple matters out of Small Claims, thereby freeing up Court resources, and reflects and ought to assist in the realization of the mandate of the CRT in respect of such disputes. The CRT’s mandate being:

  • to provide accessible, speedy, economical, informal and flexible dispute resolution;
  • to apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the CRT proceeding is concluded;
  • to use electronic communication tools to facilitate resolution of disputes brought to the CRT; and
  • to accommodate, so far as the CRT considers reasonably practicable, the diversity of circumstances of the persons using the services of the CRT.

There has long been a rallying cry for the jurisdiction of Small Claims to be expanded. Although the monetary jurisdiction increase does not go as far as many have called for, it does recognize that often Small Claims matters involve complex legal proceedings concerning sums of money which are, to the parties involved, significant. The increased monetary jurisdiction provides a little more room for it to make economic sense for parties to retain legal representation and provides a broader range of disputes with access to what is often the cheaper and faster Small Claims process as compared to the Supreme Court.


If you are in the midst of a legal dispute, especially one that may be caught in the shift in monetary jurisdiction of Small Claims, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact anyone in our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

The recent decision of Ankenman Associates Architects Inc. v. 0981478, 2017 BCSC 333 raises some interesting issues surrounding the intersection of copyright law, construction law, and the foreclosure process.

In Ankenman, an architecture firm prepared copyrighted architectural plans for a project for the original developer. The original developer went bankrupt and failed to pay the firm’s fees. The firm filed a claim of builders lien against project lands for its unpaid fees.

A new developer bought the original developer’s property, including the project lands, in the course of foreclosure proceedings. The firm’s lien claim was removed from the project lands in the foreclosure process, without payment to the firm. The new developer hired a new architect who used the existing plans to finish the development.

The firm commenced a proceeding against the new developer seeking an order for damages for unauthorized use of the plans. The new developer argued that (a) it had an implied licence to use the plans, and (b) the firm was precluded from pursuing the matter because it did not raise the issue of ownership of the plans in the foreclosure proceedings.

On the first issue, the court noted that an architect who produces a set of plans, generally, retains copyright and ownership in them. The client acquires the right to use the drawings in consideration for payment, but does not (absent contrary agreement) obtain ownership. The court held that the right to use the plans was conditional upon full payment and, when the firm filed the lien claim against the lands, that signified that the plans could not be used until payment was made. The court held that, if the original developer had no right to use the plans, then no right to use the plans could be purchased by the new developer in the foreclosure proceedings.

On the second issue, the new developer essentially argued that the matter was res judicata meaning, in layman’s terms, that the issue of ownership of the plans could have been, should have been, or was actually determined in the foreclosure proceedings. The court did not accept this argument. The court held that, while the firm’s right to claim a builders lien against the lands was extinguished in the course foreclosure proceedings, the issue of ownership of the plans was not before the court. Thus, the removal of the lien claim did not preclude the firm from pursuing other remedies.

Ultimately, the court awarded the firm damages for copyright infringement in an amount equal to that which the new developer would have been required to pay to obtain the firm’s consent to use the plans.

For potential buyers of foreclosed property, this case highlights the importance of knowing precisely what it is that you are buying. In Ankenman, the outcome might have been different had the court order made in the foreclosure proceedings specified that ownership or copyright in the plans did not transfer to the buyer. Had the issue of ownership of the plans been squarely raised in the foreclosure proceedings, the new developer’s argument that the matter was res judicata (already determined) might have gained traction with the court.

For architects, engineers, and other consultants engaged in relation to a construction project, this case shows another way by which they may receive payment for their work as an alternative to their remedies under the Builders Lien Act, S.B.C. 1997, c. 45.


Mark Danielson is an Associate with Pushor Mitchell LLP. His litigation practice covers a number of areas including business disputes, construction law, builders liens, debtor/creditor claims, and property disputes. You may contact Mark at 250-869-1284 or danielson@pushormitchell.com.

The Okanagan Real Estate market has seen a rapid decrease in the rental vacancy rate and a corresponding increase in rent charged by Landlords. Many purchasers are looking to capitalize on high rental rates by purchasing a home with a Secondary Suite or Carriage House. In addition to the normal due diligence that a purchaser undertakes when purchasing a home, when purchasing a home with a Secondary Suite or a Carriage House purchasers should consider the following additional due diligence items and potential issues:

1. Get a Copy of the Lease Agreement and Review it

You will be bound by the Lease Agreement that was put in place by the previous owner. Tenants have considerable rights and protections under the Residential Tenancy Act. Provisions with respect to what rent increases are allowed and how the Landlord may end a tenancy are very restrictive and unforgiving once a Lease Agreement has been signed. A month to month term cannot be terminated unless done so in accordance with the Residential Tenancy Act. The Lease Agreement should be accompanied by a copy of the Condition Inspection Report.

Practical Tip: Lease Agreements can state that the Lease expires at the end of a specified period and that a Tenant must vacate the property at that time. This is the simplest way to remove an unruly Tenant; however, if you prefer to keep your tenant, you can enter into a new Lease Agreement on substantially different terms at the end of the specified period.

2. Review the Municipality’s File for the Property

Most municipalities, including the City of Kelowna, keep a record for each residential property within city limits. Generally, the file contains all previous Building Permits, Compliance Inspections, Bylaw Infractions and Demolition Orders issued with respect to a property. In some cases you will find documents evidencing restrictions on the use of the property, particularly with respect to Agricultural Land Reserve property. In short, the file will contain everything you require to confirm that any Secondary Suite or Carriage House present on the property was properly constructed with the required permits and is authorized by the municipality.

3. What should I do if there is no written Lease Agreement?

Although we always advise against verbal agreements, the reality is that many Landlords have a verbal agreement with their Tenant that serves as a Lease Agreement. The first thing you should consider is adding a condition to your Purchase Contract that requires the Landlord to have the Tenant execute a Lease Agreement prepared by you or your Lawyer handling the transaction. This is a simple process! The Government of British Columbia provides a sample Lease Agreement and Condition Inspection Report on their website that you can download here. If a written Lease Agreement is not possible, you should have the Tenant and Landlord acknowledge the current rental rate, the damage deposit, and that the start-of-tenancy condition inspection was completed and there were no issues to ensure that there are no surprises in that regard. Use a simple letter signed by the Tenant.

4. The Illegal Suite

An illegal Secondary Suite is one that was not constructed with the appropriate building permit. There is cause for concern if you are considering purchasing a property with an illegal Secondary Suite because it may not have been constructed to proper specifications for life safety, and may never have been inspected by a Municipal Building Official. The following practical issues can impact you financially:

a. The Municipality. Bylaw Infractions are enforced by the specific municipality that the property is situated in. Generally, all municipalities will fine a property owner that is offside of a Bylaw including the use of an Illegal Suite. However, if an Illegal Suite is a major problem and the current owner has not complied with a municipalities requirement to stop using an Illegal Suite a municipalities may revoke the occupancy permit for the Illegal Suite or the property.

b. Insurance. You need to be very cautious in this regard to ensure that you are insured against property damage and personal injury that both may be caused by and may occur to the Tenant in the Illegal Secondary Suite. Generally, if you fail to disclose material facts to your insurer or insurance broker, your insurance policy will be void and you will have no coverage.

c. Financing. If you plan to obtain a mortgage for your purchase your bank may take issue with an Illegal Suite depending on the status of the property. If the municipality has revoked the occupancy permit for the Illegal Suite or the property you may not be able to obtain any financing at all.

One issue you should address with your realtor as a term in the Purchase Contract is that no new Lease Agreements should be entered into prior to Completion without your written consent. A home with a Secondary Suite or Carriage House can be a great investment. Do your homework to ensure that your investment pays off.


This article is provided as information only; it should not be construed as legal advice. To request a topic for an Article or for more information, please contact Jesse Bernhardt at 250-869-1191 or bernhardt@pushormitchell.com. (more…)

The British Columbia government has recently announced a few measures that should be welcome news to local companies involved in grassroots mineral exploration in the Province:

  • it will be providing Geoscience BC with $10 million in funding over two years to further support its work in encouraging mineral, coal, and oil and gas exploration investment in the Province;
  • it is extending the Province’s mining flow-through share tax credit to December 31, 2017. The previous tax credit (which makes the Province more attractive to the exploration sector) expired December 31, 2016; and
  • it is proposing to amend the provincial Income Tax Act to make environmental studies and community consultations eligible for the Province’s mining exploration tax credit (“METC”).

The METC is for eligible corporations (and corporations that are active members of partnerships) conducting grassroots mineral exploration in B.C. To be eligible, you must incur qualified mining “exploration expenses” before January 1, 2020 for determining the existence, location, extent or quality of a mineral resource in B.C. The credit applies to exploration for all base and precious metals, coal and some industrial minerals.

“Exploration expenses” may include expenses incurred in the course of prospecting, carrying out geological surveys, trenching, digging test pits or preliminary sampling. Budget 2017 proposes to include expenses incurred after February 28, 2015 for environmental studies and community consultations incurred to obtain a right, licence or privilege for the purpose of determining the existence, location, extent or quality of a mineral resource in B.C.

The credit is calculated as 20% of qualified mining exploration expenses less the amount of any assistance received or receivable. Assistance includes reimbursements a taxpayer has received or is entitled to receive, as well as grants, subsidies, rebates and forgivable loans.

Further information on the METC is available by clicking the following link to the Mining Exploration Tax Credit (CIT 006) bulletin: CIT 006 Bulletin.

If you are interested in learning more about issuing flow-through shares, or if you have other questions concerning your company’s compliance with securities laws, please contact Keith Inman at inman@pushormitchell.com or by phone at 250-869-1195.


Keith Inman is a securities and M&A lawyer with broad experience in the capital markets. Keith regularly advises individuals and companies with respect to capital raises, securities reporting and compliance matters, purchases and sales of businesses and other corporate/commercial matters. Keith is qualified to practice law in both British Columbia and Alberta. You can reach Keith at 250-869-1195 or by email at inman@pushormitchell.com.

This short article will summarize some strategies for employers and employees in making wrongful dismissal actions less expensive. Litigation expenses continue to increase to the point that many cases are uneconomic for dismissed employees in that the potential legal expenses are greater than the potential recovery. Employers sometimes end up paying more for legal fees than they could have paid to settle the case.

Dismissed employees should do the following in preparation for their first discussion with a lawyer:

  1. Prepare a calculation of any amounts owing by the employer for wages, commissions, or vacation pay for the period prior to the termination;
  2. Prepare a three-year written summary of income from employment attaching income tax returns for the last three years of employment;
  3. Prepare a one-page chronology of the matters leading up to the termination;
  4. Consider and advise your lawyer as to any strong leads or potential for finding other employment;
  5. Put together a package of the following documents for your first meeting with your lawyer:
    • Resume;
    • Employment agreement or hiring letter and any revisions thereof;
    • Copies of any disciplinary letters if cause is being alleged; and
    • Termination letter.

After retaining a lawyer:

  1. Keep a comprehensive record of any and all attempts to find employment and any expenses incurred in the job search;
  2. Ask your lawyer about the potential for mediation early in the process;
  3. Keep any correspondence with your lawyer organized in a binder or file on your computer for easy access;
  4. If possible, avoid calls or emails with a single question unless they are very important. Usually it is best to save questions that are not urgent for a meeting or a comprehensive request for clarification of information. Lawyers usually have many cases on the go at the same time and it can be inefficient for the lawyer to respond to frequent communications as opposed to a set of questions.
  5. Avoid communication that is intended primarily to vent frustration with the process or perceived unreasonableness of your former employer.

Employers should do many of the same things indicated above. With respect to the potential for the employee to obtain other employment, it is very useful to keep an eye out in your industry for potential job openings for the dismissed employee. An employee has an obligation to mitigate damages by taking reasonable alternate employment. An employer can assist its lawyer, and potentially reduce exposure to damages, by assembling information on positions that might be available that the lawyer would not be aware of.

In early February, the Supreme Court of Canada declined to hear the appeal of a B.C. lower court decision dealing with retroactive child support. The decision is Brown v. Kucher 2016 BCCA 456.

The facts of this case are that the parents had been together for less than a year when the father terminated the relationship with the mother when she told him that she was pregnant, stating that he did not want the responsibility of a child at the time. Both parties already had children from previous relationships. There was no further direct contact between the parties until the mother made an application for child support in 2013 when their child was 18 years of age.

Originally, the Provincial Court judge ordered that the father pay retroactive child support in the amount of $70,328. This was the sum that the judge calculated would have been payable between 1995 and 2013 and accounted for 18 years of unpaid child support.

The father appealed the child support order to the B.C. Supreme Court where the Judge found that the trial judge erred in her analysis in that she:

“Accorded far too much deference to Ms. Kucher’s reasons for the considerable delay in making her application, improperly assessed Mr. Brown’s inaction as blameworthy conduct that wholly deprived him of any expectation of certainly failed to consider what benefits C.K. would receive from such an award at her age now and failed to properly consider the hardship caused by a retroactive award of over 18 years, given Mr. Brown’s financial position both past and present. The evidence in this case falls far short of supporting a retroactive award of this length.”

At para. 20 of the decision, 2015 BCSC 1258.

The decision was made to order retroactive child support going back three years prior to the date of both formal and effective notice as she found that this would impose less of a hardship on the father and was appropriate given the facts of the case. The father had also agreed to pay for the child’s full post-secondary education costs going forward.

The Court of Appeal has affirmed this decision of the B.C. Supreme Court judge and the Supreme Court of Canada did not give leave to hear the appeal so this is a final decision in this case.

The important point to take from this case is that if you are entitled to receive child support for the support of a child you ought not to sit on your hands and do nothing. There is an obligation upon you to seek relief from the Court if that support is not provided and to give the other parent notice that you are seeking child support as early as possible. If you do nothing and do not pursue the child support that your child is entitled to, a Court is not likely to order retroactive support going back more than three years except in the rarest of circumstances.

When you are appointed as an Attorney pursuant to a Power of Attorney, you are placed in a position of extreme trust. You, the Attorney, owe a fiduciary duty to the person who has appointed you (the “Donor” of the power). You must exercise your powers (legal, financial, land related – not health), diligently, honestly, with integrity and in good faith for the Donor’s benefit ONLY. You must act in the Donor’s best interests whilst taking into account their current wishes, known beliefs and values. To the extent reasonable, you must give priority to meeting the Donor’s personal care and health care needs (when managing their financial affairs). You also have a duty to foster the independence of the Donor and encourage the Donor’s involvement in any decision-making that affects them.

In addition to the above, the Attorney has a duty to account for his/her management of the Donor’s affairs. Keeping good records is key. Not providing a clear accounting of how you handled the Donor’s affairs can lead to abuse claims by potential beneficiaries of the Estate or other family members. The Attorney may be required to produce an Accounting while the Donor is alive by the Court, the Public Guardian and Trustee, an Alternate Attorney or the Donor’s Committee of the Estate and on the Donor’s death by the Executor or the beneficiaries of the Estate. So, there are several avenues to keep an Attorney on the right track and potential to challenge the Attorney if it is felt that they have been misusing their powers.

The Attorney may further be personally liable for any damages or loss suffered by the Donor as a result of the Attorney’s actions. That being said, provided the Attorney has acted honestly, reasonably and diligently, the Court may relieve the Attorney from personal liability.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills / Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

The “Big Hit” to a Strata Lot owner’s pocketbook occurs when the Strata Corporation’s Operating Fund and Contingency Reserve Fund are not sufficient to repair, maintain and replace Common Property. The Strata Corporation will be forced to issue a Special Levy to cover the cost of repairing, maintaining and replacing the Common Property. A Special Levy is simply a cash contribution required from each Strata Lot owner to repair, maintain and replace Common Property. Special Levies can be significant amounts if a major element of Common Property needs to be replaced.

Most buyers are familiar with the concept of strata ownership. The Strata Lot (your home) is exclusively owned, used, maintained and controlled by its owner. Common Property (hallways, elevators, building systems, roads, street lights, utility lines) is owned and used jointly by each of the owners of Strata Lots within the condominium building or townhouse complex and maintained and controlled by the Strata Corporation. In addition to the Strata Lot and Common Property, you receive an undivided interest in the Common Assets of the Strata Corporation.

Common Assets include the balance of the Strata Corporation’s Operating Fund and Contingency Reserve Fund, outstanding debts and personal property for the common use of the Strata Lot owners (pool table, couches and gym equipment). The Operating Fund and Contingency Reserve Fund are the Strata Corporations financial means that are available to repair, replace and maintain Common Property. Generally, the Operating Fund is used for expenses that usually occur either once a year or more often than once a year (snow removal, landscaping, carpet cleaning). The Contingency Reserve Fund is used for common expenses that usually occur less often than once a year or that do not usually occur (replacing the roof, siding or roads).

Strata fees payable by the Strata Lot owners are calculated on the basis of how much money is available in the Operating Fund and Contingency Reserve Fund.
Most prospective buyers make their buying decision on whether they like the condominium building or townhouse complex. Savvy buyers do their due diligence on the age and state of the Common Property and the Strata Corporations Operating Fund and Contingency Reserve Fund to ensure that sufficient funds are available to repair, maintain and replace the Common Property by reviewing the following:

  • The Strata Corporation’s Minute Book – The Minute Book will describe any repairs, maintenance or replacements to Common Property that are being discussed by the Strata Council and should include a copy of the Strata Corporation’s budget.
  • The Form B Information Certificate – The Information Certificate is provided directly from the Strata Corporation and describes the current balance of the Contingency Reserve Fund.
  • The Depreciation Report (the best option when available) – A Depreciation Report is an independent review of the Common Property that states whether the Strata Corporation has or will have sufficient funds to repair, maintain and replace Common Property as the different elements of Common Property reach the end of their expected service life.

Too often home buyers and home owners are surprised with a Special Levy for the repair, replacement or maintenance of their condominium building or townhouse complex. Do what you can to protect yourselves when making a major investment.


This article is provided as information only; it should not be construed as legal advice. For more information, please contact Jesse Bernhardt at 250-869-1191 or bernhardt@pushormitchell.com

When commencing a claim or a counterclaim, there is a temptation to throw every allegation at the wall just to see what sticks. This is often done in the hopes that, by increasing the number of allegations, a better outcome may be achieved than taking a more reasoned and focused approach.

While it is prudent and generally considered practical to preserve and pursue claims which can be supported on the facts, parties risk the scorn of the Court when they unreasonably commence or maintain claims which are not supported by the facts or, when confronted with clear evidence that an allegation is not supported, continue to maintain rather than withdraw such allegations.

The push and pull of vigorously pursuing a case, but not overplaying your hand, is reflected in the Code of Professional Conduct for BC which governs the conduct of lawyers. In the Code lawyers are reminded that their responsibility to their client includes “…endeavour[ing] by all fair and honourable means to obtain for a client the benefit of any and every remedy and defence that is authorized by law.” On the other hand, lawyers are also reminded that they “…should bear in mind that seldom are all the law and facts on the client’s side, and that audi alteram partem (hear the other side) is a safe rule to follow.”

In the recent case of Raven v. A&W Ranching Limited, 2016 BCSC 2009 (CanLII), the Plaintiff sought an order that the Defendant compensate him for assets sold, money loaned and services provided to the Defendant. The Defendant denied that money was owed for the sale of assets, denied that money was loaned and denied that services were provided at all or were provided gratuitously. The Defendant went further and counterclaimed for conversion (similar to theft) and trespass and sought the return of money it alleged the Plaintiff received that belonged to the Defendant.

Judgment was granted in favour of the Plaintiff and the counterclaim of the Defendant was dismissed. Based on the findings after trial, the Plaintiff sought costs of the trial on a special costs basis. Special costs are substantially higher than costs that a party is normally entitled to and generally entail a party being entitled to recover all reasonably incurred costs from the losing side including legal fees and disbursements.

In its separate reasons for judgment on costs, the Court noted the oft-cited notion that special costs are to address reprehensible, scandalous or outrageous conduct on the part of a litigant,; although case law tends to give wide meaning to the notion of reprehensible.

In respect of the Defendant’s claims, the Court observed, among other things, that:

  • broader allegations of conversion were maintained throughout and a more narrow allegation was only made in closing submissions;
  • the allegations of conversion were contrary to the Defendant’s own financial records and flew in the face of other evidence;
  • allegations against the reliability and biased nature of the Plaintiff’s bookkeeper were unfounded and untrue;
  • trespass was alleged, but no particulars were pled or advanced;
  • a claim for conversion of $18,000.00 of seed was not borne out.

In the result the Court found that the alleged acts of dishonesty were found to have been untrue and overshadowed all of the Plaintiff’s claims. Accordingly, the Defendant’s conduct was found to be either reprehensible, scandalous or outrageous and special costs were awarded as a result.

The lesson to be learned from Raven is that a party should not lightly make allegations of serious wrongdoing without having the facts and evidence to support those claims. Courts can and do slap down parties who accuse others of very serious and dishonest misconduct. This is especially so where the allegations are unfounded, made to threaten or intimidate or are otherwise pursuit without any reasonable prospect success.

Readers are well-cautioned that self-represented litigants are not immune to being sanctioned by a special costs order and that such litigants must tread just as carefully with serious allegations. Not every case or litigant can financially bear full legal representation, but all litigants should consider at least obtaining competent legal advice in formulating a strategy for formulating their claims and/or defences in any prospective or actual litigation.


Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

In the recent decision, Boer v Mikaloff, 2017 BCSC 21, the BC Supreme Court was faced with an interesting interpretation question under the relatively new Wills, Estate and Succession Act, SBC 2009, c 13 [WESA], which came into force March 31, 2014.

The “wills variation” provision, at section 60 of WESA, gives the children and spouse of a deceased person the ability to challenge deceased’s will on the basis that it does not make adequate provision for the spouse’s or children’s proper maintenance and support. Legally adopted children also have standing to make a claim under this section.

The question in this case was “[d]oes a child who is adopted by other parents after birth, but who is named as a beneficiary under his birth mother’s will, have standing to seek relief under [s. 60 of WESA]”.

Funt J. decided the adopted child in this circumstance does not have standing to bring a wills variation claim under s. 60 of WESA. In coming to this decision, Funt J. considered, among other things, the legal effect of adoption and the definition of a “child”. Funt J. held:

[32] … The plaintiff under these rules became the child of his adoptive parents. The fact that the plaintiff was named beneficiary under the will does not change the analysis.

[33] The result is that an adopted child does not have standing to bring a wills variation claim against his or her pre-adoption parent’s estate (except an adopted child falling within s. 3(3) of the Adoption Act). The result is harmonious with WESA’s provisions regarding the entitlement of adopted children on the intestacy of a preadoption parent. Under WESA, an adopted child of a pre-adoption parent has no entitlement to the estate of his or her pre-adoption parent who dies intestate, unless adopted by the spouse of a pre-adoption parent: ss. 3(2)(a) and 3(3) of WESA.

Accordingly, the law remains that our wills variation regime does not allow adopted children to make claims against the estate of their birth parents. Of course legally adopted children have standing to challenge their adopted parents’ estates under WESA.

Although this outcome is consistent with the current law of adoption, it is a tough pill to swallow for those adopted children who later develop relationships with their birth parents.

I am frequently asked by my family law clients if it is possible to resolve their family law disputes in a less adversarial and less formal way than the traditional litigation process. Fortunately there are several different out of court dispute resolution options available. For most clients, resolving a family law dispute through a trial should be considered only as a very last resort. This article will discuss one dispute resolution option: mediation.

Mediation is a dispute resolution process by which spouses attempt, with the assistance of an impartial, trained neutral third party to negotiate and formulate their own consensual resolution of matters at issue between them relating to their marriage, cohabitation, separation or divorce. While the mediator manages the process, the mediator retains no independent decision making power respecting the substantive outcome of the negotiation. If there is a settlement, it is one that both parties have reached by consensus, and not a result which has been imposed by the mediator. Unlike a trial judge, a mediator’s role is to guide and facilitate discussion, to assist the parties in creating their own solution to the problem. Mediators who are also experienced family law lawyers, may, at times make evaluative comments on the possible legal outcomes or solutions to encourage the parties to reach a resolution.

The model of mediation most often used in family law cases is “Interest Based Mediation”. Interest Based Mediation focusses on separating the people from the problem. The mediator helps the parties to see that the issue in dispute is a joint problem for which both parties need to work together to find an acceptable solution. Mediators redirect the parties so that they can focus on the parties’ interests, not their legal positions. Sometimes, spouses engaged in a family law dispute find themselves entrenched in their “bottom line” positon. This can make it difficult for the parties to recognize that there may be an alternative resolution which is satisfactory to both parties. At times communication between former spouses has become very difficult, tense or even hostile. By reframing the communication between the parties, the mediator identifies each party’s needs, desires, concerns, fears and hopes. Once this is done the mediator helps them to recognize where there may be common interests. Once the parties can see the common interests, the mediator helps them to consider solutions that both parties can accept.

Some of the benefits of resolving family law cases by mediation are:

  1. Mediation is less formal and is less stressful to the parties than the traditional court process;
  2. Mediation is usually less expensive than litigation and can usually be concluded more quickly than traditional litigation.
  3. Mediation allows the parties to have more control over the process. All issues can be addressed at mediation; the parties define the issues and set the agenda.
  4. Mediation is better for the children. Research shows that high conflict between separating parents hurts many children more than the separation itself. Parents often share the goal of reducing conflict so that they can focus on the needs of their children. Early mediation is a proven way of reducing stress and conflict for the benefit of the children, especially during the critical first year after separation.

I recently wrote an article discussing exactly what Probate is – basically the “validation” of the Court that the Executor of a Will is duly appointed and able to deal with the deceased’s assets pursuant to a valid Last Will and Testament of the deceased.

Probate fees in BC are approximately 1.4% of the GROSS estate. So, for every $100,000, probate fees are $1,400. If you have a $1,000,000 estate then probate fees are $14,000.

Another frequently asked question is “How long does Probate take?” This isn’t quite as easy to answer as there are a myriad of factors that can delay or lengthen the Probate process. Rather than an estimate, I like to call it a guesstimate. From the date of death, to the due diligence process (gathering information on the deceased’s financial affairs/landholdings) to the actual filing of Probate with the Court can take anywhere from a month at best, to several months (especially if the deceased has a large portfolio of assets). Once Probate is applied for with the Court, it usually takes around 2 months for the Court to Grant Probate. After Probate is granted, (say around 4 – 6 months after the date of death), there are then waiting periods before an Estate can be distributed to allow interested parties to make claims. Taxes also have to be dealt with and a final Clearance Certificate for the Estate should be issued by CRA. Estates with complex assets or disputes can take much longer to administer (several years).


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills / Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

In my previous articles, Choice of Law: When your Actions Revoke your Choice and Here, There or Anywhere: Where to Sue and be Sued, I discussed the interactions between attornment (submitting yourself to the authority of a particular Court’s jurisdiction), territorial competence, the forum of convenience and the law informing where litigation will proceed. These issues all intersected in the recent decision, Boyd v. Cook, 2016 BCCA 424 (CanLII).

The Plaintiffs were from Alberta and had lost significant funds invested in an Albertan mortgage investment company as a result of said funds being allegedly invested without authorization into a failed project in British Columbia.

The Plaintiffs had commenced a claim in Alberta, but did not bring it within the two year limitation period imposed by Alberta’s Limitation Act. As such, the claim was summarily dismissed for having missed the legislatively imposed deadline for commencing a claim and the dismissal was upheld on appeal.

The Plaintiffs then tried again by commencing essentially the same claim in BC. While not explained in the judgment, the claim was undoubtedly commenced in British Columbia as a result of the transition provisions of BC’s more recent Limitation Act which would have provided for a six year limitation period.

It is noted for the reader that limitation periods vary across Canada. In BC, many claims used to be governed by a six year limitation period, but all claims are now governed by a two year limitation period.

In respect to the Plaintiffs’ actions, the Defendant sought orders to have the Plaintiffs’ claim dismissed on the basis that it did not fall within the BC courts’ jurisdiction, to have the BC courts decline jurisdiction because it was not the more appropriate forum, to strike the claim for being res judicata (heard and determined previous) or to be struck as an abuse of process.

The Court of Appeal was inclined to disagree with the lower court that the case had any real and substantial connection to BC. That said, the decision turned on s. 4(1) of the Limitation Act which provides that if the law of another jurisdiction (Alberta), is to be applied the law of that jurisdiction must apply with respect to the applicable limitation periods. The Court reiterated a decision of the Supreme Court of Canada that stands for the principal that the law of the place where wrongdoing happened is the law that is to be applied.

The Court of Appeal ultimately found that, as a result of s. 4(1) of the Limitation Act, that the limitation law of Alberta was imported into the case. It flowed as a result that the issue of the limitation period had already been determined by the Albertan courts and the case was res judicata as a result.

Boyd again underlines how crucial it is for parties to make an early and informed decision as to where they will pursue their claims to ensure they are pursued in a timely manner and in the proper jurisdiction. Whether there may have been legs to the underlying claims of wrongful conduct, the manner in which litigation was pursued closed the door on having those claims substantively adjudicated.


Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute or potential legal dispute, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

Our five most popular Pushor Mitchell articles in 2016:

Facebook and Defamation: Potential Liability for Any Post and Any Friend’s Comments by Jeremy Burgess

The Law on Fiduciary Duty and Conflict of Interest by Brian Stephenson

Further Legislative Changes to the Taxation of Trusts by Melodie Lind

ICBC “Principal Operator”: All Car Owners and Drivers Need to Know This by Paul Mitchell, Q.C.

Advertising for Creditors of an Estate by Vanessa Dedominicis

Christmas background with hanging string lights

Although the efficacy of the program as well as the timing of the announcement has been called into question, on December 15, 2016 the British Columbia Provincial Government released information on the B.C. Home Owner Mortgage and Equity Partnership program (the “B.C. HOME Partnership program”) in an attempt to help first-time home buyers fund their down payments.

What is it?

The B.C. HOME Partnership program gives eligible home buyers who require a high-ratio, insured first mortgage for the purchase of their home access to a government loan (the “Program”). This loan has a 25-year term, is interest and payment free for the first 5 years, and is registered on title as a second mortgage.

The loan is designed to match home buyers’ personal down payment on a property, up to a maximum of 5% of the purchase price (with the maximum allowable purchase price being $750,000.00).

The Program is set to run from January 16, 2017 to March 31, 2020.

What criteria must be met?

The following is a summary of the qualifying criteria which must be met by all Program applicants who will hold registered and beneficial interests in the property in order to obtain available loan monies:

1. Timing. First, given some of the excitement around the monies being made available by the B.C. HOME Partnership program, the timing of upcoming transaction must be considered.

  • Although applications for the program will be accepted beginning January 16, 2017, any deals with a closing date of earlier than February 15, 2017 will not be considered.

2. Price. The property purchase price must be equal to or less than $750,000.00 (excluding taxes and fees).

3. High-ratio, insured mortgage pre-approval. Before applying for the program, applicants must be pre-approved for a high-ratio, insured mortgage.

  • A high-ratio mortgage is one in which the down payment is less than 20% of the purchase price (and more than 80% of the purchase price is being borrowed).
  • Insurance is required if a borrower has a high-ratio mortgage. The minimum down payment required in order to obtain mortgage insurance from the Canada Mortgage and Housing Corporation depends on the purchase price of the home:
    • if the purchase price is less than $500,000.00, the minimum down payment is 5%; and
    • if the purchase price is above $500,000.00, the minimum down payment is 5% of the first $500,000.00 and 10% of any amount over $500,000.00 (up to a maximum of $1,000,000.00).

4. Principal Residence. All individuals on title must live in the home as their principal residence for 5 years after the purchase (or less if the loan is repaid in full).

  • Note that the Program defines principal residence as “the home that is designated as the owner’s principal residence for tax purposes and where all persons registered on title live permanently (for at least 6 months per year) in a self-contained unit with access to all living facilities at all times to conduct their daily activities (such as: cooking, sleeping and receiving mail) and is the residential address used by the persons registered on title on documentation including but not limited to identification, vehicle registration and income tax returns.”

5. First Time Home Buyers. Applicants must be a first time home buyers who have never owned an interest in a principal residence anywhere in the world at any time and have never before received a first time homebuyers’ exemption or refund.

6. Income. The total annual household income for all individuals on title must not exceed $150,000.00.

7. Residency. Must have resided in British Columbia for the past 12 months prior to applying for the program.

8. Location. The subject property must be located in British Columbia.

9. Citizenship. Program applicants must be Canadian citizens or permanent residents that have resided in Canada for at least 5 years.

10. Possession. This criteria in particular could be a trap for applicants and should be carefully considered. Under the Program, purchasers are required to take possession of the purchased property within 30 days of closing and must move in within 6 months.

Administration and Repayment

A Home Buyer’s Package will be delivered by the B.C. HOME Partnership program to those who meet the above referenced criteria and have had their applications accepted. What exactly is contained within these information packages is unknown at this time but the content is described as being able to guide home buyers, and the real estate professionals assisting them, through the remainder of the loan-obtaining process.

With respect to repayment of the Program loan, the first 5 years is interest and payment free, and the home owner may repay the loan in full at any time with no penalty. At Year 6 however, interest will start accruing and principal and interest payments will have to be made, amortized over the remaining 20 years. The interest rate will be reset at the Royal Bank of Canada Prime Rate plus 0.5% at each of the 10th, 15th, and 20th anniversary dates, so options with respect to re-financing after 5 years will likely be a conversation many clients will want to have.

Additional Considerations

It is recommended that applicants be encouraged to speak with their mortgage broker or bank representative to first determine whether they will be allowed by their lender to take advantage of the Program.

Why? Because the Program loans will be registered on title as a second mortgage, which traditionally lenders do not permit on mortgaged properties. As such, applicants should ensure that their lender will agree to having a second mortgage registered in favour of the British Columbia government before beginning the application process.

The recent tightening of mortgage rules also acts to raise a few questions. For example, the new stress test for loan eligibility sets a debt ceiling of no more than 39% of household income being necessary to cover home-carrying costs such as mortgage payments, heat and taxes. While the Program loans are designed to be interest and payment free for the first 5 years, and presumably would not impact the calculation of home-carrying costs during such time, once Year 6 hits, home owners could have their options reduced when it comes to re-financing due to the emergence of a new debt obligation.


If you have any questions about the Program, please feel free to send your questions to Brian Stephenson at stephenson@pushormitchell.com.

Deciding to become a publicly traded company is an extremely important decision that must be carefully considered by management of a company. A company must understand that going public entails complying with the many requirements imposed by securities regulatory authorities both during the process of going public and after it has been publically listed. This bulletin will discuss, at a very high-level some of these requirements and obligations as they pertain to an initial public offering (“IPO”) for listing on the TSX Venture Exchange (“TSXV” or the “Exchange”). Readers should note that an IPO is only one of the several ways in which a company can become publically listed.

Preliminary Considerations

A company will generally decide to go public as a way to enhance its public profile, access capital markets, and provide liquidity to shareholders. In addition, going public can have many other advantages, such as:

  • Enhancing the ability to borrow funds, as the issuance of equity generally improves debt-to-equity ratios;
  • A better offering price arises from public issue, as the issuance of equity through private placements is often at a discount due to equity resale restrictions;
  • Providing a means for valuing the company through the market for its listed shares; and
  • Facilitating an issuance of stock options, stock appreciation rights, etc. as an incentive for management and employees.

There are also disadvantages to going public. Securities regulatory authorities and stock exchanges impose many obligations on public companies, which will have an impact on the amount of resources that will be dedicated to compliance and governance matters. A public offering will require the retention of lawyers, auditors and investment bankers as well as other technical consultants. In addition, administration costs for printing the prospectus, “road shows” and listing fees can be substantial. Companies looking at going public should weigh whether the costs of going and staying public are justifiable in the context of their specific business. Other disadvantages include the following:

  • The potential loss of control for founders of the company;
  • Continuous disclosure requirements may result in a loss of privacy;
  • Enhanced responsibilities arise for the board of directors, and additional controls are placed on management;
  • An increase in shareholder expectations as to profitability and success of the company;
  • Possible market indifference, resulting in “thin trading” of the company’s securities; and
  • Additional restrictions, such as escrow restrictions, may be placed on share disposal.

The IPO Process — the Securities Regulatory Authorities

An initial public offering is one of a number of ways to obtain a listing on the TSXV, but before endeavouring into the process of an IPO, a company must ensure its own internal governance ise ready for an IPO. This includes a review of the company’s minute books to ensure the validity of such matters as prior issuances of securities and the election of directors, and to determine if the articles and by-laws are suitable for a public company, with respect to such matters as transfer or issuance restrictions, composition of the board and quorum thresholds. Additionally, a company should review its material agreements (including banking or credit facilities) to confirm if there are any prohibitions or consent requirements that result from those agreements.

A company’s business plan will be scrutinized by its underwriters and potential investors and it will become an important component of the company’s marketing efforts. Due attention should be paid to whether the company’s business plan is realistic (will it withstand the scrutiny of outsiders?), understandable, well written and in plain language.

After deciding to pursue an IPO, a company must generally file both a preliminary prospectus and a final prospectus for approval from the securities regulatory authority in each province in which it (or its agent/underwriter) intends to solicit offers to purchase its securities. The prospectuses must contain full, true, and plain disclosure of all information concerning the company and the offered securities that can reasonably be expected to influence a prospective investor’s decision to purchase the company’s securities or the market price of those securities. This information will range in specificity, from general information regarding the company and its business, to specific audited financial statements.

Apart from the prospectuses, additional filings/requirements include (among others) those listed below:

  • copies of all material contracts entered into, other than in the ordinary course of business. Material contracts include those contracts which can be reasonably regarded to be material to a prospective investor;
  • the directors and officers of a prospective public company must file a prescribed form which authorizes the collection of the directors’ and officers’ personal information, as well as a “personal information form” to permit the relevant stock exchanges to complete background checks;
  • certain shareholders, including directors, officers, and significant shareholders may be required to place their shares in escrow for a defined period of time. Securities regulatory authorities and stock exchanges may require other shareholders to also place their shares in escrow. Accordingly, the company may be required to retain an escrow agent. The escrow requirements ensure that these shareholders have a long term interest in the viability of the company; and
  • the company will need to retain a transfer agent to act as registrar and transfer agent for the company’s shares.

After a receipt is issued upon filing the preliminary prospectus and other requisite documents, the company, its dealers or underwriters may begin to distribute the preliminary prospectus and solicit interest from potential investors in accordance with applicable securities laws.

The IPO Process — the Stock Exchange

Applications to list on the TSXV are made shortly after or concurrently with the filing of the preliminary prospectus. Approval of the application will be subject to such additional requirements as the TSXV may impose.

To gain a listing, a company must generally meet the initial listing requirements of the Exchange. The Exchange divides issuers into Tier 1 or Tier 2 categories according to the requirements, with the latter Tier being subject to more restrictive requirements. The TSXV also divides issuers into five subcategories according to industry:
technology/industrial, mining, oil and gas, real estate, and research and development. Each tier and subcategory will have different initial listing requirements based on a variety of criteria, some of which include the following:

  • The amount of net tangible assets;
  • Past and projected revenues;
  • Past and projected expenditures on research and development spending;
  • Amount of working capital; and
  • Amount of proven reserves or properties.

Depending on the amount of working capital it has, a technology/industrial company may be required to file a management plan detailing the company’s business development for the next 24 months, including evidence that the company’s product, service or technology is sufficiently developed and that there is reasonable expectation that there will be earnings from the product, service or technology within the next 24 months.

Additionally, a company must have issued a minimum number of securities of a minimum market value for public distribution. These threshold numbers are imposed by the Exchange to ensure market liquidity.

The Exchange also imposes requirements on the company’s management and control group. A listed company must have at least three directors, one of which must have expertise in the area of the company’s actual or proposed business, and another of which must have had favourable experience in operating and managing a public company. At least two directors must not be employees, senior officers, control persons, or management consultants. All members of management should be free of any history of past criminal behaviour, fraud, breach of trust, or securities violations. Except in limited circumstances, a listed company must have a chief executive officer (“CEO”) and a chief financial officer (“CFO”); the CEO and the CFO cannot be the same person.

Further, a company must establish an audit committee composed of at least three directors. After the IPO, audit committee members cannot be employees, control persons, or officers of the company, or have immediate family members that are employees, control persons, or officers of the company. The audit committee must review the financial statements, management discussion and analysis of the financial statements, and any press releases concerning earnings of the issuer before they are approved by the board of directors and disseminated to the public.

A company may also need to have sponsorship of their listing application. The sponsor will be a member of the Exchange, and will assist the Exchange in evaluating the financial strength of the company, its business plan, and the suitability of its management and control group. The sponsor is typically the company’s lead underwriter in its IPO.

After the IPO — Ongoing Obligations

A company must meet ongoing disclosure requirements after they become reporting issuers. The securities regulatory authorities and the TSXV impose continuous disclosure requirements that generally require annual filings of a variety of forms and documents.

Forms and documents required by securities regulatory authorities must be filed where the company has filed a prospectus. Some of the required forms and documents include as follows:

  • Audited annual financial statements;
  • CEO and CFO certification of the financial statements, and a statement certifying that they have reviewed the company’s internal financial disclosure procedures, ensured that said disclosure procedures have been implemented, and reviewed the company’s financial disclosure;
  • Management Discussion and Analysis accompanying the annual and interim financial statements, consisting of management’s narrative explanation of company performance, financial condition, and future prospects;
  • In certain instances, Annual Information Forms detailing material information about the company and its business at a point in time, including discussion of historical and future development of the company, its operations and prospects, its risks and other external factors that impact the company specifically;
  • Annual meetings of security holders, including the distribution to such holders of an information circular regarding the election of directors, the appointment of auditors and any other “special” business, and detailed disclosure of all executives’ individual compensation amounts and the company’s corporate governance practices;
  • Material change reports in the form prescribed by securities laws. A “material change” occurs when a change in the business, operations, or capital of the company is reasonably expected to have a significant effect on the market price of any of the securities of the company, or when a decision to implement such a change is made by the management of the company;
  • Periodic press releases informing the public of business developments of the company, including changes in the company’s corporate structure, changes of its auditor, and other material changes;
  • Insider trading reports by directors, officers and significant security holders; and
  • All material documents affecting the rights and obligations of security holders, including material contracts.

Conclusion

The decision to take a company public is often one of the key decisions management will need to make in the lifecycle of a company. Companies considering a going public transaction are advised to retain a team of knowledgeable accountants, lawyers and investment bankers early on in the process. Pushor Mitchell has the necessary experience to guide companies through this process and we would encourage you to contact us if your business is considering going public.


Keith Inman is a securities and M&A lawyer with broad experience in the capital markets. Keith regularly advises individuals and companies with respect to securities reporting and compliance matters, purchases and sales of businesses and other corporate/commercial matters. You can reach Keith at 250-869-1195 or by email at inman@pushormitchell.com

When parents separate it is fairly common for the parties to experience some level of conflict during the transition period. Conflict can range from one parent belittling the other parent’s values to verbal attacks or in some rare cases even threats of violence.

Child psychologists have observed that the intensity level of parental conflict is a significant factor in children’s adjustment after separation or divorce. Parents who co-operate after they separate increase the likelihood that their children will have close relationships with both parents and will adjust successfully after separation. However if the children witness intense parental conflict over an extended time frame, there is a real risk of significant damage to children.

Whatever ill feelings separated spouses may have for one another, parents universally love and care for their children and do not want to cause them harm. Unfortunately some separated parents find themselves in a cycle of conflict that is difficult for them to break even once they recognize it is damaging to their children. Here are some strategies I suggest to my clients in high conflict parenting situations to consider since they may minimize the amount of conflict the children observe between their parents:

  • Minimal or no direct contact between parents, which allows both parents some space to “disengage” from the ongoing cycle of conflict
  • a highly detailed parenting schedule which leaves little room for argument; the schedule should cover who drives the children to the drop off location and at what time, as well as what should happen in case of an emergency.
  • All communication between parents is made through a “communication book” which travels with the children. The communication book includes only business – like notes regarding health, education, welfare of the children.
  • Use a neutral place for exchange of children like a school, daycare, or even a coffee shop. If it is necessary to drop the children at the other parents home, the children should be dropped off curbside while the parent waits in the car.
  • Establish accepted routines for bedtime and screen time at both parents’ homes.
  • Any changes to the parenting schedule will only be made by consent and in writing.
  • Establish daily skype/phone contact time for the children to call the other parent; ensure the child has privacy to conduct the call.

In addition to these strategies, parents should consider enroll in a parenting education course. The well-respected course called Parenting after Separation is available for free through the local court registry or accessible online using the following link: Parenting After Separation.

Pets are like family. How do we provide for them after we are gone? How do we ensure that they are taken care of? There are several clauses that can be added to your Will to ensure that your pets do not go without the care they need. For example:

“Direction regarding pets

If my wife, X does not survive me, then I direct my Trustees to deliver my two dogs, RUFUS and WHISKEY, if RUFUS and WHISKEY are alive at the date of my death, together with any and all related equipment (my “Dogs”), as soon as possible after my death to any of my family members willing to take them.  If my family members are unwilling to take my Dogs, then I direct my Trustees to give my Dogs to Y, if she survives me.”

Or some people prefer the following, depending on the number of pets they have, and depending on their willingness or ability to provide maintenance / compensation for the ongoing care of their pets:

“Bequest for maintenance of animals

I direct my Trustees to give any pets that I may own as at the date of my death, together with any equipment used in connection with my pets (collectively referred to as my “Pets”), to my mother, X, and my father, Y, or the survivor of them, for their own use absolutely.  If both of X and Y do not survive me, or survive me but are unwilling or unable to take my Pets, then I direct my Trustees to give my Pets to my friend, Z, if she survives me, for her own use absolutely.  In this regard and provided that Z agrees to receive and care for my Pets, I direct my Trustees to give the additional sum of $20,000.00 to Z to assist her with the maintenance and welfare of my Pets for as long as they shall live. Upon the death of my Pets, it is my wish that whatever sum remains from this cash gift, if any shall be retained by Z, for her own use absolutely. I declare that the receipt by Z of each of my Pets and cash gift, together with her agreement to care for my Pets for the duration of their lives, shall be a sufficient discharge to my Trustees who need not take further steps with respect to same. If Z does not survive me, or survives me but is unwilling or unable to receive and care for my Pets, then I direct my Trustees, in their absolute discretion, to find a suitable home for my Pets. In this regard, I direct my Trustees to take whatever steps they deem appropriate, in their sole discretion, to find a good home and caregiver(s) for each Pet that I may own as at the date of my death with a private individual or individuals and / or a family, and not in a boarding kennel.  The home(s) and caregiver(s) so selected should be ones with proper facilities so that my Pets can lead happy and healthy lives, and should be ones where my Pets shall have the kind of warm human companionship to which they are currently accustomed.  If I do not leave any Pets as at the date of my death, then the said bequests shall lapse and not be of any further force or effect.”

There are a myriad of different clauses that can be drafted depending on the circumstances of each situation. The above are merely examples.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com  Vanessa practices in the area of Wills/Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

I recently heard the litigation process in parenting disputes described by a mediator as “the dark side.” I generally agree.

The Family Law Act, our relatively new legislation in British Columbia has gotten rid of conflict-laden terms like “custody” and “access” and replaces them with a new model of parenting after separation which prioritizes a child’s entitlement to proper parenting and meaningful time with each parent over a parent’s right to control the child’s upbringing and have a schedule of contact with the child.

The Family Law Act also focuses on the resolution of family law problems by other means other than going to court. The legislation gives equal emphasis to agreements made out of court and court orders, and provides better support for out of court negotiations. One way it does this is by making complete disclosure mandatory in all cases and by imposing penalties for failures to make disclosure which result in the court setting aside an agreement.

The legislation also gives Judges new authority to refer parties to counselling and to out-of-court dispute resolution services like counselling and mediation. The court can appoint a parenting coordinator to manage the implementation of orders and agreements involving children, even if both parties do not agree.

At the end of the day, parents know their children better than a Judge does or ever could. These decisions are best made by the parents themselves. If you cannot come to a consensus, I highly recommend that you engage the services of collaborative professionals; lawyers focused on out of court resolution, mediators, parenting coordinators, counsellors, doctors or child specialist who can weigh in and assist you to coming to an agreement.

The first reason to avoid parenting disputes in court is the extreme risk for both parties. It is very difficult to predict what a Judge will decide. There have been many circumstances where Judges have decided in ways that I would never have predicted. Even if the agreement you come to with your former spouse feels like a compromise, you have had some power and say in the process.

The second and perhaps more important reason is that our court system is set up in an adversarial model which does not facilitate and foster an ongoing relationship between the parties. When you have minor children together you need to have an ongoing relationship in some capacity. You will be co-parents throughout the lives of your children. It is very rare that I see that litigation around parenting issues improves the relationship between the parties, most of the time it is damaging to that already fractured co-parenting relationship.

The Supreme Court of Canada recently released a new decision that defines the timeline for criminal trials in Canada. R. v. Jordan, 2016 SCC 27, completely reforms the time limits placed on the State for an accused person to have their trial within a reasonable time.

Prior to this decision, s. 11(b) of the Canadian Charter of Rights and Freedoms dictated that an accused person must have their trial within a reasonable time; this amount of time was not defined. It was up to the trial judge in each case to determine what “reasonable” meant. For example, in remote jurisdictions with only a few circuit courts a year, it generally takes much longer to get to trial than in a city center. In addition, each province has their own system in place for ensuring that the earliest possible trial dates are provided. In some cities, a trial within one year of being charged could be considered reasonable, while in others, two years could be reasonable.

Now with the decision in Jordan, the presumptive ceiling going forward is that trials within the Provincial Court should be heard within 18 months of the date the Information was sworn, and trials within Supreme Court should be heard within 30 months to be deemed reasonable. Delay attributable to the accused, and certain extraordinary and unavoidable circumstances, can extend this timeline.

Of note, the Supreme Court of Canada split 5-4 on this decision.

For a link to the full decision, see: R v. Jordan.

Arbitration is a process for resolving disputes outside of the courtroom. Parties may, by consent, submit disputes to arbitration for determination by an independent decision maker known as an arbitrator. When used appropriately, arbitration may be a cheaper, faster, and generally preferable alternative to traditional courtroom litigation.

Many construction contracts have provisions requiring the parties to submit disputes arising under the contract to arbitration instead of court. However, the existence of an arbitration clause in a construction contract may cause issues for builders lien claimants by delaying and increasing the cost of lien enforcement proceedings.

Section 15 of the Arbitration Act, R.S.B.C. 1996, c. 55 (the “Arbitration Act”) allows a party to such a contract to apply to court to stay (meaning “postpone”) the court action in favour of arbitration.

Section 26 of the Builders Lien Act, S.B.C. 1997, c. 45 (the “Builders Lien Act”) provides that a builders lien may only be enforced by commencement of an action in the Supreme Court of British Columbia.

At first glance, the relationship between these statutes is problematic because a builders lien may not be enforced through the arbitration process. The question of whether arbitration and lien enforcement procedures are compatible often arises in Canadian courts. The answer to this question, at least in British Columbia, is “yes”.

In Tylon Steepe Homes Ltd. v. Pont, 2009 BCSC 103 (“Tylon Steepe”), the British Columbia Supreme Court clarified the procedure which applies when a lien enforcement action is stayed in favour of arbitration.

In that case, a lien claimant argued that an arbitration provision contravened section 42(2) of the Builders Lien Act by infringing upon the lien enforcement remedies under the Act. That section precludes parties from making an agreement that the Builders Lien Act will not apply to their contract, by rendering any such agreement void.

The Court did not agree that the arbitration provision interfered with lien enforcement rights. The Court noted that a lien claimant could pursue its lien enforcement rights in Court after the arbitration had concluded. In other words, arbitrator could determine the amount of the lien claim, and the Court could then order a builders lien for that amount assuming the lien was otherwise valid.

While arbitration and lien enforcement procedures are not inconsistent, the relationship between the Arbitration Act and the Builders Lien Act is somewhat problematic. It is questionable whether a lien enforcement process which requires a claimant to litigate its claim in separate forums is desirable. Then again, if parties agree to submit their disputes to arbitration they should be presumed to know the consequences of such an agreement. While the inclusion of an arbitration clause undoubtedly makes sense in some construction contracts, we often see them included in contracts without much thought as to whether they are necessary or desirable in the circumstances. If a contractor is presented with a contract which contains an arbitration clause, he or she should give serious thought this question.

The British Columbia Law Institute is presently reviewing the Builders Lien Act and will report its recommended changes to the Provincial Government. It will be interesting to see if those recommendations will address the relationship between arbitration and lien enforcement procedures.

Oftentimes, my clients will appoint joint Executors in their Wills. This means they are appointing two people to jointly administer their assets and apply for Probate. Usually it is their two adult children. They want to treat both children fairly and make sure that both are “included” and “know what’s going on”. These are totally valid reasons.

What happens though, when one co-Executor has different views to the other? What happens if these co-Executors are in different Provinces or perhaps don’t get along that well, if at all?

Co-Executors are supposed to make decisions jointly regarding the Estate assets. Neither has the legal right to act alone. Further, both co-Executors are “on the hook” to account to any other beneficiaries as well, so both need to be cognizant of their duties in relation to the assets of the deceased and each has a duty to protect and administer the Estate.

The Estate bank account should be set up so that all cheques or withdrawals need the signatures of both co-Executors. All Estate moneys should be put through there – this makes the Accounting much easier and allows for transparency.


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com Vanessa practices in the area of Wills/ Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

Effective November 28, 2016, the Societies Act [SBC 2015] Chapter 18 (the “Act”) comes into force and governs how societies are formed and operate in British Columbia.

Societies are not-for-profit corporations and those existing prior to the Act coming into force will have until November 28, 2018 (2 years) to file a transition to be in compliance with the Act. A significant administrative update is the creation of Societies Online, a web-based application that allows for the online filing of most of the transactions and documents for societies.

Below are links to further information on the new Act and how to transition your society; however, should you have any questions please do not hesitate to contact the lawyers at Pushor Mitchell LLP.

Government Resources

This article explains how ICBC third party liability works, and discusses the factors to consider in choosing how much coverage to buy.

Third Party Liability Coverage protects you when you’re at fault in a crash, and another motorist makes a claim against you.

If you’re found responsible for a crash, you could be liable for damages, lost income, care expenses and more – for both the other driver, and all of the passengers in your car, and the other car.

Your Basic Autoplan includes only up to $200,000 in Third Party Liability coverage.

This is just not enough coverage.

The costs of a crash are very often much higher – and you would be responsible for the difference. It’s simple: the lower your coverage, the higher your risk. Claims can often exceed $1 million when the injuries are severe, or the injured person has substantial loss of income.

As a personal injury lawyer I have been involved in many multimillion dollar claims. I have seen many cases where liability coverage is not enough to cover the value of all of the claims in the accident. If the amount of the claim exceeds your “third party liability coverage”, you will be personally on the hook for the excess. You could lose your home, your business……everything. If the vehicle involved is a company vehicle, then the company would be on the hook for the excess.

That is why it is imperative that you purchase ICBC Extended Third Party Liability coverage.

You can increase your ICBC third party liability coverage by purchasing optional coverage, up to a limit of $5 million.

How does Extended Third Party Liability coverage help you?

Extending your Third Party Liability protects you from having to pay costs that go above your Basic Autoplan limit.

Extended Third Party Liability means:

  • you’ll be protected against paying for injury and damage costs up to the limit of your coverage
  • the equity in your home or other assets won’t be at risk
  • you get peace of mind, for a relatively small percentage of your overall premium

You can also purchase excess coverage over the ICBC 5 million limit, from a private insurance carrier.

I carry total coverage of 10 million… the maximum optional ICBC coverage of 5 million, plus another policy from a private carrier that covers damages from 5 to 10 million. The private coverage I have from 5 to 10 million is called an “umbrella policy”, as it covers me for not just vehicles, but also boats, and anything I may do that causes harm to another person.

Get details from your insurance broker.

At the very least, I recommend that everyone get the maximum optional ICBC Third Party Liability Coverage of 5 million.

I RECOMMEND THOSE WITH SUBSTANTIAL ASSETS OBTAIN THE MAXIMUM COVERAGE OF $10 MILLION. 5 million through ICBC, and an additional 5 million from a private carrier.

The costs vary depending on your age, vehicle, and driving record, but are surprisingly cheap, given you are protecting all of your assets. It is a small price to pay for peace of mind.

ICBC Quick links
Autoplan Optional coverage booklet
Autoplan insurance brochure (For policies with an effective date before September 11, 2016.)
Autoplan insurance brochure (For policies with an effective date on or after September 11, 2016.)


Paul Mitchell, Q.C. is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, and other catastrophic injury claims. He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company. For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com

Canada’s homicide rates increased by 15% in 2015. The current number of homicides in Canada is 1.68 per 100,000 people, the highest rate since 2011. The total number of reported homicides in 2015 was 604, 83 more than 2014.

Of all the provinces, Saskatchewan had the highest homicide rate of 3.79 homicides per 100,000 people. Manitoba had 3.63 homicides per 100,000 people, making it the second highest province in the country. Alberta followed at 3.17. Surprisingly, the lowest provincial rates in 2015 were recorded in Newfoundland and Labrador. Newfoundland had a homicide rate of .57 per 100,000.

Even though Aboriginal people only account for 5% of the Canadian population, Aboriginal persons were reported in 25% of the homicides in 2015.

In 2013, Canada hit the lowest rates since 1966 of 505 homicides; nearly one hundred less than 2015.

For the full report from Statistics Canada, see Homicide in Canada, 2015

When parents separate with dependent children both parents have a legal obligation to continue to financially support their children to the best of their abilities.

The legal obligation is met through child support which is set out in the Federal Child Support Guidelines. The child support obligation comes in two categories. The first one is a monthly amount that is set according to the payor parent’s income.

The second child support obligation is in section 7 of the Child Support Guidelines and can often be a source of much confusion.

Section 7 of the Child Support Guidelines deals with “special and extraordinary expenses” which are as follows:

  • child care costs to allow the parent who looks after the child to go to work or school;
  • any portion of medical and dental insurance premiums a parent pays to cover their child;
  • a child’s other healthcare expenses, such as orthodontics, prescriptions, eyeglasses, counselling, or hearing aids (provided these costs exceed $100 annually);
  • expenses for school or educational programs to meet the child’s particular needs, such as tutors or private school fees (if they are found to be reasonable and necessary);
  • expenses for post-secondary education; and
  • extraordinary expenses for the child’s extracurricular activities.

The first common misconception is that frequently parents split these costs equally between them when the legislation says that these expenses are to be shared by the parents in proportion to their respective incomes. If your incomes are the same, then you would divide these costs equally. Otherwise, the higher income earner should be paying a larger portion.

You and your former spouse can come to whatever agreement that you like for sharing these expenses but if you are choosing to divide the expenses differently then it must be in your child’s best interests and you should have a written agreement to clarify your intentions.

The second common misconception comes over what qualifies as an “extraordinary expense” for extracurricular activities. Whether an extracurricular expense is “extraordinary” can sometimes be a source of dispute.

These are activities that have an unusually high cost to the extent that the parent enrolling the child cannot be expected to pay for the entire cost on their own. Generally these are activities that a child is playing at a high level and involve a correspondingly high cost of coaching or possibly equipment and travel.

The legislation says that these costs are only shared if they are necessary when taking into account the child’s best interests and reasonable in the circumstances.

Factors that a Court will consider on whether a cost is necessary are:

  • Does your child have special needs or talents?
  • Was your child involved in this activity before you separated from your spouse?
  • Is the activity in your child’s best interests?

When considering whether a cost is reasonable, some of the factors a Court may consider are:

  • What is the overall expense and what are the financial means of the parties?
  • What was the spending pattern of the family before the parents separated and was this expense a priority for them previously?

The best case scenario is always for you and your spouse to come to an agreement on which extracurricular activities you wish to enroll your children in and how you will share that cost.

An insolvent estate is not necessarily a bankrupt estate.

An insolvent estate is an estate where there are assets, but unfortunately there are more debts than there are assets to pay them off. Being an executor is a tough job at the best of times. If you are an executor or administrator of an insolent estate that carries a lot of debt, the risks are higher. Creditors may sue the estate for what is owed. As executor/administrator you must follow the hierarchy for which creditors get paid out first. If you do not, you could potentially be sued by a disgruntled creditor.

An executor may want to consider renouncing at the outset – once you start, and have “intermeddled” in an estate it is then very difficult, and sometimes not possible to renounce, if you have begun dealing with the deceased’s affairs.

Another potential option, instead of administering the estate yourself, is to apply to Court for permission to have a Trustee in Bankruptcy appointed under the Bankruptcy and Insolvency Act. The Trustee in Bankruptcy would then assume responsibility for distributing the assets among the creditors.

If you do proceed as executor of an insolvent estate, at the end of the process you must prepare a full accounting of your time as executor, and ask the creditors to release you from any claims. The better option is apply to the Court for a Release as executor – as it is the Court formally discharging the executor from their role. This protects the executor from future claims. It is not without cost though, and in an insolvent estate, the executor is usually left footing the bill for this Court process to get themselves released from any liability in connection with the estate and its creditors at the end of the day.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills/ Estates and Real Estate at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

The Franchises Act will come into force on February 1, 2017, making British Columbia the sixth Province to enact such legislation (joining Alberta, Manitoba, Ontario, New Brunswick and Prince Edward Island).

The main consequence of the Franchises Act is that franchisors must provide disclosure to franchisees at least 14 days before entering into a franchise agreement. The Franchise Disclosure Document provided by franchisors must disclose all material facts pertaining to the franchise, including but not limited to:

  • financial statements of the franchisor,
  • business information about the franchisor and its directors;
  • lists of franchisees and former franchisees; and
  • a summary of the franchisee’s costs and obligations.

A Franchise Disclosure Document is also required when renewing an existing franchise agreement on or after February 1, 2017.

Failure to provide a Franchise Disclosure Document may grant franchisees a right to rescind the franchise agreement within 60 days after receiving a Franchise Disclosure Document or within two years if the franchisor never provides a Franchise Disclosure Document.

We are happy to help franchisors prepare their Franchise Disclosure Document. Please contact Andrew or another member of our Franchising Law Team.

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Andrew Brunton is a business and real estate lawyer at Pushor Mitchell LLP who acts for both franchisors and franchisees. You can reach Andrew at 250-869-1135 or brunton@pushormitchell.com. For more information on our Franchising Law Team, please visit http://www.pushormitchell.com/service/franchising

This article deals with the issues surrounding the definition of “Principal Operator” under an ICBC insurance policy, and the risks involved by not naming the correct person.

When you insure your car with ICBC, the Autoplan agent requires you to designate or name who the “ principal operator” of the car will be. There are potentially serious ramifications if the incorrect person is named. Here is what every driver and registered owner needs to know about this issue.

What is a “principal operator”?

The principal operator is the person who will be operating the vehicle the majority of the time during the term of the ICBC policy. In most cases, this will be the registered owner of the vehicle. In other cases it may be someone else, such a spouse, child, other family member, or employee.

Why does ICBC want to know who the “principal operator “ is?

ICBC determines your insurance premiums using a number of factors, including age, and history of safe driving. Younger or less experienced drivers, and those with a previous history of causing accidents, will not get the same discounts as long-term safe drivers with no history of causing accidents, or being charged with few driving offences. Correctly identifying the principal operator each time there is an insurance renewal allows ICBC to be more accurate in assessing the potential risk of accidents with each vehicle, and be able to charge the correct premium accordingly.

When do I have to Declare Who the Principal Operator Is?

You must declare the principal operator every time you renew your insurance.

Do I have to notify ICBC of a change in principal operator during the term of my insurance policy, before my next insurance renewal?

If a change occurs during the term of your insurance policy you are not required to notify ICBC, or re-declare a change. The change is principal operator does not have to be done until the next time you renew your insurance. When you renew your insurance, you will need to declare who will be driving your vehicle the majority of time.

What happens if I name someone who is not in fact the correct principal operator?

This is where it can get tricky, and potentially very risky, for a car owner. If you declare the wrong principal operator (for example, if you’re a parent who doesn’t declare that your son or daughter is now driving a vehicle registered in your name the majority of the time), you may be in breach of your insurance. This often happens when a parent buys a small or inexpensive car exclusively for the use , or majority of use, for their child. They register a car in their own name, and do not name the child as the principal operator, “ to save insurance premiums”. This should not be done. It can cause the parent/owner potentially catastrophic financial consequences (as well as the child). If there is a breach of the policy (by naming the wrong principal operator), and your son or daughter causes an accident that injures someone, both you and your child could be held personally responsible and liable for the injuries or property damage. If the injuries are serious, you, as registered owner of the vehicle, could be personally responsible to pay potentially millions of dollars in damages. You may lose your house, your business. Everything you own. So always declare your child as the principal operator, if he or she actually is. Do not take a chance of losing everything. The premiums will be more, but better to be honest, and pay a bit more in premiums, than potentially lose your house. Another preferred method is to register the vehicle in the child’s name, so you as parent are not the registered owner. This would avoid parental owner responsibility for serious damages that may be in excess of your insurance third party limits coverage.

Will my premium change if I change the principal operator?

It possibly could, depending on the change. It all depends on the experience and crash histories of the old principal operator, compared to the new principal operator.

How do I change the Principal Operator at a Renewal?

To change the designated principal operator at a renewal, bring that person’s driver’s licence number with you when you renew your policy. This will allow the Autoplan broker to search their claims history, and age, so they can asses the risk of this new driver, and price your policy correctly. You won’t be able to insure the vehicle without the driver’s licence number of your vehicle’s principal operator.

Does this impact a company car?

You will need to declare the name of the driver who will be driving the company vehicle the majority of the time, unless your vehicle is part of a fleet plan,

What if my vehicle doesn’t have a principal operator?

If there isn’t a person who operates your vehicle the majority of the time (for example, if your vehicle is a work vehicle and is operated by different people) you will have to declare that your vehicle has no principal operator. Your vehicle will then be rated at base rate on the claim-rated scale (with no discount or surcharge) because it’s not possible to assess its crash risk.

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Paul Mitchell, Q.C. is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, and other catastrophic injury claims. He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company. For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com

Party Wall Agreements have historically been used to manage the relationship between land owners with a common boundary and a wall down the middle of the property line that supports buildings on both properties.

Party Wall Agreements have not been commonly used a great deal for several years, but housing is becoming increasingly unaffordable and developers are looking for ways to deliver reasonably priced units. Freehold townhomes, which incorporate the use of Party Wall Agreements, can provide an affordable alternative as the area of land used can be higher, with no setbacks between lots, and the elimination of strata fees. However, local governments have been hesitant to approve this form of development because of concerns with Party Wall Agreements.

Party Wall Agreements were historically registered as an easement, with each property owner having access over the other owner’s land to facilitate the common wall. The concern with a Party Wall Agreement by way of easement is that positive obligations within an easement are not binding on future land owners. Although the easement would run with the land, and the entitlement for each party to access the other party’s land would be binding on future land owners, the positive obligations within the terms of the easement, such as repairing and maintaining the party wall, would not be binding on the future land owners.

Changes were made to the Land Title Act of British Columbia in 2012 that resolved this issue by making all positive covenants contained within a Party Wall Agreement binding on each successor in title to a parcel of land against which a Party Wall Agreement is registered.

With this certainty in the obligations of future land owners, local governments are more supportive of the use of Party Wall Agreements in projects like freehold townhouse projects, and some developers in the Okanagan have been choosing this “new” option for their projects.

Contractual interest can represent a significant component of the value of a contract for the party entitled to interest, a significant part of the costs of a contract to the party paying interest and a significant deterrent to a would be breaching party. Despite this, contracting parties frequently fail to adequately and properly ensure that there has been an agreement about contractual interest or that the agreement has been properly recorded. Such was the case in the recent decision of Peace Country Petroleum Sales Ltd. v. O.T.H. Logging Inc., 2016 BCSC 1574 (CanLII).

The Plaintiff was a fuel and petroleum products vendor and the Defendant was a logging company customer. The Plaintiff alleged that there was a contract created partially orally and partially in writing which had a term that overdue accounts would accrue interest at a rate of 24% per year, compounding monthly, such that the effective annual interest rate was 26.82%. The Plaintiff, in support of its claims, pointed to its month end statements which included a note that the penalty for late payment was interest at 24% per year compounding monthly.

The Plaintiff was unable to locate a credit agreement that it said the Defendant signed which set out the effective annual rate of 26.82%.

The Defendant alleged that no agreement was reached about interest and denied entering into the credit agreement.

The Court found that interest was charged and paid and that circumstances were such that there was an implied agreement to pay interest. Where the Court found difficulty in assessing the interest that could be charged was when it applied the law created by the Interest Act, R.S.C. 1985, c. I-15.

With the exception of mortgages on real property or hypothecs on immovable, s. 4 of the Interest Act prohibits an interest rate above 5% annually unless the contract contains an express statement of the effective annual rate. The purpose of s. 4 is to prevent predatory contractual terms by making the yearly effective annual rate of interest a requirement (para. 31 of Peace Country citing para. 36 of Strother v. Darc, 2016 BCCA 297 (CanLII).

The Court in Peace Country found that the Plaintiff had failed to establish that there was an express statement of the effective yearly rate of interest. As such, the Court held that interest was only payable at a rate of 5% per annum. Although not clearly expressed, the Court was likely applying s. 3 of the Interest Act, which provides that if interest is payable, but no rate is fixed by the agreement or law, the rate will be 5% per annum.

The lesson to be learned is that it is especially important for a person expecting to receive interest payments to commit the agreement about interest to writing and to ensure that the effective annual rate of interest is expressed as the method of calculating interest.

Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute or potential legal dispute concerning breach of contracts or contractual interest, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

WHAT. On October 3, 2016, Canada’s Finance Minister Bill Morneau announced changes to mortgage rules with the introduction of a “stress test” designed to ensure that home buying borrowers would be able to make their mortgage payments if interest rates were to rise (the “Test”).

HOW. Currently, borrowers are able to negotiate a rate with their lender and qualify for a mortgage loan. For example, today, a lender may agree to lend funds at 2.95% over a five year fixed term (the “Negotiated Rate”). Under the new rules however, the Test requires that in addition to qualifying at the Negotiated Rate borrowers must also qualify at the Bank of Canada’s five-year fixed posted mortgage rate. As of September 28, 2016, the posted rate was 4.64% (which is an average of the posted rates of the big six banks in Canada).

What this means is that although lenders may still be willing to lend at a rate lower than the 4.64% posted rate (for example, 2.95%), the borrower may be prevented from accessing the 2.95% loan if their finances are such that they would not qualify at the 4.64% posted rate. In effect, the buying power of borrowers is being reduced and the federal government is raising interest rates (with respect to housing) without actually raising interest rates.

The Test also requires that home buying borrowers must not be spending more than 39% of income on “home-carrying costs” (e.g. mortgage payments, heat, taxes) and the total debt service (e.g. all other debt payments) for home buying borrowers must not exceed 44% of income.

WHY. The Test allows the Canadian government to achieve a few objectives:

  1. Attempt to cool high-priced markets in Canada (e.g. Vancouver and Toronto) by pricing out buyers. Canadian housing prices, particularly in markets such as Vancouver and Toronto, are rising at an incredible pace while interest rates have remained at remarkable lows. Under the new rules, prospective purchasers will have a harder time qualifying for loan amounts necessary to allow them to enter hot markets resulting in less demand.
  2. Reduce the federal government’s financial risk in the event of widespread default of insured mortgages. Currently, the federal government has the financial obligation to cover the cost of CMHC-insured mortgages in the event of a default. As a result, it is in the best interest of the government to take action to avoid mass defaults of government-insured mortgages.
  3. Encourage more prudent lending and borrowing practices (see objective #2) by preventing home buying borrowers from obtaining mortgages that would be unsustainable in the event that interest rates rise.

WHEN. The new mortgage rules were implemented on October 17, 2016.

On April 28, 2016 the British Columbia Court of Appeal came out with a decision called V.J.F. v. S. K. W., 2016 BCCA 186. This decision called into question how property is to be divided in BC upon the breakdown of a spousal relationship under the Family Law Act.

In this particular case, a husband and wife separated after 10 years together. The parties received 2 million from the sale of a property that was sold after they separated. This property was acquired entirely by funds given as a gift to the husband. However, the husband had transferred the property into the wife’s sole name before it was sold in order to protect it from creditors. The Court found that the proceeds of sale were no longer “excluded property” because in putting the property in the wife’s name, there was a presumed gift from the husband to the wife.

Why is this case important?

The Family Law Act came into force as new legislation in the Spring of 2013. This new legislation changed many things in the Law around property division. One of the changes was that the new legislation specifically defines “excluded property.” Excluded property is property that is excluded from division upon the breakdown of a spousal relationship. The most common types of property that fit into this list are:

  1. gifts to one of the spouses from a third party;
  2. property owned by one of the spouses prior to the start of the spousal relationship; and
  3. inheritances received by one spouse.

There are other types of property that are excluded as well. Please see section 85 of the Family Law Act and reference my previous Legal Alert article How Do We Divide Our Property if We Separate? The Basics of Property Division Under the Family Law Act for a detailed definition and explanation of excluded property.

This recent Court of Appeal decision is significant because it tells us that the Family Law Act is not a “complete code” and that property that starts out as excluded property can potentially lose the exclusion if something called the “presumption of advancement” applies. The presumption of advancement is a common law principle which operates in several areas of the law including trust, contract and family law. In the context of family law, the presumption of advancement means that a transfer of property from one spouse to the other constitutes a gift of a beneficial interest in the property unless there is clear evidence to the contrary.

What that means is that even if a spouse has property that would normally qualify as excluded property under the legislation, the spouse can lose the right to exempt it from division under the legislation if it is transferred into the other spouse’s name and possibly even if it is transferred into joint names.

This is a significant development in how the new legislation is being interpreted regarding property division.

This is a complex issue in the area of family law. If you are going through a separation or entering a new relationship and think that you have property that would be considered excluded property, we recommend that you consult a family lawyer to discuss your particular situation.

Years back when I was going through the steps of obtaining my full motorcycle licence in British Columbia, I was surprised about how many people I spoke with that rode motorcycles that did not have a full licence. It was even more concerning how many people did not have a basic understanding about the restrictions associated with having anything less than a full Class 6 motorcycle licence. Obviously, it is possible to get a ticket or other sanctions if you get stopped by a police officer while driving in violation of restrictions on your licence. More importantly, however, if you are in a motor vehicle accident, you might end up having to pay for treatment expenses and other losses for yourself and other persons injured in the accident, without the benefit of any insurance coverage.

Driving in violation to the licensing provisions for motorcyclists under the Motor Vehicle Act Regulations can mean that you are not authorized and qualified by law to operate your motorcycle. This, in turn can put you in breach of section 55(3) of the Insurance (Vehicle) Regulation, resulting in serious consequences for you if you are involved in a motor vehicle accident, including loss of entitlement to Part 7 benefits. Part 7 benefits relate to disability benefits, as well as reasonable and necessary medical rehabilitation benefits, arising from an accident. These benefits are not generally dependent on who was at fault for causing an accident, so the potential loss of these benefits can be significant if you are involved in a single vehicle accident or if you are at fault for an accident in whole or in part.

There is another very significant reason for driving your motorcycle with the appropriate licence for the circumstances. If you are driving in violation of licensing requirements, then you may be held in breach of your third party liability coverage. In other words, if a pedestrian, cyclist, your passenger or someone in another vehicle is hurt and you are found at fault in whole or part, then your insurer may pursue you personally to recover any damages that it has to pay to the injured person or persons. Depending on the number of people injured and the severity of injuries, not having insurance coverage could be a financially disastrous outcome for most people.

Hopefully anyone riding a motorcycle realizes that a having a licence to operate a passenger vehicle is not enough to allow you to legally operate a motorcycle. The classes of motorcycle licences available and the steps required to obtain a motorcycle licence depend on whether you already have a BC driver’s licence.

Drivers with a full BC driver’s licence (Class 1-5)

You first have to pass the motorcycle knowledge test. If you are under 19, then you need consent from your parent or legal guardian. With this level of learner’s licence, you cannot drive over 60 kph, you cannot have a passenger, you must have a person with a full motorcycle licence within eyesight at all times and you cannot drive after dark.

After 14 days, you can take your skills test (parking lot test). You may be able to skip the skills test if you take a course at a certified rider training school. Once you pass this test, then the 60 kph restriction and the requirement to ride with a supervisor are removed. It is important to remember that your learner’s licence will expire after two (2) years.

After at least 30 days as a learner, you can take your Class 6 road test. You must have a Class 6 licence to ride with a passenger.

L & N drivers or new drivers

If you have your passenger vehicle L or N licence, then you get your motorcycle learner’s licence by passing the motorcycle knowledge test. If you don’t have your L or N yet, then you also have to pass the passenger vehicle knowledge test.

After 30 days with your L, you can take the skills (parking lot) test. You then have to have your L for at least 12 months before taking your Class 8 motorcycle road test. Once you pass, you enter the novice stage of graduated licensing for motorcycles. Restrictions at this stage are zero blood alcohol content, displaying your N and no use of electronic devices. You can only take your Class 6 road test after 24 months in the novice stage without a prohibition.

In summary, it is worthwhile to take the time to ensure that you understand and comply with any restrictions on your driver’s licence while operating a motorcycle. You may have friends and family that need the issue of motorcycle licence restrictions brought to their attention as well. In the unfortunate event that you are involved in an accident while riding, a loss of insurance coverage is the last thing you want to be dealing with.

In what will no doubt be one of the most impactful employment law cases of the year, the Supreme Court of Canada in Wilson v. Atomic Energy of Canada, 2016 SCC 29 has found that federally regulated employers cannot, absent economic reasons, terminate a non-unionized employee without just cause. The decision appears to have settled a debate that has been ongoing for nearly 40 years as to whether the “unjust dismissal” provisions of the Canada Labour Code preclude an employer from terminating an employee, even if common law severance is provided.

Background

At the outset, it is important to recognize that this decision applies only to companies (and their employees) under federal jurisdiction. This includes banks (not credit unions), companies in telecommunications (such as broadcasting), companies in inter-provincial transportation (planes, trains, shipping and trucking), employees of First Nation bands, the Federal government and federal crown corporations.

Joseph Wilson was hired by Atomic Energy Canada Limited (AECL) in 2005. He worked for 4.5 years before being terminated in 2009. He had a clean disciplinary record. In December 2009, Mr. Wilson filed an “Unjust Dismissal” complaint with Federal Labour Standards.
For those unfamiliar with unjust dismissals, relevant portions of the Code state as follows:

240(1) Subject to subsections (2) and 242(3.1), any person
a) who has completed twelve consecutive months of continuous employment by an employer, and
b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
[…]
242(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
b) reinstate the person in his employ; and
c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

When prompted for reasons for the termination, AECL stated that Mr. Wilson was “terminated on a non-cause basis and was provided a generous dismissal package that well exceeded the statutory requirements.” A labour adjudicator was appointed, and ultimately found that “an employer could not resort to severance payments, however generous, to avoid a determination under the Code about whether the dismissal was unjust.” Because AECL did not rely on any cause for the termination, the complaint was allowed.

The Federal Court and the Federal Court of Appeal disagreed, finding that a dismissal without cause is not necessarily an unjust dismissal, and noting that nothing in the Code precluded employers from dismissing non-unionized employees without cause. The case ultimately found its way to the Supreme Court of Canada.

The Supreme Court Decision

In a split decision, the Supreme Court issued a decisive judgement in favour of workers. Key to this decision was the historical context behind Parliament’s decision to include ‘unjust dismissal’ provisions in the Code. In fact, on multiple occasions the Court recognized that Parliament intended to create a statutory framework protecting federally regulated employees from arbitrary dismissal, much in the way that unionized employees are protected under collective agreements:

And this, in fact, is how the new provisions have been interpreted by labour law scholars and almost all the adjudicators appointed to apply then, namely, that the purpose [of unjust dismissal provisions] was to offer a statutory alternative to the common law of dismissals and to conceptually align the protections from unjust dismissals for non-unionized federal employees with those available to unionized employees.

Under the common law, an employer may terminate for any reason, provided that reasonable notice of the termination has been provided and that the reasons underlying the termination respect human rights legislation. In fact, explanations such as “this just isn’t working out” or “you are not a right fit for the job” are commonly used when letting an employee go.

This ‘right to dismiss’ creates a major distinction between non-unionized and unionized workplaces, as collective agreements have largely done away with an employer’s unfettered ability to terminate employment for reasons unrelated to performance. Without a strong case for a “just cause” termination or economic layoffs, employers in unionized workplaces have limited room to terminate.

In the Atomic Energy case, the Supreme Court found that federal unorganized workers have comparable protections against arbitrary terminations as those that are enjoyed by unionized workers under collective agreements. To that end, the Court stated that in order for a termination to be ‘just’, the employer must seeks to justify the dismissal by showing that the employee was aware of performance problems, that the employer worked to rectify them, and imposed a “gradual repertoire of sanctions before resorting to the ultimate sanction of dismissal”.

Takeaways

The implications of this decision may be significant. At its simplest, federally regulated employers will have less flexibility in managing their workplace, no matter what is given by way of severance. Terminating employees will be more difficult and more expensive.

Damages for unjust dismissals may also be significant. Filing complaints through the Federal Labour Standards program is often quicker, easier and cheaper than a wrongful dismissal action. Damages also have the potential to be larger, as an adjudicator has the authority to award reinstatement of employment and compensation for lost wages, in much the same way that a labour arbitrator would.

One important final note – the limitation period for unjust dismissal is very short, as an employee will generally only have 3 months following termination to file a complaint.

When real estate developers consider disclosure requirements they commonly think of the obligations under the Real Estate Development Marketing Act. However, depending on the structure of the developer, there may also be disclosure and/or filing requirements under the Securities Act (British Columbia) (the “Securities Act”)

The recent findings by the British Columbia Securities Commission in Re Wong (2016 BCSECCOM 208) confirm the disclosure obligations in relation to joint venture interests. In Re Wong, two sisters were developing projects through various companies and were selling joint venture interests in the projects. The Securities Commission considered whether the sale of the joint venture interests were subject to the Securities Act.

The Securities Act requires that a security must not be distributed unless a preliminary prospectus and a prospectus respecting the security have been filed, or the distribution is exempted under the Act. The Act defines “security” to include an “investment contract”. Although “investment contract ‘ is not defined in the Act, the Supreme Court of Canada in Pacific Coast Coin Exchange of Canada et al. vs Ontario Securities Commission (1978 2 SCR 112) defined an investment contract to be “ … an investment of money in a common enterprise with profits to come solely from the efforts of others.”

The parties accepted that the joint venture interest was an investment of money in a common enterprise. The question for the Commission was whether the joint venture interest was intended to make a profit solely from the efforts of others. The Commission found that the joint venture investors intended to pay their investment amounts, and then let the sisters develop the property without input from the investors. On that basis, the Commission found the joint venture interests to be a security, the distribution of which required compliance with the Securities Act.

The distribution of many joint venture interests will not be subject to the Securities Act as each joint venturer will commonly be involved in the development of the project. However, consider a couple of common scenarios:

  1. A developer approaches a land owner to enter into a joint venture in which the land owner will provide his land to the joint venture, the developer will develop the land and the parties will split the profits;
  2. A lender invests mezzanine financing money into a joint venture on terms in which each of the lender and developer are joint venturers, the lender takes back a modest return, the developer develops the property and the parties split the profits.

In either situation, depending on the terms of the Joint Venture Agreement, the sophistication of each party and the level of involvement of each party in the development, the joint venture interest may be considered a security, and the distribution of the security required to comply with the Securities Act.

_____________________________________________________________________

This article was co-authored by Bradley Cronquist and Keith Inman. Keith is an Alberta and B.C. securities lawyer who can be reached at 250-869-1195 or by email at inman@pushormitchell.com

In my foreclosure practice, typically the material circumstances have already been cast in stone by the time a client comes to see me about going to court. Often times, the remedies (or restrictions) that are available to a lender have already been determined well before a borrower has defaulted on a loan. One situation that lenders in BC will want to be aware of is that of a loan on new construction by an owner builder.

The Homeowner Protection Act, SBC 1998, ch. 31, deals with consumer protection for new home buyers in Part 8 of the Act. More specifically, section 22 of the Act stipulates that a person must not sell or offer to sell a new home within 10 years from the date of an occupancy permit (or the date that the registrar was satisfied the new home was first ready for occupancy if there is no occupancy permit). The exception to this restriction where the new home is covered by home warranty insurance provided by a warranty insurer or the new home is exempt by regulation.

The potential pitfall for lenders comes as a result of Section 20 of the Act. Section 20 states that a person who intends to build a home for personal use may be issued an authorization if that person pays the prescribed fees and meets the criteria for an owner builder. The important consequence is that an borrower with an owner builder’s authorization is not required to obtain home warranty insurance. Of course, this introduces an issue for lenders under Section 22, namely that the property would not be covered by home warranty insurance and, thereafter, the property must not be sold within 10 years from the date of an occupancy permit being issued or from the date that the registrar is satisfied that the property was first ready for occupancy.

Thus it is possible to envision a hypothetical situation where a loan is made to an owner builder on new home construction without consideration for the provisions of the Act. In this hypothetical, the owner builder complies with section 20 and does not obtain home warranty insurance. Subsequently, the owner builder goes into default, but well before 10 years from obtaining an occupancy permit. The lender could make a demand and start a foreclosure proceeding, but would encounter a problem at the stage of seeking conduct of sale. Specifically, Section 22 of the Act would prevent the lender from offering the property for sale for up to 10 years due to the lack of home warranty insurance coverage.

Interestingly, Section 22 of the Act does include a subsection that allows a person to apply to the registrar for permission to sell a new home or offer the new home for sale despite the requirements of the Act, if the registrar is satisfied that the person would suffer undue hardship if the permission is not granted. However, in practice, this permission is extremely difficult to obtain. In the rare circumstances where I have heard of permission being granted, the registrar had been able to see behind the walls to ensure that the wiring, plumbing and other key elements of the construction were completed to a standard acceptable to the registrar.

In summary, lenders should be mindful when lending to owner builders on new construction. There could be issues down the road that significantly impede enforcement remedies for up to 10 years. If you have any questions or concerns about the provisions of the Act, make sure to ask your lawyer before lending on new construction by an owner. Contact me at ledding@pushormitchell.com or 250-869-1170.

For many growth businesses, going public is an attractive way to access capital, increase visibility for their brands and create liquidity for shareholders. In this article, I want to review the TSX Venture Exchange’s (the “TSXV”) Capital Pool Company (“CPC”) program as a unique listing vehicle that emerging companies may wish to consider.

The TSXV is considered to be a junior exchange where listing and on-going regulatory compliance are more suited to emerging or growth companies. That said, once a company’s shares are listed for trading on the TSXV, they can be bought and sold in the same way as stocks on any other exchange.

The TSXV’s CPC program provides a two-step introduction to capital markets. The CPC program introduces investors with financial market experience to entrepreneurs whose growth and development-stage companies require capital and public company management expertise. Unlike a traditional initial public offering, the CPC program enables seasoned directors and officers to form a CPC with no assets other than cash and no commercial operations, list it on the TSXV and raise a pool of capital. The CPC then uses these funds to seek out an investment opportunity in a growing business. This investment is referred to as the CPC’s Qualifying Transaction. Once the CPC has completed its Qualifying Transaction and acquired an operating business that meets TSXV requirements, its shares trade as a regular listing on the TSXV.

The Capital Pool Company Process

Stage 1

At least three individuals with an appropriate combination of business and public company experience put up the greater of $100,000 or 5% of the total funds to be raised. These founders incorporate a shell company (the CPC) and issue shares in exchange for seed capital.

The CPC prepares a prospectus that outlines management’s intention to raise funds by selling CPC shares and to use the proceeds to identify and evaluate potential acquisitions. The CPC files the prospectus with the appropriate securities commissions and applies to list the securities on the TSXV. A registered dealer then sells the CPC shares pursuant to the prospectus to the public and once the sale is complete, the CPC is listed as a publically traded entity on the TSXV.

Stage 2

Within 24 months of the date of the prospectus, the CPC must identify and announce the acquisition of an appropriate business as its Qualifying Transaction. The CPC then prepares a disclosure document providing prospectus-level disclosure of the business proposed to be acquired and seeks TSXV approval of the proposed transaction. Often, shareholder approval is not required by CPC shareholders and the CPC can close the acquisition shortly after receiving TSXV approval for the Qualifying Transaction.

Frequently, the CPC’s Qualifying Transaction is structured as a reverse takeover with a concurrent financing such that the operating company (the emerging or growth company) essentially takes over the CPC shell. The management team and board of directors of the growth company generally stay intact following completion of the Qualifying Transaction, though it also is not uncommon for one or more of the CPC’s directors to take board positions with the operating entity.

The benefit to the emerging company in CPC approach is that it saves the company the time and expense of going through the usual regulatory process of becoming publically listed and it can draw on the public market expertise of the CPC’s founders.

Why use a CPC?

  • CPCs provide an alternative route to accessing capital that allows the company’s founders to retain a higher ownership than through a traditional IPO
  • Public companies benefit from greater visibility, stock options and M&A currency for acquisitions via share issuance
  • CPCs provide a going public process that has greater flexibility, more certainty and allows for more control by companies
  • reduces the risk of the going public process for the company

Keith Inman is a securities and M&A lawyer with broad experience in the capital markets. Keith has advised numerous emerging and growth companies through the go-public process and has been a founder and director of multiple Capital Pool Companies.

In a new decision in Wilson v. Atomic Energy of Canada Limited, the Supreme Court of Canada has affirmed that non union, non management, employees of federal undertakings may under the complaint process under the Canada Labour Code be reinstated if terminated without just cause. This issue has been in litigation for several years after the Federal Court of Appeal decided that employees would not have this protection. This decision by our highest court takes us back to what the majority view of the intent of the legislation was originally.

This puts this class of employee into a similar position enjoyed by union employees with respect to the ability to challenge dismissals without cause and potentially be reinstated. There is also the power in an adjudicator under the Canada Labour Code to award damages in addition to or in substitution for reinstatement of employment.

In my previous article, Here, There or Anywhere: Where to Sue and be Sued, I discussed factors the Courts in BC consider when determining whether or not to adjudicate on matters where the matters could be determined in more than one legal jurisdiction. In this article, I will discuss a recent case, Naturex Inc. v. United Naturals Inc., 2016 BCSC 1500 (CanLII) in which the Supreme Court had occasion to discuss choice of law, choice of forum and attornment.

A choice of law clause is an agreement whereby the parties to a contract agree in advance that any legal dispute under a specific contract should be resolved in accordance with the laws of a particular jurisdiction. For example, British Columbia. A choice of forum clause in an agreement to actually resolve a dispute in a certain place. Generally both the choice of law and choice of forum clauses will specify the same jurisdiction.

Attornment is when a party’s acts or actions are deemed to be an acceptance of the authority of a court in a certain jurisdiction. As stated in my previous article, any number of acts a party takes may inadvertently and, more importantly, irrevocably determine the jurisdiction in which the case is heard and such a determination can materially affect the remedies and rights available to a party.

In Naturex Inc., the Defendant was being sued for goods supplied under a written agreement. The agreement provided that disputes under the agreement were to be resolved outside of BC; however, the claim was commenced in BC and the Defendant filed a response to civil claim in defence of the claim in BC in which it did not dispute the British Columbia Supreme Court’s jurisdiction.

It was only three weeks after it first filed a response that the Defendant then amended its response to civil claim to plead that the parties contracted to have the agreement determined outside of BC.

The Court held at para. 7 that “By filing a response to civil claim… the defendant asked this Court to resolve the dispute between the parties. Its pleading said nothing about jurisdiction.” The Court went on to observe that the Supreme Court Civil Rules provide a way to respond without losing the right to dispute jurisdiction, but that the Defendant had failed to avail itself of this option.

The Court summarized its views in para. 10 when it stated: “A defendant must first challenge jurisdiction in the manner contemplated by [the Rules] before it defends the action on the merits. It cannot first invoke this Court’s jurisdiction by engaging the court in the merits of the case and later dispute that very jurisdiction.”

Ultimately the Court rejected arguments about a more appropriate forum on the basis that the dispute about forum was motivated by a desire to delay trial rather than to ensure trial proceeded in a more appropriate forum (para. 20).

The lesson from Naturex Inc. is clear. Even where the parties contract to have their agreement dealt with in a certain jurisdiction, their actions can abrogate any right they have to demand that a dispute arising out of that agreement be resolved in the jurisdiction of choice. For this reason, it is always crucial to obtain proper legal advice about both the drafting of choice of law and choice of forum clauses and in commencing any claim or defence in which jurisdiction, choice of law clauses or choice of forum clauses are in issue.

Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute or potential legal dispute in which you have become involved where the proper jurisdiction is in question, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our .

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

There are many categories of intellectual property, but the main categories are:

  • Patents (Inventions)
  • Trademarks (Brand Names, Trade Names, Trade Dress)
  • Copyright (Expressions)
  • Industrial Designs (Ornamentation)
  • Trade-Secrets (Undisclosed Ideas)
  • Integrated Circuit Topographies (Chip Designs)
  • Plant Breeder’s Rights (New Plant Varieties)

Most intellectual property rights have some legal protection as soon as they arise, however, these rights can be significantly enhanced and improved by registration with the intellectual property offices in many countries. The most common intellectual property right are outlined in more detail as follows:

  1. Patents – A patent provides legal protection for an invention or process that is novel, non-obvious and clearly defined.
  2. Trademarks – A trademark is a symbol, word, slogan or logo used to distinguish your brand or product from others.
  3. Copyrights – Copyright exists the moment you write, record or otherwise create something tangible with your ideas. Ownership automatically belongs to the author, so if you are hiring a graphic designer to design a logo for your business for example, be sure to have them execute a “Copyright Assignment and Waiver of Moral Rights Agreement” assigning all rights in the logo to you/your company.

Protecting your intellectual property is extremely important. The value of your brand can be significant and often much more valuable than any inventory you may have.

Vanessa DeDominicis is a Partner and a Registered Trademark Agent with the Canadian Intellectual Property Office and the United States Patent and Trademark Office. Her business law practice has a specific focus on intellectual property law, including filing Canadian and US trademark applications and advising clients on infringement issues. This information applies as a general rule ONLY and may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information. You can contact Vanessa on 250-869-1140 or dedominicis@pushormitchell.com

In many potential litigation matters, a preliminary issue is the place in which the litigation is to proceed. The parties and issues involved can leave substantial questions about which jurisdiction is appropriate one in which the lawsuit should be commenced and tried. The resolution of this issue can have long-reaching consequences as laws and judicial procedures differ from province to province and country to country. The recent case of Bier v. Continental Motors, Inc., 2016 BCSC 1393 (CanLII) centred on such issues.

In Bier the plaintiffs were passengers in a small airplane who were suing various parties after the plane crashed in the Yukon. The plane was operated in the Yukon; the apparent cause of the crash, a failed engine, was manufactured in Alabama; and the engine was installed as part of an overhaul by a company which did business in Kelowna, British Columbia. The judgment concerned the application of the manufacturer who contended that BC’s Supreme Court lacked jurisdiction to hear the case or, in the alternative, that the Court should decline its jurisdiction.

The manufacturer had a report prepared by an expert which report opined that Alabama’s court would likely refuse to recognize a judgment in BC. The overhaul company tendered a report of their own where their expert concluded Alabama’s court may have recognized a BC judgment.

The Court in Bier turned to the Court Jurisdiction and Proceedings Transfer Act (the “Act”), the legislation governing such issues in BC. The Act provides for a two-step process for determining whether the Court will exercise its jurisdiction.

First, the Court determines whether it has jurisdiction simpliciter or territorial competence. Per s. 3 of the Act, the Court has territorial competence if a claim is brought against a defendant where:

  1. a counterclaim is made against a plaintiff who starts their action in BC;
  2. the defendant submits (or attorns) to the Court’s jurisdiction;
  3. there is an agreement between the plaintiff and the defendant to the effect that the court has jurisdiction in the proceeding;
  4. the defendant is ordinarily resident in British Columbia at the time of the commencement of the proceeding; or
  5. there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

Determining whether several categories of territorial competence may apply can be a complex analysis which requires consideration of applicable case law and it is beyond the scope of this article to discuss this process in detail.

If there is no territorial competence the Court will decline jurisdiction and the analysis is over. If there is territorial competence, the Court will move on to the second step of the analysis, the forum non conveniens test. In this step, the Court determines whether there is a more suitable forum than BC based on the forum non conveniens test. S. 11 of the Act sets out a host of factors to consider in this analysis including the interests of the parties to a proceeding and the ends of justice. From para. 36 of Bier, “…the objective of the court in deciding a forum non conveniens application is to ensure fairness to the parties and the efficient resolution of the dispute.” Bier confirms at para. 34 that a plaintiff has a presumptive right to proceed in his or her chosen forum.

The Court in Bier resolved the territorial competence component of the analysis at paras. 52 and 60 where it determined that the claim concerned a tort committed by the manufacturer in BC and that the manufacturer carried on business in BC. Those two factors created a real and substantial connection to BC.

The Court resolved the forum non convienens test at para. 69 where it held that it was not satisfied that Alabama was clearly the more appropriate forum.

Bier illustrates that it is crucial for parties who are involved in litigation in which the proper forum might be an issue to obtain legal advice or assistance early. Any number of acts a party takes may inadvertently and irrevocably determine the jurisdiction in which the case is heard and such a determination can materially affect the remedies and rights available to a party.

Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about the foregoing or a legal dispute or potential legal dispute in which you have become involved where the proper jurisdiction is in question, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

As a Family Law Lawyer who is also a divorced parent, some of my most challenging cases are those involving an acrimonious child custody dispute. Parties undergoing separation and divorce retain counsel for legal advice and direction during one of the most stressful times of their lives. Separating spouses need to navigate the complex legal, emotional and financial issues during a time of tremendous change and upheaval in their lives. Many clients have expressed that the process of separation and divorce is likely the most stressful experience in their adult life.

It is not surprising therefore that many family law clients often struggle with a wide range of emotions including shock, anger, grief, uncertainty, sadness, betrayal, anxiety, confusion, and loss of self-esteem. The majority of my clients are eventually able to find their way to a place of forgiveness and closure, although the time it takes to find this path varies widely.

Despite the fact that both parents love their children deeply, there are times when some parents become so focused on their own emotional baggage that they overlook the impact of their animosity toward their former spouse is having upon their children. Parents caught up in feelings of anger and resentment toward their spouse can sometimes be oblivious to how their attitude and conduct may be affecting their children. I recently came across a very powerful video which very succinctly summarizes a child’s perspective and highlights for parents how children experience their parents’ divorce:

Video provided by The Child of Divorce and ChristainWorks for Children

I encourage my clients to realize that children living through their parents’ divorce are very likely experiencing many of the same emotions as their parents. However child psychologists have noted that children lack the maturity to fully understand and process the complex emotions. In addition children are vulnerable to feeling “caught in the middle” of their parents’ dispute because their parents conduct is creating conflicting loyalties. Children want to maintain their relationship with both parents. Although Mom and Dad don’t love each other anymore children very much want to continue to love both Mom and Dad. Research shows that children benefit when their parents consciously keep the children out of the dispute between the adults. Children benefit when they hear positive remarks about one parent from the other, and when they are reassured that their relationship with both their parents is important and valuable. I encourage my clients to reinforce with their children that they need not choose one parent over the other. Child psychologists agree that what children need is permission and freedom to continue to love and cherish both of their parents, even after their parents are no longer living together.

Hopefully, if you have the misfortune to be injured in a motor vehicle accident, then you are not at fault for the accident and you are able to identify the driver of the vehicle who is at fault. In that scenario, you could make a claim for compensation against the negligent driver. In addition, the negligent driver will ideally have insurance coverage in place to assist with compensation for your injuries and losses.

However, what if you are injured by the negligent use or operation of a motor vehicle, but you aren’t able to identify the driver of the vehicle that caused your injuries. Maybe the other driver left some debris or substance on the road. Maybe the other driver caused the collision, but didn’t remain at the scene. Who can you claim compensation from in these type of situations?

In BC, section 24 of the Insurance (Motor Vehicle) Act may be available to assist with compensation in unidentified driver situations. When someone is injured as a result of the negligent use or operation of a motor vehicle, then ICBC may have an obligation to provide compensation for losses up to $200,000.00. However, you will have to comply with the requirements outlined in section 24 in order to successfully claim compensation. One key element is that you must make reasonable efforts to ascertain the identity of the other driver, both at the scene if possible, as well as in the days and weeks that follow. What is determined as reasonable by the Courts will depend on the circumstances. For example, it would generally not be seen as reasonable to expect a person with severe injuries or a loss of consciousness to get the licence plate of a vehicle that leaves the scene. Generally, if a person should have been able to get some information about the other vehicle at the scene, then the failure to do so could result in a challenge to a claim under section 24. As much information as possible should be gathered at the scene and the accident should be promptly reported to the police and ICBC. Photographs of the scene may also prove useful.

In addition, reasonable efforts must be made to ascertain the identity of the other driver in the days and weeks after the accident. Often ads are run in the newspaper and posters are put up at the scene and nearby residences or businesses. Sometimes witnesses will come forward. Again, reasonable efforts depend on the circumstances and location that the accident occurred.

Basically, the best practice if you are injured in a motor vehicle accident is to do everything you can think of that might be seen as reasonable to try to identify witnesses and the other vehicle or its driver. If you are too injured to take steps to try to identify the other driver, then hopefully your friends and family can provide some assistance. It is NOT always enough to solely rely on the police, without making any efforts of your own and following up with the police.

Of course, if you are injured by an unidentified driver, then you should consider consulting with a lawyer as soon as possible about section 24. If you find yourself in the unfortunate situation of being injured by an unidentified driver, then contact us at Pushor Mitchell LLP to arrange a free initial consultation with one of our lawyers.

In virtually all standard contracts of purchase and sale, the parties agree that the vendor will provide a property disclosure statement (“PDS”) and that the representations made in the PDS will survive the completion of the contract. Where vendors and purchasers frequently get into disputes after closing is when purchasers form the belief that vendors misrepresented the state of the property through a PDS.

In Nixon v. MacIver, 2016 BCCA 8 (CanLII) the Court of Appeal neatly summarized the legal principals concerning property disclosure statements.

In Nixon, the purchasers were buying a home that they understood to be 5 or 6 years old and received a PDS which indicated that the roof was 6 years old. The headnotes of the case state that the residence had been constructed by incorporating a cabin from elsewhere into a newly constructed foundation and lower level.

The purchasers discovered that the roof of the cabin had not been replaced and, as such, the roof was not 6 years old as indicated in the PDS. In the result, although the PDS incorrectly stated the age of the roof, the vendors had not experienced problems with the roof and had assumed that a new roof had been placed on the entire structure. In other words, the vendors didn’t know that their understanding of the facts was incorrect.

The Court held that it remains good law in BC that the doctrine of caveat emptor, or buyer beware, applies to purchases of real property subject to only to the following limited exceptions as set out in previous Court decisions:

  • where the vendor fraudulently misrepresents or conceals an issue with the property;
  • where the vendor knows of a latent defect rendering the house unfit for human habitation;
  • where the vendor is reckless as to the truth or falsity of statements relating to the fitness of the house for habitation;
  • where the vendor has breached his or her duty to disclose a latent defect which renders the premises dangerous.

On patent vs. latent defects and the obligations of purchasers to protect their own interests, the Court emphasized the following from Cardwell et al v. Perthen et al, 2006 BCSC 333 (CanLII), aff’d 2007 BCCA 313 (CanLII):

In general, there is a fairly high onus on the purchaser to inspect and discover patent defects. This means that a defect which might not be observable on a casual inspection may nonetheless be patent if it would have been discoverable upon a reasonable inspection by a qualified person: [citations omitted]. In some cases, it necessitates a purchaser retaining the appropriate experts to inspect the property…

Nixon and case law generally make it clear that a PDS is not intended to act nor should be relied on as a warranty or guarantee as to the state of a property. Virtually all standard form contracts of purchase and sale include conditions that purchasers approve the PDS and obtain a satisfactory home inspection report. This provides purchasers an opportunity to collapse the contract if they are not satisfied as to the condition of the property they are buying.

The limitation of the use of a PDS is frankly stated in Nixon where the Court held that:

…a vendor is only obliged to disclose his or her current actual knowledge of the state of affairs of the property to the extent promised in the disclosure statement and need say “no more than that he or she is or is not aware of problems”…

[T]he vendor must correctly and honestly disclose his or her actual knowledge, but that knowledge does not have to be correct. A vendor is not required to warrant a certain state of affairs but only to put prospective purchasers on notice of any current known problems. The purpose of a disclosure statement is to identify any problems or concerns with the property, not to give detailed comments in answer to the questions posed.

The take away? Prudent purchasers take all reasonable steps as may be necessary to fully satisfy themselves as to the state of a property before committing to purchase it because they can’t always rely on the representations of vendors as indicating the true state of affairs.

If you are interested in reading more about patent vs. latent defects, you may read my previous article on the issue here.
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Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a the foregoing or have gotten into a dispute over a real estate transaction, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

To facilitate small, local financings by Alberta-based start-up businesses, the Alberta Securities Commission (the “ASC”) has implemented ASC Rule 45-517 – Prospectus Exemption for Start-up Businesses (the “Start-up Business Exemption” or “ASC Rule 45-517”).

The Start-up Business Exemption is available for distributions of certain securities by Alberta issuers seeking to raise funds from Alberta investors. The Start-up Business Exemption is a prospectus exemption designed to respond to concerns that small and start-up issuers encounter when trying to address very modest financing needs. The funding limit permitted under ASC Rule 45-517 is $250,000.

An issuer wishing to raise funds can use the prospectus exemption in ASC Rule 45-517 in three ways:

  • to raise money through an online funding portal (provided that the portal is in compliance with the registration requirement e.g., registered as an exempt market dealer);
  • to raise money through a dealer (provided the dealer is in compliance with the registration requirement e.g., registered as an exempt market dealer or investment dealer) that will solicit investment and distribute securities through traditional distribution channels; or
  • to raise money through the issuer’s principal’s own network of contacts (provided that they are not in the business of trading securities such that the dealer registration requirement is triggered).

Included among the key conditions of the Start-up Business Exemption are the following:

  • The head office of the issuer must be located in Alberta (or, in certain circumstances, a corresponding jurisdiction).
  • The issuer must prepare an offering document in the required form, which includes certain information about its business, its management and the offering, including how it intends to use the funds raised, and the minimum offering amount.
  • The issuer, including other members of its “issuer group”, cannot raise in aggregate more than $250,000 per distribution. The issuer group is also limited to two start-up business distributions in a calendar year.
  • The aggregate lifetime amount that an issuer group can raise under all start-up business distributions is $1,000,000.
  • Generally, the maximum amount that an issuer can accept as a subscription from an investor in a start-up business distribution is $1,500. However, if a registered dealer provides the investor advice that the investment is suitable to the investor, the maximum subscription from that investor is $5,000.
  • If the distribution is made through a funding portal the portal must be a registered dealer.
  • The issuer must provide purchasers with a 48 hour period in which to cancel their agreement to purchase securities.
  • The issuer must provide each investor with a specified form clearly explaining certain risks of investing and must obtain an acknowledgment from each investor that they have read and understood the contents of that form.

Importantly, ASC Rule 45-517 does not include a registration exemption. If a person or company is in the business of dealing in securities in Alberta, including as a funding portal, they will be required to comply with the registration requirement.

For issuers, the Start-up Business Exemption is designed to be a simpler and less costly capital raising alternative. For investors, the exemption is designed to clearly convey and limit the risks that can be associated with an investment in an early-stage business.

Is the Start-Up Business Exemption Right for Your Company?

Before commencing a distribution under ASC Rule 45-517 issuers should consider whether it is appropriate for their purposes. In particular, issuers should assess whether they have the resources to comply with the requirements under the Rule and estimate if they have the financial and other resources necessary to manage a greater number of security holders.

If the distribution is successful, the founders of the issuer may have to give up part of the ownership of the issuer to investors. The issuer will be accountable to its investors. Investors will likely expect to be informed about successes and failures of the issuer’s business. The issuer may have to spend time and money to maintain contact with investors.

Within 30 days after the closing of a distribution, the issuer must file a report of exempt distribution, in the required form, with the ASC. There is a fee associated with the filing of this report.

An issuer that relies on ASC Rule 45-517 will likely no longer be considered a “private issuer” under National Instrument 45-106 – Prospectus Exemptions and, as such, will likely not be able to rely on the “private issuer” prospectus exemption for future distributions of securities. As a consequence, other prospectus exemptions will need to be considered and if relied upon, a report of exempt distribution with the associated fee will likely be required in respect of each future distribution.

ASC Rule 45-517 is not available to reporting issuers. Reporting issuers are companies that are required to make continuous disclosure to the public of their business activities including by filing financial statements and other documents as required by securities legislation.

Relying on ASC Rule 45-517 will not make an issuer a “reporting issuer” under securities laws; however, by increasing the number of its shareholders, the issuer may become subject to certain reporting requirements under applicable corporate law. For example, under the Business Corporations Act (Alberta) an issuer is typically required to hold an annual meeting of its shareholders and is required to distribute an information circular, containing certain specified information, where it solicits proxies from more than a specified number of shareholders. Also, under Business Corporations Act (Alberta), an issuer will often be required to deliver audited annual financial statements to shareholders, unless the shareholders unanimously resolve to dispense with the appointment of an auditor. With a large number of public shareholders obtaining such a resolution may not be realistic.

The Start-up Business Exemption is nuanced and issuers would be well served to discuss the application and implications of the legislation with a legal advisor prior to relying on it.
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Keith Inman is an Alberta and B.C. qualified securities and M&A lawyer with broad experience in the capital markets. Keith regularly advises individuals and companies with respect to capital raises, securities reporting and compliance matters, purchases and sales of businesses and other corporate/commercial matters. You can reach Keith at 250-869-1195 or by email at inman@pushormitchell.com.

In the midst of a strata dispute with your council or neighbour? Or, are you owed money where the amount in issue is relatively small such that it does not make financial sense to hire a lawyer?

The Civil Resolution Tribunal (the Tribunal for short) may be your ideal venue. Billing itself as the first of its kind, the Tribunal is Canada’s first online dispute resolution model for resolving strata and certain small claims matters normally reserved for Provincial Court.

The intent of the Tribunal is to promote access to justice while being highly flexible to the needs of the parties involved in the process. Designed to be primarily online based, the Tribunal fosters a collaborative approach to resolving disputes, offering a host of services including negotiation, facilitation and ultimately adjudication if the parties are unable to resolve the issues amongst themselves.

Perhaps the most important quality of the Tribunal is its attempt to deal with disputes in a highly efficient and expedient manner. Unlike matters that may get bogged down for years in the Supreme Court the Tribunal has a mandate to ensure that all disputes are to be settled within 100 days.

Utilizing technology, including a purposefully designed computer program titled Solution Explorer, the Tribunal encourages parties to submit evidence, written accounts, documents and any other information online into the Solution Explorer program. Negotiations or hearings (as the case may be) will be held online, via videoconferencing or teleconferencing, depending on the needs of the parties and whatever the facilitator deems appropriate in the circumstances.

Certainly the appeal of the Tribunal is the ability for citizens to have access to justice when it is convenient for them. Having to take time off work or being held to firm deadlines in the normal court processes are common concerns of litigants. Furthermore, the Tribunal is designed to obviate the need for lawyers, unless parties prefer representation or the complexity of the issues requires counsel oversight. In all respects, the Tribunal hopes to alleviate some of the legal and financial burden of low value claims.

Is the Tribunal the right forum to deal with my strata dispute?

While the Tribunal is not afforded unlimited authority to deal with all types of strata disputes (as certain matters remain within the jurisdiction of the Supreme Court of British Columbia) the Tribunal is designed to deal with typical disputes involving:

  • Non-payment of strata fees or fines;
  • Actions, threatened actions or decisions of a strata council;
  • Arbitrary bylaw enforcement;
  • Common property;
  • Matters of governance including voting irregularities, failing to hold meetings or the absence of recorded minutes; and
  • Interpretation of bylaws, legislation and regulations.

The program is not without legal teeth. A judgment of the Tribunal is binding on all parties and may be filed in Provincial or Supreme Court and it will have the same force and effect as if it were a judgment of a British Columbia court.

One concern that may be raised is how participants in the Tribunal can assure themselves that the opposing party is adhering to the process in a fair and transparent manner, particularly as it relates to online evidence and therefore cannot be tested before a judge? The Tribunal appears to have considered this issue directly and is authorised to impose fines of up to $10,000 as well 6 months imprisonment for blatant acts (for example. purposefully misleading the Tribunal) committed by participants that a court would view as contemptible.

Currently the Tribunal has limited the program to accepting online applications for strata disputes only. It is anticipated that the Tribunal will begin accepting application for certain low value civil claims, traditionally dealt with in the Provincial Court system, later this fall.

A link to the program can be found here.

If you have an existing Will, that’s a great start. However, as your life changes, so will your estate planning needs. Here are a few of the triggers that should get you thinking about re-doing your Will:

  • If you marry or start a family, you’ll want an estate plan that ensures your loved ones are taken care of after you are gone. An event like a marriage is a great time to re-visit an old Will;
  • If you get divorced you should also re-visit your Will to ensure that it meets your current needs. A divorce is a major life event and a great time to update your estate planning;
  • As your net worth increases, proper estate planning becomes vital. You will need to address tax issues and discuss with your lawyer and accountant the best way to minimize the probate fees and taxes payable, in order to maximize your beneficiary’s inheritance;
  • As you expand your family, a Will is vital to address guardianship and trust funds for your minor children;
  • If you have adult children who are still dependent on you, you can make sure they have financial support for the rest of their lives by setting up a Trust;
  • If you’re thinking of leaving a spouse (including a common law spouse) or child out of your Will, or giving them less than they might reasonably expect, they can make a claim which may result in the Court changing your Will to give your spouse or child(ren) a greater share of your Estate. Be sure to consult with a lawyer on this who will be able to discuss your options with you and create an estate plan designed to minimize these claims.

Reviewing and updating your Will gives you peace of mind that you have cared for your loved ones in the very best way you can!

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or
dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

There has been a lot of discussion in the media, amongst politicians and most likely in your circle of friends recently about the rapid increase in housing prices in B.C. and particularly in the Lower Mainland. There is also a lot of speculation going around that these rapid increases are being fuelled by foreign investors.

The provincial government collected data for just over a month in June and July of this year on where purchasers of real estate are coming from. The results show that foreign nationals invested over $1 billion into B.C. real estate between June 10 and July 14, 2016 and over 86% of that was invested in the Lower Mainland.

So, the province decided to act. As of August 2, 2016, foreign nationals will pay an additional 15% on all purchases of residential real estate in Metro Vancouver, excluding treaty lands of the Tsawwassen First Nation. This is a new category of Property Transfer Tax and will apply in addition to the existing Property Transfer Tax rates of 1% on the first $200,000; 2% on the portion of the fair market value greater than $200,000 and up to and including $2,000,000; and 3% on the portion of the fair market value greater than $2,000,000. Further, this will apply even where the transaction is normally exempt from Property Transfer Tax such as where the transfer is between related individuals, to a surviving joint tenant, etc.

This new category of Property Transfer Tax will apply to individuals who are foreign nationals, trusts where the trustee is a foreign entity or where at least one beneficiary of the trust is a foreign entity, and corporations that are not incorporated in Canada and corporations that are incorporated in Canada but are controlled by foreign entities.
While this new tax will only apply in Metro Vancouver to begin, the province may expand it to apply to additional areas of the province down the road.

Further, there are significant fines and/or potential imprisonment for Real Estate developers who provide incorrect information relating to the new Property Transfer Tax.

The Superintendent of Real Estate in BC is warning developers of these concerns. Under the legislation, an individual who fails to pay the additional Property Transfer tax or who participates in providing incorrect information to avoid the tax could be liable for fines up to $100,000 and/or two years in prison.

At the end of the day, if you are considering purchasing property in Metro Vancouver and you are a foreign individual or entity, you will be liable for a lot more tax after August 2, 2016. If you are hoping for some cooling off of Vancouver’s housing market, it will be interesting to watch the implications of this new tax in the following months.

For more information, please see the Ministry of Finance’s Tax Information Sheet.
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Paul Tonita is a solicitor practicing in the areas of business law, real estate and estate planning. His business experience includes assisting clients right from the beginning by discussing the different business structures and incorporating, buying and selling businesses, assisting with lending or financing needs, drafting and advising on contracts, and providing general advice to business owners.

His real estate practice involves assisting both residential and commercial clients with purchases, sales, financing and leasing.

Paul also assists clients planning for their future with estate and incapacity planning.
For more information please contact Paul Tonita at 250-869-1126 (direct line) or email him at tonita@pushormitchell.com.

In the world of employment law there are “independent contractors” and there are “employees,” and each one has pros and cons from both the employer and employee perspective. The important thing to remember is that there are very different implications of each one, so when you are determining which type of relationship you are entering into you should do so with care.

Let’s start by explaining the difference between an independent contractor relationship and an employment relationship. In an employment relationship, an employer hires an employee and the relationship is subject to employment laws including minimum wage and reasonable notice and severance. In an independent contractor relationship, the independent contractor works for themselves and is hired to perform a specific service. The employment legislation does not apply and instead the only governing law is that of any other contractual relationship.

So, why does this matter? Well, there are a couple of really important differences in the way the courts will treat independent contractors vs. employees. I have already alluded to the first one: that the minimum requirements laid out in the employment standards legislation do not apply to independent contractors. This means that there is no minimum wage that needs to be paid and there is no severance or reasonable notice that needs to be given for termination. This sounds like a bad deal for the independent contractor, however, in most cases an independent contractor can work for multiple parties at the same time and should have negotiated appropriate termination of contract provisions into the agreement.

Secondly, in an independent contractor arrangement, the party retaining the contractor is not required to deduct and remit income taxes or other statutory remittances such as Canada Pension Plan or employment insurance premiums from the payments made to the independent contractor. In this case the independent contractor would be responsible to calculate and remit any amounts owing.

Thirdly, independent contractors will likely not receive any benefits that an employer would otherwise offer employees and may not be covered by the employer’s insurance coverage.

In some cases the determination of whether someone is an independent contractor or an employee is obvious. For example, if I hire a landscaper to come on one occasion and complete some landscaping work on my property this person is obviously an independent contractor. However, the analysis gets much more difficult if I own a commercial property and I hire an individual to continuously look after upkeep of the yard and facility and they do not have any other clients except for me.

In the next article I will discuss the factors that the courts use in determining whether someone is truly an independent contractor or an employee. If you are concerned about the nature of your relationship with a person you have retained or with a person that has retained you, I would recommend speaking with an employment lawyer to assist in making the determination as this can be a complicated analysis and it can have significant consequences for both parties.

This form is a concise list of potential symptoms arising from a brain injury or concussion: Brain Injury Symptoms Form.

Many people involved in accidents often forget to tell their doctors of their symptoms of potential brain injury or concussion. They, and or their doctors, often focus primarily on the physical symptoms only, and sometimes do not look at the cognitive issues. Symptoms arising from a brain injury or concussion can vary, from being subtle to serious and disabling.

It is vitally important for anyone sustaining a possible brain injury or concussion realize what their symptoms are, and let their health care providers know as soon as possible. This will do two things. It will allow their health care providers to properly treat their symptoms. It will also ensure the symptoms are properly recorded in their doctors medical charts.

Having their symptoms recorded in the doctors medical charts will help to avoid ICBC, or the insurance company, to later deny the person has a brain injury or concussion. They may say “ if you did not tell your doctors after the accident, the symptoms are either not true, or they are unrelated to the accident.”

After an accident always make sure you advise your doctors of all your post-accident symptoms, including both physical and cognitive.

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Paul Mitchell, Q.C. is a BC personal injury lawyer who has extensive experience with brain injury claims. He has settled many multi-million dollar brain injury claims. He acts for the brain injured all over BC, and will not act for ICBC or any other insurance company.

Paul was a founding Director of BrainTrust Canada (Central Okanagan Brain Injury Society), and was on their board for over 25 years. He has presented at numerous brain injury conferences, including the Okanagan Conference on Brain Injury, and the BC Brain Injury Conference in Vancouver. He is also the author of many articles and publications on brain injury.

For more information on brain injuries, or for a confidential discussion of your brain injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

A friend of mine recently came to me with a hot stock tip that he was sure was going to make us both a lot of money. It seems that his employer, ABC Corp., was in the advanced stages of negotiations to sell itself to XYZ Corp. My friend was encouraging me to invest in ABC Corp. before the acquisition was publically announced on the expectation that ABC Corp.’s stock price would rise on the announcement of the sale to XYZ Corp. and I could make a quick buck.

While this may sound like a great opportunity, I unfortunately had to tell my friend that investing in ABC Corp. would be a breach of securities laws and that both he and I were prohibited from acting on the information of the impending sale. I also had to tell him that by sharing the information concerning the potential sale with me, he likely had already breached Canadian securities laws.

Securities legislation in Canada prohibits anyone in a “special relationship” with a reporting issuer (for purposes of this article, a reporting issuer is a company that has its shares listed for trading on a stock exchange) from purchasing or selling securities of the reporting issuer with knowledge of a material fact or material change about the company that has not been generally disclosed. This prohibited activity is known as “insider trading”.

Securities legislation also prohibits a reporting issuer and any person or company in a special relationship with a reporting issuer from informing, other than when it is necessary in the ordinary course of business, anyone of a material fact or a material change before that material information has been generally disclosed. This prohibited activity is commonly known as “tipping”. It is important to note that the definition of “special relationship” is broad and there is a potentially infinite chain of tippees who are caught by the prohibitions against tipping and insider trading. Because tippees are themselves considered to be in a special relationship with a reporting issuer, material information may be third or fourth hand and still be subject to the prohibitions under securities laws.

As a result of his employment with ABC Corp., my friend was in a special relationship with the company. The fact that ABC Corp. was pursuing a sale of the company to XYZ Corp. was material information that had not been generally disclosed. My friend’s decision to share that information with me was not only an infraction of securities laws, but also served to place me in a special relationship with ABC Corp. such that I could not purchase or sell shares of the company nor share the information of the impending sale with anyone else until the material information had been generally disclosed by ABC Corp.

The policy rational behind the insider trading and tipping rules is founded in the principle that it is fundamentally unfair for someone to use access to non-public information to improperly gain an edge on the market. So, the next time you receive a hot stock tip from a friend, you may wish to consider if acting on that tip will put you offside securities laws.

Throughout this article, I have used the terms “material fact” and “material change”. These terms are defined by applicable securities legislation as a fact or change relating to a company that significantly affects or would reasonably be expected to have a significant effect on the market price or value of any of the company’s securities.

I have also used the term “generally disclosed.” Securities legislation does not define the term “generally disclosed,” but court decisions indicate that information will generally be deemed to have been generally disclosed if: (i) the information has been disseminated in a manner calculated to effectively reach the marketplace; and (ii) the public investors have been given a reasonable amount of time to analyze the information.

Examples of Potentially Material Information:

The following is a non-exhaustive list of the types of events or information which could be material:

Changes in Corporate Structure:

  • changes in share ownership that may affect control of the company
  • major reorganizations, amalgamations, or mergers
  • take-over bids, issuer bids, or insider bids

Changes in Capital Structure:

  • the public or private sale of additional securities
  • planned repurchases or redemptions of securities
  • planned splits of common shares or offerings of warrants or rights to buy shares
  • any share consolidation, share exchange, or stock dividend
  • changes in a company’s dividend payments or policies
  • the possible initiation of a proxy fight
  • material modifications to rights of security holders

Changes in Financial Results:

  • a significant increase or decrease in near-term earnings prospects
  • unexpected changes in the financial results for any periods
  • shifts in financial circumstances, such as cash flow reductions, major asset write-offs or write-downs
  • changes in the value or composition of the company’s assets
  • any material change in the company’s accounting policy

Changes in Business and Operations:

  • any development that affects the company’s resources, technology, products or markets
  • a significant change in capital investment plans or corporate objectives
  • major labour disputes or disputes with major contractors or suppliers
  • significant new contracts, products, patents, or services or significant losses of contracts or business
  • significant discoveries by resource companies
  • changes to the board of directors or executive management, including the departure of the company’s CEO, CFO, COO or president (or persons in equivalent positions)
  • the commencement of, or developments in, material legal proceedings or regulatory matters
  • waivers of corporate ethics and conduct rules for officers, directors, and other key employees
  • any notice that reliance on a prior audit is no longer permissible
  • de-listing of the company’s securities or their movement from one quotation system or exchange to another

Acquisitions and Dispositions:

  • significant acquisitions or dispositions of assets, property or joint venture interests
  • acquisitions of other companies, including a take-over bid for, or merger with, another company

Changes in Credit Arrangements:

  • the borrowing or lending of a significant amount of money
  • any mortgaging or encumbering of the company’s assets
  • defaults under debt obligations, agreements to restructure debt, or planned enforcement procedures by a bank or any other creditors
  • changes in rating agency decisions
  • significant new credit arrangements

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Keith Inman is a securities and M&A lawyer with broad experience in the capital markets. Keith regularly advises individuals and companies with respect to securities reporting and compliance matters, purchases and sales of businesses and other corporate/commercial matters. You can reach Keith at 250-869-1195 or by email at inman@pushormitchell.com

The high costs of litigation and the long delays to have a matter heard in court have raised serious concerns with respect to access to justice in Canada. This challenge can be felt particularly acutely with somebody who has recently been wrongfully dismissed from their employment. While the common law may tell us that a terminated employee may be entitled to receive several more months compensation for their termination than what their employer is offering, often the high cost of litigation require the worker to accept less than they deserve.

But what if someone can have their day in court without the time and expense of trial and discoveries? In many wrongful dismissal cases, a summary judgment application may provide just that.

What is a summary judgment application?

Summary judgment applications are used in cases where there are few material differences in fact between the plaintiff and the defendant. In these instances, the plaintiff can ask the court to make a decision on questions such as liability and damages without having to proceed through to a full trial of the issues.

Unlike a regular trial, witnesses do not normally testify in a summary trial. Rather, evidence is presented by way of a sworn affidavit. This saves considerable court time, as legal counsel will spend the majority of their time presenting arguments, rather than examining and cross-examining witnesses.

How can a summary trial be used in a wrongful dismissal?

Many wrongful dismissal cases are particularly well-suited for summary judgment applications, particularly if the employer is not alleging just cause for the termination.

Take a company restructuring where an employer has to terminate a worker. There’s no question of liability (the company recognises that they have terminated the employee without cause) and the primary question in dispute is how much severance the worker is entitled to.

In a case such as this, the essential questions of fact (such as the employee’s age, tenure, position, education and experience) will not be in dispute. Rather than attending to a full trial, the employee can ask the court to decide summarily on damages and on whether he or she has made reasonable efforts to find alternate employment.

What are the advantages of a summary judgment application?

There are three major advantages in applying for a summary judgment for a wrongful dismissal:

1. Costs. Many lawyers work on an hourly basis. If legal counsel is required to prepare and attend to an examination in discovery, review lists of documents and conduct a 5 day trial, legal fees can easily be several tens of thousands of dollars.

2. Time. To run through the full litigation system and have your day in court normally takes over a year for a relatively simple trial. For a family that has recently lost a major revenue source, that can be a devastating wait. By comparison, a summary judgment application can happen any time after the close of pleadings. Take, for example, the recent case of Luchuk v. Starbucks Coffee Canada Inc., 2016 BCSC 830. Mr. Luchuk was terminated on November 20, 2015 and had his summary trial heard and decided on March 4, 2016, about 3.5 months later.

3. Cash in hand, sooner. In most wrongful dismissal cases, there is a requirement on the employee to make reasonable efforts to find comparable employment. If the employee finds comparable employment, they have “mitigated” their loses, and the damages awarded to them are offset by any new income the employee receives. In the Starbucks case referenced above, Mr. Lachuk was awarded 17 months wages less than 4 months after he was terminated. If Mr. Lachuk finds a new job tomorrow, he still gets to keep every dime. If he wants to backpack South America for two months, he can do that without having to worry that he is “failing to mitigate.”

Conclusions

In Hryniak v. Mauldin, our Supreme Court of Canada recently emphasized the need for timely and affordable access to justice, and to this end, the summary judgment rule promotes this ambitious objective well.

While summary trials are well suited to many wrongful dismissal cases, they are not always appropriate. If you have recently lost your job, make sure to consult an employment lawyer and ask whether a summary judgment application is an option.

It is settled law that an employee who is wrongfully terminated is entitled to “reasonable notice” which can be working notice or compensation in lieu of notice. Determining the notice period depends on a variety of factors including age, length of service, and certain characteristics of the job. Further, the wrongfully terminated employee faces a “duty to mitigate” (or duty to minimize) her damages by actively seeking alternate employment.

Interestingly, the events following termination of employment do not affect an employee’s entitlement to notice. This includes the situation where an employee is terminated and shortly thereafter becomes ill or disabled.

Our courts have dealt with this situation by suggesting a longer notice period may be warranted because the employee may find it more difficult to find alternate employment.

With respect to the duty to mitigate, an ill or disabled employee is generally entitled to wait until they have recovered before starting a job search. In one case, an employee who became seriously ill during the notice period stopped looking for work to focus on her health. The Court held that she had met her duty to mitigate and that there was no duty to continue trying to mitigate once she became ill.

In the end employers may face a greater obligation for notice or severance pay for an employee who becomes unable to work or look for work after her termination. One way of reducing exposure to this risk is by the use of an employment agreement or by negotiating a settlement with the employee before or upon termination of employment.

When a purchaser borrows funds to purchase real property (i.e. land and any buildings or structures attached to the land), most arm’s length lenders will require a personal promise to repay the funds, as well as some interest and expenses. Typically, the lender will also require some additional commitments to give that personal promise to pay some “teeth.” This additional protection for the lender will usually include the borrower granting the lender a limited interest in the purchased lands. The nature and extent of the interest in the land granted, including the borrower’s obligations to the lender and the lender’s rights if the borrower defaults on these obligations, are outlined in a legal document called a mortgage. The mortgage is registered on title to the property when the property is transferred to the borrower when the purchase completes.

Default events will usually include nonpayment of payments when due, allowing unauthorized charges to be registered on title, not paying property taxes or failing to maintain and protect the property. Upon default, the lender will send a notice of default and demand, as well as any additional appropriate notices such as notice under the Bankruptcy and Insolvency Act or the Farm Debt Mediation Act. If payment of all arrears, interest and legal expenses are not paid upon demand (or the full amount of the mortgage paid if the term has expired), then the lender will be in a position to prepare, file and serve documents to commence a foreclosure. If the borrower or any other persons with an interest in the land subsequent in priority to the lender wants to oppose any relief sought in the foreclosure, or just be notified of each Court date in the foreclosure, then that person or business will need to file a Response and serve it on the lender and other parties.

The first Court appearance in a foreclosure is the Order Nisi, which is actually considered a final order in the foreclosure. Generally, the lender will seek personal judgment against the borrower at the Order Nisi hearing, based on the personal promise to pay. The lender will also seek other terms of the Order, such as the length of the redemption period, the amount required to redeem and legal costs. Legal costs are usually ordered at the lowest level of Court costs in BC, particularly for unopposed Foreclosure proceedings.

The redemption amount is the amount of the principal, interest and expenses that the borrower will need to pay the lender to payout the mortgage and stop the foreclosure. The usual length of the redemption of a residential property will be set at six (6) months, unless the lender can show risk to its security that would warrant a shorter redemption period (such as insufficient equity in the property to repay the lender in full, abandonment or waste).

If the borrower does not redeem before the end of the redemption period set at the Order Nisi hearing, then the lender may elect to return to Court to seek either an Order Absolute or an Order for Conduct of Sale. In a relatively recent development in foreclosure practice, a lender can now actually obtain conduct of sale at the Order Nisi hearing that will be effective at the end of the redemption period without the necessity of a further court application.

An Order Absolute basically involves the property being transferred to the lender as the new owner. Usually the borrower or subsequent lenders will oppose the Order Absolute if there is convincing evidence of equity. However, if an Order Absolute is granted and there is a shortfall for the lender, then the lender will not be able to try to recover any shortfall on the personal judgment from the borrower after the Order Absolute. In addition, the lender will have to pay the property transfer tax on the transfer of the property to the lender. In many cases the lender will not elect to seek an Order Absolute.

When the lender decides not to pursue an Order Absolute, then the lender can still apply to the Court for an Order for Conduct of Sale at the end of the redemption period. An Order for Conduct of Sale allows the lender to list and market the property through a realtor. The borrower will be ordered to cooperate with the listing. The lender will be able to entertain and accept offers, subject to any accepted offer still requiring Court approval. The usual practice is for Offers to have a schedule attached to the Contract of Purchase and Sale specifying that the property is being purchased “as is” without any warranties as to the condition of the property. At an application for Court Approval of Sale, the Court will need to be satisfied that the offer before the Court reasonably represents fair market value in the current market at the time of the application. If the sale is approved, then the dates for completion and vacant possession will be set out in the order. A certified copy of the Order Approving Sale will serve as the transfer document at the Land Titles Office, as opposed to a Form A transfer signed by the borrower. After the sale completes, the lender will report to the Court on the funds recovered from the sale. If the amount of the lender’s legal costs cannot be agreed, then the lender may apply to have the Court assess legal costs owing. Any surplus will be paid into Court, unless otherwise agreed by all parties. If there is a shortfall for the lender, then the lender will be in a position to try to recover the balance of any judgment against a non-bankrupt borrower.

Foreclosures can be complicated, especially when there are competing charges registered on title or disputes about amounts owed or market value of the property. The process for competing bids on an application for Court approval of a sale can also be complex for parties not familiar with the process.

If you are involved in a situation involving default under a mortgage or a foreclosure, then you should seek legal advice to protect your interests. Book a consultation by calling 250-869-1170 or email ledding@pushormitchell.com.

Many people have life insurance, and naming a beneficiary or beneficiaries on that life insurance policy is usually enough, especially if the beneficiaries named are over 19 and are responsible enough to receive that money. Our generation (28 – 45ish) being the couples with young children are for the most part very well insured.

Given the amount of life insurance these young couples have, I like to prepare Life Insurance Trust Declarations for these clients, which set out Trusts for minor or young adult beneficiaries, instead of relying on the insurance company designation forms which do not provide for more sophisticated estate planning. It is difficult to defer the age at which a child gets full control of the life insurance proceeds to an age later than the age of majority (19) without a Life Insurance Trust Declaration.

Do you want your child to potentially have control over hundreds of thousands, possibly millions, of dollars at age 19?

As with any Estate Planning, there are circumstances where Life Insurance Trust Declarations will not be appropriate for clients, but it usually suits couples with young children very well.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

Since 2005, the real estate industry has been self-regulated by the Real Estate Council. The Council is made up of 16 members, including members appointed by the provincial government. The Council has a broad mandate which includes licensing, relicensing, education, compliance and discipline.

After a recent report from an Independent Advisory Group (IAG), Premier Christy Clark has decided to put an end to the present model, replacing the Real Estate Council with a Superintendent of Real Estate who will take over the Real Estate Council’s regulatory duties.

There will be other changes too. Premier Christy Clark announced that she will adopt all of the recommendations in the IAG’s report. These include putting an end to dual agency; increasing maximum fines for misconduct; closer scrutiny of license applicants; and requiring offers received on a real estate transaction to be filed and retained for potential review.

For further information, please see: https://news.gov.bc.ca/releases/2016PREM0074-001180

A restrictive covenant is a class of legal “promise” imposing a restriction on one party for the benefit of another. When drafted correctly, restrictive covenants are an invaluable tool to protect your business.

There are three main types of restrictive covenants:

  • Non-competition agreements;
  • Non-solicitation agreements; and
  • Confidentiality agreements.

The most demanding are the non-competition agreements because they preclude the contracting party from engaging in a business that competes with the business of the other party. In the employment context, non-competition agreements are frequently used to prevent a departing employee from immediately setting up a business that is in competition with the employer.

Non-solicitation agreements allow competition, but control the manner of competition. They preclude a contracting party from competing by soliciting business from or through the clientele, employees or suppliers of the other contracting party.

Lastly, confidentiality agreements place limits on the disclosure of certain information and are often used in conjunction with non-competition or non-solicitation agreements. They can help preserve intellectual property, client information, trade secrets and strategy.

The problem we most often encounter with restrictive covenants is enforceability. Restrictive covenants are considered to be in “restraint of trade” and therefore difficult to enforce unless implemented correctly and properly drafted. A properly drafted restrictive covenant is reasonable, specific, clear and limited in scope.

In our upcoming presentation The Art of Restraint: Using and Enforcing Non-Competition Agreements, we will address how to use restrictive covenants effectively to protect your business.

In British Columbia s. 59 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (the “Act”) essentially requires that contracts dealing with the “disposition” of land be proven to be enforceable.  The simplest way to do so is by putting the contract in writing.  Failing to do so may result in a contract that is not enforceable.

S. 59 requires a little bit of unpacking to understand. “Disposition” is not defined in the Act, but is defined in Black’s Law Dictionary, 7th ed. as “The act of transferring something to another’s care or possession…” This includes the sale, assignment or lease of lands. S. 59 does not capture certain land transactions including those related to trusts, disposition further to a will, leases or 3 years or less or a guarantee or indemnity arising be operation of law or imposed by statute.

Subject to these exceptions, for a contract concerning land to be enforceable a party must establish any of the following 3 things:

  1. that the contract is in writing, is signed by the party to be charged with the contract, indicates that a contract has been made and provides a reasonable indication of the subject matter of the contract;
    • generally, the subject matter includes two of the “3 Ps” of real estate transactions: price and property description with the third P, the parties, evidenced by the execution of the agreement;
  2. that the party to be charged with the contract to have done an act or acted in a manner which is not inconsistent with the contract in question; or
    • “not inconsistent” is not the same thing as “consistent” as it is not sufficient for a party merely to act as though the contract was made, their conduct must not act in a manner which suggests they disagree with the contract in order to establish an enforceable contract
  3. that the person alleging the contract has done something in reliance on the contract that would make it unfair for the other party to later deny the contract.

Allout Salvage & Auto Wreckers Ltd. v. Nanaimo Auto-Save Sales & Service Ltd., 2015 BCSC 2057 (CanLII) is an interesting recent decision in which the plaintiff attempted to establish the existence of an enforceable land contract in order to seek specific performance of that contract (later, the plaintiff sought only damages).

In the case, the plaintiff alleged that it had reached an oral agreement with the defendant to lease a property for 5 years. The defendants alleged that the only agreement reached was for a month to month lease.  The issues between the parties arose as a result of the defendants providing the plaintiff with a 1 month notice to end the plaintiff’s tenancy.  If the lease was for 5 years, the notice given by the defendants would have been improper.

In order to obtain any relief, it was the obligation of the plaintiff to prove that there was a 5 year lease. Since the lease alleged by the plaintiff was for 5 years s. 59 of the Act was triggered and the plaintiff was required to prove there was an enforceable lease in accordance with s. 59.

After finding setting aside issues concerning the alleged lease being entered into prior to the incorporation of the plaintiff and issues with conflicting evidence, the Court summarized the pith and substance of the case at para. 20: “Either there was an agreement to lease on a month-to-month basis or for a renewable five year term.”

The Court held that there was sufficient evidence to establish what was being leased and that the documentary evidence indicated that there was an oral, month-to-month contract. Speaking more specifically to s. 59 of the Act, the Court found that there was no document in writing that could establish the lease, there was no indication that the plaintiff had done any acts which were would indicate the existence of a 5 year lease rather than a month to month lease and the plaintiff’s nominal efforts to improve the lease property were not sufficient to establish it had materially changed its position in reliance on the existence of a 5 year lease.  The Court dismissed the claim accordingly.

The moral of Allout Salvage & Auto Wreckers Ltd., supra, is that it is far simpler for a party to prove an enforceable contract concerning land where the contract is in writing and signed.  Attempting to prove a contract per s. 59 of the Act on any other permissible basis is an uncertain exercise and will likely be difficult, costly and time consuming.  There are very few scenarios in which a party is better served by not committing a contract to writing with the assistance of competent legal counsel.

Jeremy Burgess is a litigation associate at Pushor Mitchell with experience in contractual and real property disputes and is able to assist you in your litigation matters.

If you have any questions about contractual or real property disputes, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.comOur solicitors are also well versed in drafting land contracts.  Please feel free to contact any of them in a confidential manner through our toll free number, 1-800-558-1155.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

At some point in your life, you have undoubtedly heard someone threaten to sue someone else. Often times, the comment is made by an aggressive person and they might even refer to a lawyer friend or relative telling them what a strong case they have. If you have ever been on the receiving end of that kind of threat, then you may even felt intimidated and uncertain how to respond. So called “slam dunk” cases are a bit like unicorns and someone who thinks they have such a case is likely overly confident or doesn’t understand our legal system. A little knowledge can be a dangerous thing and people often file claims that are doomed to fail. If you do ever find yourself involved in a dispute that you don’t think should be in Court, then there are typically a few issues to consider.

Basically, almost anyone can file a claim suing someone else. However, that does NOT mean that they have a legal basis for their claim, much less a strong claim that is likely to succeed. However, some people with relatively weak legal positions will still sue for a variety of possible reasons, including bully tactics, bluffing, not understanding Canadian and BC law or, finally, the infamous “principle of it”. With respect to the final possible reason for suing based on principle, most experienced lawyers will generally tell their clients that principles can be very expensive. Often, after people actually experience the expense, time and uncertainty that can be associated with a civil legal claim, principles alone become much less of a compelling motivation to commence or continue a lawsuit.

Talk is cheap, but litigation often isn’t. It is pretty easy for someone to threaten litigation. It is also easy to suggest that they have obtained or will be able to obtain legal advice from a lawyer that they know for no cost. However, most lawyers don’t represent neighbours and acquaintances for free. Giving legal advice and going to court is how litigators make a living. Further, the neighbour lawyer talking over the fence to the other side likely wasn’t told all the relevant facts, much less necessarily have knowledge or experience in the particular area of law involved. When push comes to shove, a person that has threatened to sue may find that they are not actually going to get free legal representation, at least beyond the initial chat with their neighbourhood lawyer acquaintance.

Disputes worth under $25,000.00 must be brought in small claims, unless any amount over that $25,000.00 limit is abandoned. Further, some types of claims must be started in the Supreme Court of B.C., such as enforcing a builder’s lien claim. Whether a claim has to be brought in Supreme Court is important, because, parties bringing unsuccessful or ill-conceived claims in Supreme Court can generally be held responsible for paying the other party’s court costs. In small Claims Court, costs are usually limited to out of pocket expenses and filing fees, but not legal costs or lawyer’s fees. In Supreme Court, the unsuccessful party will also typically have to contribute to legal costs. Although court costs in Supreme Court typically only represent approximately one third of a successful party’s actual lawyer’s expenses, they can certainly still add up quickly. Court costs are intended in part to encourage parties to realistically consider settlement of disputes prior to trial.

In summary, almost anyone can threaten to sue someone else and file a court action. However, that doesn’t mean that there is a reasonable legal basis to sue, much less that the claim is likely to succeed. People who sue unsuccessfully can risk having to pay some of the other side’s legal costs, in addition to their own lawyer’s costs. Importantly, our legal system in Canada is not much like how the justice system is portrayed on American news, Matlock or Judge Judy. If you are facing the prospect of a disputed court claim, whether suing or being sued, it is likely worthwhile to get some good legal advice before things progress too far. Obtaining some objective initial advice about how the law could be applied to your situation can potentially save you a lot of future expense and stress.

Effective July 1st 2016 the Government of Canada will issue a new Canada Child Benefit (“CCB”) to replace the current Canada Child Tax Benefit (“CCTB”) and the Universal Child Care Benefit (“UCCB”).

The CCB is a non-taxable benefit that will be paid monthly to custodial parents and is based on adjusted family (or single parent) net income and the number of children in the family. The maximum benefit is $6,400 per child for children under the age of 6 and $5,400 per child aged 6 to 17. The maximum benefit is achieved where family net income is less than $30,000. The benefit starts to decline when income goes above $30,000 and further erodes when income exceeds $65,000.

Generally, benefits under the new CCB will be higher for Canadians with incomes of approximately $150,000 or less. It is only when the recipient’s income exceeds $150,000 that the new CCB benefits drop below the old CCTB/UCCB levels. It is noteworthy that the CCB will automatically be shared between the parties in shared custody situations. Each eligible parent will get 50% of the payment that he/she would have received if the child lived with him/her all of the time. There is no option to change this, even if both parents agree.

Parents should also note that effective the Government of Canada has reduced the Child’s Fitness credit to $500 and the Child’s Art Credit to $250 in 2016 and will eliminate both of these credits entirely in 2017.

In the case of Jozsa v. Charlwood-Sebazco, 2016 BCSC 78 (CanLII) the Plaintiff, Mr. Jozsa, was a very experienced landscape designer hired by Ms. Sebazco to complete landscaping at her home.

Mr. Jozsa claimed a builders’ lien against Ms. Sebazco’s property on the basis that he had completed work at Ms. Sebazco’s home and some $86,360.00 was owed for work he had already completed and taxes not paid on previous invoices.

Ms. Sebazco counterclaimed alleging 47 deficiencies, failures to perform certain parts of the contract between the parties and negligent construction. The failures and her interactions with Mr. Jozsa were alleged to cause Ms. Sebazco mental distress. Ms. Sebazco also made various allegations for missing items and improper repairs.

For his part, Mr. Jozsa alleged that he agreed to repair a number of the so-described deficiencies, but that Ms. Sebazco refused to allow him on the property to address the deficiencies. The work that Mr. Jozsa didn’t complete was eventually completed by third parties for about $84,400.00.

There were a number of unusual contracts entered into by the parties, the meaning of which was in dispute. The Court resolved each of these contracts in favour of Mr. Jozsa and found that Ms. Sebazco had paid all the amounts owing under these contracts but the $86,360.00 claimed by Mr. Josza.

Ms. Sebazco was unable to consistently articulate what deficiencies she was alleging existed and attempted to raise new allegations of deficiencies at trial. Her primary witness was misinformed about the scope of work undertaken by Mr. Josza and it became clear to the Court that Ms. Sebazco was attempting to lay blame on Mr. Josza for work he never undertook to complete and essentially was seeking to recover for a different renovation than Mr. Josza was hired for.

The common law imputes an implied condition into all construction contracts that the owner will not prevent a contractor from accessing the worksite. Where an owner denies a contractor access to the worksite, he or she is repudiating the contract, thereby releasing the contractor from any obligations under the contract which would include completing work and repairing deficiencies.

In other words, by depriving Mr. Jozsa the opportunity to remedy his work, Ms. Sebazco was depriving herself of the right to seek damages for the defective work. Generally, if an owner is dissatisfied with a contractor’s work, the appropriate course of conduct is to document the deficiencies, make a demand for the contractor to address the deficiencies and allow the contractor reasonable and necessary access to make the repairs. Likewise, a contractor should proceed with construction in a good and workmanlike fashion, properly document their construction and properly document and address any allegations of deficiencies by an owner.

Although not discussed in Jozsa v. Charlwood-Sebazco, a contractor’s work may be so negligent or the relationship between the contractor and owner may be so spoiled that an owner may be relieved from their obligation to allow the contractor to return to the worksite to complete their repairs as it would be unreasonable to impose any obligation on the owner to allow the contractor to continue its work.

With only some minor exceptions, the Court found that the deficiencies alleged would have been completed by Mr. Jozsa had his contract not been prematurely terminated by Ms. Sebazco refusing to allow him entry to the worksite. As a result, the Court accepted virtually all of Mr. Josza’s claims and rejected virtually all of Ms. Sebazco’s claims. Ms. Sebazco was ordered to pay $81,488.00 plus costs.

It is notable that the Court held that a contract-breaker is generally not liable for any distress, frustration, anxiety or aggravation which the breach may cause to the innocent party and that the law does not award damages for frustration and anger as often arise in the context of contractual disputes.

Jozsa v. Charlwood-Sebazco is illustrative of the important of properly documenting the contractual relationship between an owner and a contractor. It reaffirms some of the complicated common law concerning when a contractor and owner may get into disputes about whether work is deficient and demonstrates that certain steps taken without proper legal advice or consideration, may deny a party’s ability to recover for or defend their claims later on.

Jeremy Burgess is a litigation associate at Pushor Mitchell with experience in construction disputes and is able to assist you in your litigation matters. If you have any questions about any construction disputes whether as potential plaintiff or defendant, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our construction law group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

A 10-year analysis of approximately 3,000 malpractice complaints and settlements involving surgical “incidents” in Canada has just been released by the Canadian Medical Protective Association.

It is entitled Surgical Safety in Canada:A 10-year review of CMPA and HIROC medico-legal data.

The report provides a rare glimpse into potentially avoidable — and sometimes catastrophic — harm occurring in the nation’s operating rooms.

The report lists communication breakdowns, “absent, sparse or illegible” documentation and failures to follow system safety checks among the factors contributing to surgeries gone wrong

The analysis involved 1,583 cases from the Canadian Medical Protective Association (CMPA) — the Ottawa-based body that defends doctors accused of malpractice — between 2004 and 2013, and 1,391 cases handled by the largest liability insurer for Canadian hospitals and their employees.

Overall, about one-third of the cases resulted in severe harm to patients, from devastating injuries such as major organ damage or paralysis, to death.

A landmark 2004 Canadian study estimated that at least 70,000 cases of preventable medical errors occur each year in hospitals, with more than half attributable to surgery. I

In the U.S., medical error is now the third-biggest cause of death, behind cancer and heart disease, according to a newly published study that estimates 250,000 Americans are killed annually by medical care “gone awry.”

As National Post writer Sharon Kirkey writes, “Medical error leading to patient death is under-recognized in many other countries, including the U.K and Canada,” the researchers, from the Johns Hopkins University School of Medicine in Baltimore, report in the British Medical Journal.

The new Canadian surgical review doesn’t include obstetrics-related cases. It also excluded class-action suits to avoid “weighting” an issue. In addition, an investigation by the National Post’s Tom Blackwell revealed only a fraction of errors are ever reported by staff internally.

Most involved non-cancer, non-trauma surgery. The top five sites for surgical mishaps were the uterus, gallbladder, colon, muscles of the chest or abdomen (hernia repair) and breast.

The analysis examined incidents that occurred before, during and after an in-hospital surgical procedure. The average patient age was 49. Most (76 per cent) were relatively healthy going into surgery.

Experts who reviewed the cases were critical of the care provided in half of them.

Harm to patients ranged from death to lacerations, punctures, infections, hemorrhage and burns.

Results

  • The analysis identified 1,583 CMPA and 1,391 HIROC
    medico-legal cases involving an in-hospital surgical
    incident.
  • Peer expert reviews identified system and provider issues
    in 53% of CMPA and 49% of HIROC surgical incidents;
    no criticism was documented in 42% and 25% of these,
    respectively. Table 1, below, illustrates the categories of
    contributing factors in which issues were identified.
  • Almost two-thirds of cases involved non-oncology/
    non-trauma repairs or excisions (e.g. inflammation and
    infection). Trauma-related care represented 12% of
    CMPA and 3% of HIROC datasets. Oncology-related
    cases represented 14% of CMPA and 8% of HIROC
    datasets.
  • Patient harm (i.e. physical and psychological outcomes)
    involved injury to organs, blood vessels or nerves;
    wrong surgery (wrong body part, patient, procedure);
    unintended retained foreign bodies; hemorrhages;
    or burns.
  • Retained foreign bodies or wrong surgery were identified
    in 12% of CMPA and 18% of HIROC surgical incidents.
  • Severe patient outcomes, including death and
    catastrophic harm, were identified in 32% of CMPA and
    39% of HIROC surgical incidents.
  • The most common system issues included inadequate,
    lack of, and/or non-adherence with a surgical safety
    protocol (e.g. surgical safety checklist).
  • Most incidents occurred during the intra-operative
    phase.
  • Neurosurgeons and orthopaedic surgeons had the
    highest incidence of cases per 1000 CMPA members.
    Anaesthesiologists were involved in 4% of CMPA surgical
    incidents. Residents were involved in 4% of CMPA and
    1% of HIROC surgical incidents.

See the full CMPA report here:
Surgical Safety in Canada: A 10-year review of CMPA and HIROC medico-legal data

______________________________________________________________________

Paul Mitchell, Q.C.is a BC personal injury lawyer who has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, death claims, ICBC claims, medical malpractice claims, and other catastrophic injury claims.

Paul has successfully concluded BC medical malpractice cases for amounts up to 3.5 million in individual cases.

He acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.

For more information on this article, or for a confidential discussion of your injury claim, contact Paul Mitchell, Q.C. 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

A Health Care Directive allows you to state your decisions in writing regarding your future healthcare treatments in the event you are unable to communicate them, such as consenting to or refusing life support or life sustaining medical care.

These directions must be followed by your healthcare provider, as long as they are aware of them. A Health Care Directive does not appoint anyone to make health care decisions for you. If a decision must be made and the situation was not addressed in the Health Care Directive and you do not have a Representation Agreement, your healthcare provider will make reasonable effort to appoint a Temporary Substitute Decision Maker to make decisions on your behalf if you cannot (which may not be the person who you would have chosen to act for you).

A Representation Agreement allows you to appoint a person to make decisions on your behalf should you be unable to communicate your healthcare wishes in the future. The person or person(s) you appoint must follow the wishes that you expressed while capable. This gives you control over who will be acting on your behalf in relation to your health care.

A Representation Agreement is a much more sophisticated incapacity planning document as it is not simply an expression of wishes in relation to consenting to /refusing treatment; it allows you to plan for the following, for example:

  • Who you would like to make your health/medical/personal care decisions for you in the event that you are incapacitated?
  • What types of heath care treatments you would consent to or refuse if a healthcare provider has recommended them?
  • Under what circumstances would you consent to or refuse these types of treatments?
  • What type of extended health care facility would you prefer to live in, in the event that you are unable to be cared for at home?

While a Health Care Directive is certainly better than nothing, and will deal with “worst case scenario” situations if you have an upcoming surgery for example, but a Representation Agreement is definitely recommended as the preferred health care planning document, especially given the increased periods of incapacity that the older generation is facing, due to Dementia or Alzheimer’s for example.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

The new wills legislation in BC, the Wills, Estates and Succession Act, SBC 2009, c 13 (“WESA”) came into force on March 31, 2014. WESA establishes certain formal requirements for a will to be considered valid, as well as a curative provision for a will that does not satisfy the formal requirements.

Formal Validity

The “formal requirements” set out in WESA, at s. 37, are summarized below:

  1. it must be in writing;
  2. it must be signed at its end; and
  3. it must be properly witnessed.

Under the pre-WESA regime, a will that did not meet the formal requirements for validity was considered invalid and that was the end of the inquiry. One of the interesting features of WESA is the curative provision in s. 58, which allows the Court to “cure” a record, document or writing or marking on a will or document that does not satisfy these formal requirements.

Section 58: The “Curative Provision”

In order for s. 58 to apply, the Court must be satisfied that the instrument in question represents:

  1. the testamentary intentions of a deceased person,
  2. the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
  3. the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

Now that s. 58 has been in force for over two years, we have some guidance from our Courts as to how it applies.

Case Law Applying s. 58

In Re Young Estate, 2015 BCSC 182, Madam Justice Dickson looked to other provinces’ wills legislation, noting that s. 58 of WESA is most similar to Manitoba’s equivalent (The Wills Act, CCSM c W150, at s. 23).

After canvassing the Manitoba case law, Dickson J. observed that the inquiry for a s. 58 application is “inevitably and intensely fact-sensitive” and requires the court to consider the following:

  1. The threshold question: is the document authentic?
  2. The core question: does the document represent the deceased’s testamentary intentions?

With respect to the “core question”, Dickson J. provided the following guidance:

35 …The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time, which will vary depending on the circumstances.

36 The burden of proof that a non-compliant document embodies the deceased’s testamentary intentions is a balance of probabilities. A wide range of factors may be relevant to establishing their existence in a particular case. Although context specific, these factors may include the presence of the deceased’s signature, the deceased’s handwriting, witness signatures, revocation of previous wills, funeral arrangements, specific bequests and the title of the document…

37 … the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention…

In Beck Estate, 2015 BCSC 676, an executor of a will brought an application for determination of whether handwritten alterations to a will and codicil represented the testator’s testamentary intentions. Master B.M. Young (as she then was) found that the wording “Codicil to my last will” and the words “To be read out by My Lawyer, Mr. Mote” satisfied the criterion for showing a deliberate or fixed and final expression of intention. However, the alterations to the testator’s will, which consisted of an interlineation changing the word “codicil” to “Codicil Enclosed” were not sufficiently clear to meet the test under s. 58.

In Re Yaremkewich Estate, 2015 BCSC 1124, the deceased left an envelope with the words “Will of Denise Lynn Bevan Yaremkewich” written on the outside of it, in the deceased’s handwriting. The envelope contained a will and three separate documents – a handwritten list of bequests titled “Bequests (Personal)”; a handwritten list of charitable bequests titled “Charitable Bequests”; and care instructions for the deceased’s dog, titled “Jake Bevan (the dog)”.

With respect to the will, Madam Justice Watchuk found that it satisfied the requirements under s. 58 because the “detailed wording of the Will and its attachments, and the circumstances in which they were found” militated in favour of a determination that the will was valid, based on the following:

  1. evidence from witnesses who indicated that the deceased was contemplating specific bequests at the time that she arranged for witnesses to her will;
  2. the deceased was ill at the time she made her will and wanted to put her affairs in order;
  3. the deceased used a will template rather than an ordinary piece of paper;
  4. the four documents in question were treated as important by being placed in an envelope and marked as the deceased’s will;
  5. the deceased attempted to comply with the formalities of making and executing a will, by signing and dating it at the end and initialling many of the pages and by having two witnesses sign;
  6. the deceased appointed executors;
  7. many of the provisions are detailed and well thought out, such as the appointment of a lawyer as an alternate executor, the making of alternative gifts if certain beneficiaries predeceased her, and bequests to minors not being made until they reach the age of 21;
  8. there were no changes or markings in the documents that could suggest they were merely drafts or were not meant to be fully effective; and
  9. there was no evidence to the contrary or suspicious circumstances.

Watchuk J. was satisfied that the documents were authentic and had been written by the deceased.

With respect to the two lists of bequests, Watchuk J. found that it was likely that the documents were created around the time of the will. Since the will form that the deceased used was only three pages long and she filled in nearly all of the blank space provided in the template, the deceased needed to include additional pages. In the will itself, the deceased referred to attachments and then placed all of the documents together in an envelope titled “Will of Denise Lynn Bevan Yaremkewich”. Given the context, Watchuk J. held that the deceased intended for the lists to operate alongside the will. Both of the lists were held to be testamentary in nature and therefore met the requirements of s. 58.

On the other hand, the care instructions for the deceased’s dog were determined not to be testamentary and not within the curative power of s. 58.

In Re Lane Estate, 2015 BCSC 2162, Mr. Justice Pearlman was faced with multiple handwritten notes that had been found throughout the deceased’s house. Although the notes were authentic, they did not satisfy the threshold for testamentary intent. Pearlman J. stated:

48 … I give particular weight to the absence of any witnesses, the fact that all of the notes were made on scrap paper, the absence of any express revocation of the Will or the gift of one-half of the residue to Ms. Alsop, the lack of any evidence the deceased had any rational basis for disinheriting Ms. Alsop, and indeed the lack of any evidence that the deceased ever turned her mind to how the wishes she expressed in the notes would affect her earlier testamentary dispositions.

In Re Smith Estate, 2016 BCSC 350, Madam Justice Fleming applied s. 58 to cure three separate documents representing testamentary intent. The deceased had met with her son and spouse prior to her death to discuss her will. She presented them with three handwritten documents entitled “The Will of Lorraine Smith”, dated 2008; “The Final Will and Testament of Lorraine Smith”, dated 2011; and “Funeral Arrangements”. Fleming J. was satisfied the documents recorded a “deliberate or fixed and final expression of the deceased’s intention regarding disposal of her property on death”, based on the following factors:

  1. the presence of the deceased’s signature on each document;
  2. the titles of the documents;
  3. the contents of the documents (a list of personal items to specific beneficiaries and specific distribution of her real property on the event of her death);
  4. the documents are expressed in language conveying an “air of finality”;
  5. the fact that the deceased met with her son to discuss her will and presented him with the documents, advising that she had drafted the documents herself and that she had signed the first two;
  6. the deceased met with her granddaughter (the applicant) and asked her to be the executor;
  7. the deceased advised the applicant that all of the necessary documents would be found in a funeral box she had prepared and after her death the applicant found the documents in the funeral box; and
  8. there were no other documents setting out the deceased’s testamentary intentions.

Most recently, s. 58 was considered in Re Hadley Estate, 2016 BCSC 765. In 2008, the deceased had her lawyer prepare a will (referred to in the decision as the “2008 Will”). In 2014, the deceased had drawn up another will in her journal, purporting to change the 2008 Will (referred to in the decision as the “2014 Will”).

There was no question that the 2008 Will satisfied the formal requirements and could constitute a valid will without applying s. 58. However, the 2014 will purported to alter the 2008 Will and Madam Justice Adair was faced with the question of which of the documents constituted the deceased’s true will (or if both applied together).

Adair J. considered a wide range of factors, including how close the 2014 Will came to satisfying the formal requirements for a valid will and the circumstances surrounding the deceased’s drafting of the will. After weighing all of the factors, Adair J. concluded that the 2014 Will did not represent a “deliberate and final expression” of the deceased’s testamentary intention:

[59] In reaching that conclusion, I place particular weight on the following factors.

[60] Ms. Hadley did not disclose the existence of the 2014 Will to anyone. In her dealings with both Ms. Smith and Mr. Walker, she communicated that she wished to make changes to her 2008 Will. She did not say anything to either of them to the effect that she had already made a new will. Ms. Hadley’s notes on the original and copy of the August 28, 2014 letter, expressing a desire to make a new will, are inconsistent with the 2014 Will representing her testamentary intentions. Ms. Hadley knew what was involved in making new a will, and she expected to communicate the changes she wanted to make to a lawyer, who would prepare a new will for her. The changes (unlike the contents of the Journal) were not going to be kept secret. She took steps to make an appointment with Mr. Walker in respect of changing her 2008 Will. For Ms. Hadley, the contents of the Journal were quite different from a will. They were notes only to herself. Finally, Ms. Hadley had a very large estate, one that could certainly accommodate generous gifts to Mr. Macdonald and Mr. Pierce, without completely disinheriting the beneficiaries (other than Ms. Maziak) under her 2008 Will. [Emphasis in Original]

The 2014 Will appeared to be a set of instructions (perhaps even draft instructions that would ultimately be changed) which the deceased intended to provide to her lawyer who would prepare a new will. In the result, the 2008 Will governed and the 2014 Will was not “cured” by s. 58.

Conclusion

As illustrated by the case law, s. 58 does not attempt to re-introduce holograph wills or the old “napkin will”. The closer an instrument comes to satisfying the formal requirements for a valid will, the greater the chances a Court will apply s. 58 to “cure it”.

Although s. 58 can prevent the situation where a testator’s intentions are defeated simply because of a mere failure to satisfy all of the formal requirements, relying on s. 58 is risky because the outcome of such applications is uncertain. Neither s. 58 nor any other provision in WESA can replace a solid estate plan.

Your lawyer can work with you to prepare an estate plan that carries out your testamentary intentions; prevents the need for judicial intervention to determine your wishes; and maximizes your estate value by minimizing tax liability and probate expenses.

When meeting new clients one of the most frequent questions asked is: Am I legally separated?

At the end of a marriage or common law relationship, typically one spouse moves out of the family home. However sometimes the parties will keep living under the same roof for financial reasons or to make it easier for the children. Under the law in BC a physical separation is not required so long as there is clear intention to end the relationship. This intention can be shown by opening separate bank accounts, sleeping in separate rooms, separately performing household chores, and stopping socializing together. The decision to separate may be mutual but it does not need to be.

Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, I recommend my clients record the date separation occurred and send an email to the other spouse confirm the separation date.

It is important to note that under Canadian income tax laws, parties are required to live separate and apart for 90 days before they will be considered separated. Once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.

Under the Family Law Act the date of separation is a very important date for married and common law spouses because the separation date is the date that:

  • each spouse’s one-half interest in the family property crystallizes,
  • the spouses stop accruing family property and debt and begin accumulating their own personal property and personal debt,
  • starts the limitation period within which common law spouses must apply for division of family property and debt (for married spouses time runs from the date of the divorce),
  • starts the limitation period within which common law spouses must apply for spousal support. (for married spouses time runs from the date of their divorce).

My clients often ask me to obtain a “legal separation” for them. In British Columbia there are no special legal documents to file in court and there is no such thing as a “legal separation.” Separation is achieved by one spouse clearly communicating their desire to be separated and when the spouses begin acting separated. However what most people really mean is that they want a “separation agreement”. A skilled family law lawyer will assist in negotiating a resolution of the legal issues arising from the breakdown of the relationship and drafting a Separation Agreement.

A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative with the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. This is a vital Estate Planning document to have in place.

It gives your Representative the legal right to refuse specific medical treatment or any treatment at all on your behalf.

If you do not have a Representation Agreement and you are incapable of making health care decisions for yourself, the current legislative framework allows a health care provider to appoint a person to make those decisions for you on a temporary basis and with a very limited scope of authority (nowhere near the scope a Representation Agreement has). The substitute decision maker can only make certain decisions regarding health care and a Committee will be required for personal care once any health crisis is passed. The decisions made by the substitute decision maker may not be the same as the choices you would make if you were able.

So, a Representation Agreement is a wonderful tool to enable you to have a say in your health care, once you can’t anymore – because you’ve appointed people you love and trust to take on that role, who are guided by your decisions and wishes because you signed the document. So, you are directing them – even when you can’t.

That being said, a Representation Agreement does not give your Representatives the legal right to hasten your death. They can “pull the plug” if you are being kept alive by a machine, but what if you’re not on life support? People with Alzheimer’s or Dementia can live quite healthily for decades, there is no machine to switch off. I often have clients say “If I ever get severe Dementia, pull the plug.” The problem is – there is no plug to pull. Similarly with some terminal cancers, the patient can be living in pain for several years.

With the introduction of the “Assisted Dying Legislation” (Bill C-14) the debate around health care decision makers and euthanasia has never been more rampant. Even though the debate is vivid, my opinion is that very few people will actually jump on the bandwagon to hasten their own death if this Bill does come into force, simply because they just won’t want to address that possibility – it’s easier to black it out and leave it up to fate. It is an extremely difficult conversation to have. So it is much easier to avoid. Que Sera Sera.

That being said, families can be torn apart by these types of end of life decisions, but if you guide them during your lifetime through formalized documentation, you can avoid their turmoil and take away their guilt when that difficult time comes.
This Article is less about whether Bill C-14 should or should not become law, it is about planning for health care, appointing decision makers and putting a plan in place for your end of life care.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

It likely comes as no news to most readers reading that social media is simultaneously a minefield or a gold mine for any litigation matter. As people increasingly share every facet of their lives through social media, they often unwittingly produce a nearly limitless source for potential evidence and liability.

Recently, in Pritchard v. Van Nes, 2016 BCSC 686 (CanLII) the British Columbia Supreme Court issued a sobering judgment reminding everyone of the real world consequences our digital lives can have.

The Plaintiff, Mr. Pritchard, had an acrimonious relationship with his neighbour, Ms. Van Nes. Their neighbourly quarrels were relatively ordinary as was, seemingly, Ms. Van Nes’ decision to take to social media to “vent” her frustrations (her words). What is less ordinary, is how Ms. Van Nes chose to vent.

After Mr. Pritchard had installed a decorative mirror at his property and took photographs and videos of Ms. Van Nes’ dog and water feature (which he was complaining of), Ms. Van Nes fired up her Facebook and published two photographs of Mr. Pritchard’s backyard with the following words superimposed over the pictures: “My neighbour has mirrors hanging outside his home…Doug also videotapes my kids in the backyard 24/7! Well Doug … Meet my mirror!”

It is important to note that the Court was very clear that Mr. Pritchard was not videotaping Ms. Van Nes’ children, did not install the mirror to spy on Ms. Van Nes and had installed no video surveillance equipment. The Court found that the allegations against him by Ms. Van Nes were completely false and unjustified.

Along with the photographs, Ms. Van Nes’ Facebook post included allegations that Mr. Pritchard was videotaping Ms. Van Nes’ 4 young daughters, that Mr. Pritchard’s behaviour was not normal adult behaviour and that he was stalking and/or obsessed with Ms. Van Nes’ children and suggested that Mr. Pritchard’s behaviour was a red flag for the school district he worked for.

Ms. Van Nes’ post was up for 27.5 hours and prompted 57 comments (9 of which were Ms. Van Nes’ responding). The comments by Ms. Van Nes and her friends included further allegations and insinuations of paedophilia and other misfeasance and variously referred Mr. Pritchard as a “pedo, “creeper, “nutter”, “freak”, “scumbag”, “peeper” and “douchebag”.

Importantly, one of Ms. Van Nes’ friends shared the post and indicated that he would share his concerns with Mr. Pritchard’s supervisor. The friend then went on to share the post with the school principal along with a letter indicating that Mr. Pritchard was a “potential paedophile” and suggesting that “kids may be in danger” (which the Court found was logically connected to the insinuations made and encouraged by Ms. Van Nes).

Despite the post only being up for a limited time, Mr. Pritchard testified to it having a deleterious effect on his career and enjoyment of life. He withdrew from his participation in school extra-curricular activities, grew anxious in interacting with students, felt reluctant to continue with his career and stated that he had encountered a number of situations where parents expressed distrust in him or withdrew their children from his programs.

The Court had little sympathy for Ms. Van Nes suggesting that she was only expressing her own frustrations and took particular note of that the nature of social media is to proliferate a poster’s comments and content. Ms. Van Nes’ Facebook page was open to the public and capable of virtually unlimited access as a result.

The Court found that Ms. Van Nes was liable for defamation on three bases.

First, Ms. Van Nes was liable for the publication of the original Facebook post on the basis that her “…remarks, by their ordinary and natural meaning taken together, and by innuendo, were defamatory in meaning that Mr. Pritchard was a paedophile and was unfit to teach.” (para. 74). Her further comments only reconfirmed these insinuations.

Second, Ms. Van Nes was liable for the repetitions and republications of her defamatory remarks. The Court took judicial notice of the fact that Facebook is a platform designed for users to redistribute posts from their friends. Ms. Van Nes had reasonable notice from her friend’s comments that he would reproduce her post and further notice from the notification of the sharing of her post. She did nothing to prevent the redistribution.

Thirdly, Ms. Van Nes was liable for the defamatory comments of her friends. The Court found these comments to be defamatory and noted that such were reproductions and offshoots of the comments made by Ms. Van Nes and were further encouraged and reaffirmed by Ms. Van Nes. Mr. Van Nes did not seek to correct or dissuade the defamatory statement of her friends, but implicitly and explicitly reaffirmed them. Ms. Van Nes knew her defamatory statements were being spread and built upon and did nothing to stop it.

In the result, the Court awarded $50,000.00 for the defamation and $15,000.00 for punitive damages.

Many questions arise out of the case such as whether the same liability might be found with a “private” Facebook account, if Facebook’s present platform does a better job at removing deleted comment from others’ “walls” or the effect where the original poster discourages further commenters’ defamatory conduct; however, the message is clear: assume that if you post anything on social media which is defamatory, you may be liable for same. Your exposure to liability only increases as your friends share or comment on your posts.

Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential defamation claim, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

Section 1 of the Builders Lien Act, S.B.C. 1997, c. 45 (the “Act”) defines an “owner” as anyone with a legal or equitable interest in land. This means that landlords, tenants, or others may be “owners” of the land for the purposes of the Act. This also means that there may be more than one “owner” of the land for the purposes of the Act.

Section 3(1) of the Act provides that a builders lien attaches to an owner’s interest in land if he has prior knowledge of the work, even if he does not request it. This means, for example, that a lien claim may be filed against an owner’s interest in the land because his tenant failed to pay for improvements to its leased space. The landlord may know that work is being undertaken on the land, but he may not foresee that his tenant would not pay for the work. While a lien claimant must establish that the owner “knew” about the work, the test for establishing such knowledge is easily met unless the owner truly did not know that the work was being, or would be, undertaken on the land.

Fortunately for “owners”, the Act provides a means of protection from liability for unauthorized work by allowing “owners” to file a “notice of interest” in the Land Title Office of British Columbia. The notice of interest would appear on a title search for the lands and notify others that the owner’s interest in the land would not be bound by a lien claim unless the work was undertaken at the express request of the owner. The latter qualification is an important counterbalance in favour of lien claimants and precludes an owner from relying on a notice of interest where he has requested the work in question. Our courts have interpreted the phrase “express request” very strictly such that lien claimants’ arguments that the terms of lease documents which contemplate or authorize certain work are, at best, implied requests and do not nullify the effect of a notice of interest.

An “owner” who wishes to avoid lien liability for unauthorized work should consider filing a notice of interest.

Borrowers grant security interests in their property to lenders as a condition of financing every day. Security interests are property interests, created by agreement, over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets. Most people grant a security interest in their homes in the form of a mortgage.

British Columbia implemented a system that allows parties to register security interests over another person’s personal property (property other than real estate). The British Columbia Personal Property Security Act (“PPSA”) governs the rules and operation of the system. Personal property is found in many different and unique forms, (from your car lease to a milk quota). As a result the PPSA is very complex and careful attention is required to ensure security interests and property are protected.

Although complex, the PPSA provides borrowers with the ability to leverage their personal property to obtain lower financing rates. Businesses would be less willing to accept orders without full payment in advance if they could not obtain security in the goods being sold. Next time you renew your car lease appreciate that the lease payment would be much higher if a security interest could not be granted in the leased vehicle.

A security interest may be granted by the parties signing a security agreement with an accurate description of the parties, the personal property subject to the security interest (referred to as collateral) and the financial or other obligation owed to the secured party.

A secured party that has been granted a security interest receives only limited protection unless and until the secured party registers their security interest using a financing statement. A successful registration must be in the correct form, have the full legal name of the borrower, correctly describe the collateral and provide for an adequate registration term. Errors in the financing statement’s descriptions of the borrower or the collateral often invalidate the registration leaving the secured party with limited protection. Something as simple as the incorrect spelling of a borrower’s name can invalidate your registration.

The British Columbia personal property registry does not offer generic boxes to describe collateral and generic descriptions such as “Equipment” or “Inventory” are generally insufficient. To complicate the registration process further the serial number of certain goods is required at times. Secured parties must be diligent to ensure the correct description of the property subject to the security interest is provided.

The basic rules of the priority system for the preferential rights of security interests are:

1.  a registered security interest takes priority over an unregistered security interest; and

2.  the first (in time) registered security interest takes priority over subsequently registered security interests.

The general rule is to ensure that you register first. Before you register, or agree to take a security interest from a borrower in exchange for granting a loan, search the personal property registry to ensure that the borrower has not already granted a security interest.

Although the personal property registry is complex your legal counsel can ensure that your financial interests are fully protected.

If you require advice on securing your financial interests against a borrower, please contact a member of the Pushor Mitchell LLP team.

For years, non-status Indians and Metis individuals have been trapped in a jurisdictional game of hot potato between provincial governments and the Federal Government, often leaving those individuals ineligible for programs and assistance. Now, the jurisdictional question has been resolved by the Supreme Court of Canada in the decision Daniels v. Canada, and non-status Indian and Metis individuals finally have a clear ruling that the Federal Government has jurisdiction.

The Daniels case was brought as a request for three declarations. The first concerned whether the Federal Government had jurisdiction over non-status Indians and Metis as part of its jurisdiction over “Indians” in the Constitution. The other two dealt with the fiduciary obligations of the Crown, and will be further discussed later in this article.

In finding that the Federal Government had jurisdictional responsibility for non-status Indians and Metis, the Supreme Court of Canada had stern words. The Court referred to these communities as being in a “jurisdictional wasteland with significant and obvious disadvantaging consequences.”

The Court also ruled that there need not be consensus on who is considered Metis or a non-status Indian in connection with the question of jurisdictional responsibility. Particularly, the court found that acceptance by an individual by the modern Metis community is required to establish federal jurisdiction.

There were two other declarations before the court: the first regarding whether the Crown owes a fiduciary duty to non-status Indians and Metis, and the second whether the Crown has a duty to consult. The court declined to grant both of these declarations on the basis that they would be a restatement of existing law. This means, although the court declined to make the declarations, the court clearly confirmed that the legal principles stated in those declarations had been previously decided by the Supreme Court of Canada in other cases.

Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrea at 250-869-1245 if you would like assistance.

A drunk and unruly passenger is still “using” the vehicle, even if he is (thankfully) not driving it. This is good news for designated drivers, whose intoxicated passengers don’t always pass out like a light on the way home and sometimes interfere with the DD’s otherwise safe driving. As long as the intoxicated person is a passenger with the owner’s consent, or is a member of the owner’s household, the passenger is an “insured” and ICBC will indemnify him for losses that he causes.

In Felix v ICBC, 2015 BCCA 394, Ms. Felix’s boyfriend got drunk and argumentative after a soccer game, and Ms. Felix drove them both home. On the way, her boyfriend grabbed the steering wheel causing a collision in which he was killed and Ms. Felix seriously injured. Ms. Felix successfully sued her boyfriend’s estate, and asked ICBC to cover the $863,242 in damages and costs on the basis that her boyfriend was an ‘insured.’ Section 64 of the applicable regulations* define an “insured” as “an individual who, with the consent of the owner or while a member of the owner’s household, uses or operates the vehicle described in the owner’s certificate.” Ms. Felix owned the vehicle, and her boyfriend was a passenger with her consent. He was not operating the vehicle, but was he “using” it?

The legislative scheme was meant to provide a universal, compulsory insurance program and access to compensation for those who suffer losses from motor vehicle accidents. As such, and based on other legislative contexts in which the word “use” had been considered, the Court found that the concept of “use” is broadly defined. The Court held that being a passenger in a motor vehicle is an “ordinary and well-known” use of a vehicle, and a passenger uses a vehicle when he is being transported from A to B. This is true whether or not the passenger grabs the steering wheel or is simply passed out in the back seat. If the passenger causes a collision in any way, ICBC will indemnify him for those losses.

The Supreme Court of Canada recently refused ICBC’s application for leave to appeal this decision, making the BC Court of Appeal’s decision the law of the land in our province. This decision should provide comfort to designated drivers and others who accept the risks of transporting intoxicated and sometimes unpredictable passengers, making our streets safer.

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*Section 64 of the Revised Regulation (1984), BC Reg 447/83 under the former Insurance (Motor Vehicle) Act, RSBC 1996, c.231

At one time or another, strata councils inevitably have to deal with questions or issues raised by its members relating to conflicts of interest. The definition of a conflict of interest is simple, but identifying whether a conflict of interest in fact exists can be more difficult to determine. A conflict of interest arises when a council member has a direct or indirect interest in a contract, transaction, or any matter that could result in the creation of a duty or interest that would conflict with their own personal interests.

One of the most common types of conflicts relate to claims of financial gain received by one of its members. It is a common misconception that a council member who has any personal interest or receives some form of personal gain is in violation of the rules. This is not always the case. The true nature of the problem arises when that member fails to disclose their interest in the mater. The Strata Property Act requires council members to disclose all conflicts of interest. So long as that member fully discloses their interest before a decision is made by the strata council, and that member has not participated in the decision-making process, he or she will have complied with the rules.

So how can a strata council protect itself from issues relating to conflicts of interest?

First, have a clear understanding of what constitutes a conflict of interest. Secondly, draft language into the bylaws that sets out the precise nature of what constitutes a conflict and have mechanisms in place for how these types of matters will be addressed.

Here are two provisions worth including in your own bylaws:

1.  A perceived conflict of interest is a conflict of interest.

Import a larger meaning as to what constitutes a conflict. Any perceived conflict, whether real or imagined, will be deemed a conflict and accordingly restrict that member from being a party to that particular transaction or initiative.

2.  A financial interest is a disqualifying conflict of interest

Simply put, where the risk exists that a member may have any direct or indirect financial interest, they are immediately disqualified. No exceptions.

Together these two clauses will assist in limiting exposure relating to member(s) potential for personal gain balanced against their larger obligations to act honestly and in the best interest of the strata corporation.

In addition, consider appointing a chair or committee of members tasked with reviewing all disclosed conflicts and have that committee report their findings to all members. The key is transparency, for it achieves a measure of accountability as it pertains to the matter in hand, but it also imports predictability to the process and educates other members as to what constitutes a true conflict of interest.

While the threat of conflict of interest cannot be entirely mitigated, a clear set of bylaws will certainly afford an increased measure of accountability and predictability. Unquestionably, bylaws that incorporate specific conflict of interest protections are the best way to limit any potential conflicts of interest before they arise. If your own strata bylaws do not explicitly address conflict of interest, a prudent strata council would be well advised to consider legal counsel to revise their own bylaws to include these types of provisions.

Everyone should have a valid Will in place. If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes. Your Will is the legal instrument that allows you to appoint an Executor/Trustee of your choice. Wouldn’t you prefer to appoint close family members or friends to take care of the administration of your Estate when you are gone? Much better than a stranger.

In BC, anyone over the age of 16 can make a Will. It used to be age 19 (pre-March 2014 legislation). The old legislation provided that a person only acquires “testamentary capacity” at age 19, which is the age of majority. There was an exception for minors who were married or for persons on military service or mariners – they were allowed to make Wills even if they were under 19.

Now, anyone 16 or over can make a valid Will. There are numerous benefits to this, such as unmarried minors can also have children, so it is much better to allow any minor of potentially child-bearing or child-fathering age to make a Will. Further, the type of work the minor is engaged in shouldn’t matter. There are many dangerous jobs that 16 year olds could be doing – not just military service. Minors who work in other dangerous jobs (e.g., mining or forestry etc.) should also be able to make Wills.

Not to mention, minors often own valuable assets such as vehicles. Minors may be beneficiaries to other estates, which can be very complicated if that minor does not have their own Will. Dealing with these assets on death is infinitely easier if the assets pass under a Will.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com Vanessa is a long time Lake Country resident who practices in the area of Wills and Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

Employee recruitment, and particularly recruitment for highly competitive positions, often requires a certain amount of salesmanship on the part of recruiters, and companies looking to land a sought-after employee may tote company culture, compensation and other benefits of employment as part of their recruitment strategy.

Of course, all of this is fair game. However, as one recent BC Supreme Court decision illustrates, recruiters also need to be careful that everything they are presenting to potential candidates is honest and accurate. As one Vancouver tech company recently found out in Feldstein v. 364 Northern Development Corporation, 2016 BCSC 108, being over-zealous and under-cautious in promises to candidates can lead to a negligent misrepresentation lawsuit and thousands of dollars in damages.

The Facts

Mr. Feldstein was a highly qualified computer programmer. He had a university degree, a successful resume and a happy family. He also had serious health challenges, having been diagnosed with cystic fibrosis at the age of 9. Despite his very serious illness, Feldstein led a relatively normal life, although he was on a waiting list for a double-lung transplant.

Given his medical diagnosis and that at some point in his future he expected to require long term disability benefits, Feldstein was very particular about the employers he applied to. In fact, Feldstein made clear at trial that as a result of his condition, he would not accept employment unless it offered sufficient and appropriate LTD benefits and that coverage would not be contingent on the absence of any pre-existing health conditions.

When Feldstein applied with 364 Northern Development he immediately impressed his recruiters. He was open about his disability and candidly disclosed that he would occasionally need time away for medical treatment. Ultimately, he was offered a job with 364, but before accepting it Feldstein said that he would need to review the company’s benefit plan.

The LTD brochure 364 provided to Feldstein stated that coverage of $1000 a month was available to all employees, and that benefits in excess of $1,000 a month (based on salary) were available upon “Proof of Good Health”. Given Fledstein’s medical condition, this was clearly a concern. When he asked a senior manager with 364 for clarification as to what this entailed, he was told that “Proof of Good Health” related to the three-month waiting period needed in order to have the plan in effect. Feldstein understood this to mean that working at 364 for three months, without illness, would constitute “Proof of Good Health” for the purposes of obtaining LTD benefits under the 364 plan, notwithstanding his pre-existing condition or the lack of a medical exam or completed health questionnaire. As he found the explanation to be credible and satisfactory, Feldstein felt that there was no need to make any further inquiry.

Approximately one year after his initial hire, Feldstein experienced a significant decrease in lung capacity. In the months that followed, Feldstein made inquiries with his LTD provider in preparation for his anticipated lung transplant and disability leave. Eventually, Feldstein was approved for LTD, but only up to the “non-evidence maximum” of $1,000 a month. Feldstein was denied any additional LTD (valued at an additional $3,700) because he failed to complete a health questionnaire when enrolling for the program at the time of hire.

As one may expect, Feldstein was furious. Not only did 364 fail to provide him the necessary enrolment forms, but they misled him with respect to his admissibility under the LTD plan. Feldstein filed a lawsuit for negligent misrepresentation against 364, seeking compensation for the benefits he was denied under the LTD policy.

Law of Negligent Misrepresentation

To prove the tort of negligent misrepresentation, there is a well-established 5-step test:

1.  Is there a duty of care based on a “special relationship” between the representor and representee?

2.  Is the representation in question inaccurate, untrue, or misleading?

3.  Did the representor act negligently in making that representation?

4.  Did the representee rely, in a reasonable manner, on that representation?

5.  Did the representee incur damages as a result of that reliance?

In this case, all of the 5 requirements for negligent misrepresentation were met. There was clearly a relationship between 364 and Feldstein which gave rise to 364’s duty of care when performing any acts that could foreseeably cause harm. It was also clear that the information presented to Feldstein by 364 was inaccurate or misleading.

When considering the standard of care that 364 was held to, the judge stated:

The applicable standard of care requires that Mr. Nizker, in making representations to Mr. Feldstein in the context of the hiring process, took such reasonable care as the circumstances required in order to ensure that the representations he made were accurate and not misleading.

I have no difficulty in finding that Mr. Nizker’s conduct fell below the requisite standard of care.

In making this finding, the court found that 364 negligently made the misrepresentations.

While Feldstein also clearly relied on the misrepresentation, the most interesting part of this decision was the damage assessment. After all, even if 364 had not made the misrepresentation, Feldstein wouldn’t have qualified for the LTD plan.

In assessing damages, the court accepted that Feldstein would not have accepted employment with 364 had he known that he did not qualify for extended LTD coverage. He would have continued his job search until he found an employer with an LTD plan that met his needs. To this end, the court assessed damages not based on what Feldstein expected to received with 364, but what Feldstein would have received at another employer. As a barometer, the court used the benefit coverage provided by Feldstein’s previous employer to assess damages.

In the end, the court awarded Feldstein $2,082.43 for 40 months, or approximately $83,000. The court also awarded Feldstein $10,000 in aggravated damages for the “extraordinarily distressing” disruption to Feldstein’s “carefully laid plans”.

Takeaways

In many ways, this case speaks for itself. While employers are encouraged to actively and aggressively pursue top talent, they must be guarded in overselling their company and in making promises to prospective employees. In this case, the lawsuit could have been avoided if the 364 manager had simply said “let me look into that for you” or “here’s a customer service line with our benefit provider.” Presenting information as fact when it clearly was not created a significant and unnecessary liability for the company.

Building contracts sometimes arise from an invitation to tender. Usually, an owner or contractor (sometimes called the “tendering authority”) will issue an invitation to tender, and a contractor or subcontractor (as the case may be) may respond by offering to carry out the work on certain terms and conditions. Historically, strict compliance with the terms of the invitation were required in order for (a) any obligations to arise among the tendering authority and the responding parties, (b) a responding party’s tender to be “compliant” with the terms of the invitation and thus capable of acceptance by the tendering authority.

In recent years, the requirement for strict compliance with the requirements of the invitation has been relaxed by the courts’ approval of the use of “privilege clauses” which may allow the tendering authority to (a) evaluate tenders on factors other than price alone and/or (b) accept tenders which do not strictly comply with the terms of the invitation.

In M&G Logging & Sons Ltd. v. British Columbia (Forests, Lands & Natural Resource Operations), 2015 BCCA 526 (“M&G”), the British Columbia Court of Appeal held that the substitution of the name of related company in place of the intended bidder rendered a bid non-compliant and thus incapable of acceptance by the tendering authority. This was so even though the tendering authority (a) initially notified the bidder that its bid was accepted, and (b) seemingly knew of the mistake in bidder’s name.

In M&G, the principal of M.G. Logging & Sons Ltd. (“Sons”) bid on a timber licence (the “Licence”) auctioned by the Province of British Columbia’s Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). The invitation to tender stated that only a registered BC Timber Sales Enterprise (“BCTSE”) could bid for the Licence. Every BCTSE has its own registration number with the Ministry. When submitting the bid, Sons’ registration number was used but the name of the applicant was identified as “M.G. Logging Ent. Ltd.”, which was another company owned by the principal but was not a registered BCTSE.

The Ministry initially awarded the Licence to Sons but then told Sons it could not award the Licence to Sons because its bid was non-compliant. Sons sued the Ministry alleging, among other things, that the ambiguity in its bid could be resolved by looking to the circumstances surrounding the preparation and evaluation of its bid. Sons was successful in the Supreme Court of British Columbia. The Ministry appealed and argued that the judge in the Court below should have considered whether the bid was compliant before considering whether the ambiguity in the bid could be resolved by examining the surrounding circumstances.

The appeal was allowed. The Court of Appeal held that the judge in the Court below should have determined whether the bid was compliant with the invitation to tender before seeking to resolve the ambiguity. The Court noted that there was no “privilege clause” in the invitation to tender which might allow the Ministry to consider non-compliant bids. To the contrary, the invitation stated that bids must comply with the terms of the invitation. The Court of Appeal remarked that “[d]isregarding that framework designed to protect the integrity of the tendering process”…“to do what may seem reasonable in a particular case would beget uncertainty and unfairness in the tendering process” and would not be fair to other compliant bidders.

It is interesting to consider the outcome of this appeal had the invitation to tender included a privilege clause. The judge at the Supreme Court level was of the view that the Ministry knew which company was the intended bidder. If there had been a privilege clause, it would have been difficult for the Ministry to reject the bid after having accepted it without exposing itself to liability for damages for breach of contract.

As previously reported, the new Societies Act was slated to come into effect in British Columbia sometime in 2016. We now have an exact date to share with our readers. Save the Date because on November 28, 2016 the re-vamped Societies Act will come into effect.

For information about what your society will need to do in order to transition from the old Act to the new, or for answers regarding the impact that the new Act will have on pre-existing societies and what changes can be expected, please contact the lawyers at Pushor Mitchell LLP. We’re here to help.

Many people find themselves building a home or making major renovations to their home during their lifetime. Too often, people mistakenly assume that because the home or renovations are done in accordance with architectural plans and within the requirements of the applicable municipality or district, that the home or renovations are sound.

In Little v. North Columbia Construction Ltd., 2015 BCSC 2441 (CanLII) the Plaintiff, Mr. Little, had hired the Defendant, North Columbia Construction Ltd. (the “Contractor”), to construct a snow roof for his mobile home.

The Contractor built the roof in accordance with the architectural design plans, specifications and recommendations of the local municipality. For its part, the Contractor enjoyed a good reputation, had good education and had 15 years’ experience. The local municipality inspected the roof twice and approved its construction.

The Contractor subcontracted work to a third party, Habitech Designs Services (the “Subcontractor”). The Subcontractor had discussions with the municipality’s building inspector in which the building inspector insisted that cross-bracing be added to the roof despite plans being approved for construction without the cross-bracing and such bracing not being required for approval on inspection. The Contractor resisted, in part, on the basis that neither the municipality nor the building code required cross-bracing and, as such (the argument went), the installation of cross-bracing was not necessary for the Contractor to satisfy its construction obligations.

Unfortunately, when snow came, Mr. Little’s roof collapsed. The expert opinion accepted by the Court concluded that the lack of cross-bracing was the proximate cause of the collapse and that the BC Building Code did not adequately address the failure to properly consider structural resistance to lateral loads which was at the heart of the collapse.

The Court rejected the Contractor’s defences, finding that the Contractor was ultimately responsible for the decision to construct the roof in a manner which ignored the necessity of installing cross-bracing.

The Court further found that the Contractor breached its contract with Mr. Little by failing to build a snow roof that was structurally sound knowing that Mr. Little was relying on the Contractor’s skill and judgment in building the snow roof.

Little v. North Columbia Construction Ltd. is illustrative of the fact that municipal building inspectors are generally only required to satisfy themselves that building is occurring in compliance with the minimum requirements of the building code and applicable bylaws. Generally, municipalities are not responsible for ensuring that any higher standard of construction is applied. Despite having approval from the municipality and appearing to satisfy applicable minimal legislative building standards, the roof was still constructed negligently and failed.

Little v. North Columbia Construction Ltd. illustrates that it is important for people to hire competent contractors and to hold those contractors accountable for constructing components in a good and workmanlike fashion. Home owners should be made aware of and keep themselves aware of each subtrade working on their home.

If a contractor or their subcontractors are not constructing a home in a manner which appears appropriate, it is important for the home owner and contractor to have discussions about expectations and the home owner should consider whether they wish to continue their relationship with the contractor. It is important for home owners, contractors and subcontractors to document construction progress and any discussions among each of them concerning the progress and standards of construction expected and executed in the event that issues with construction are discovered down the road.

Although beyond the scope of this article, it is also important to note that if construction required municipal approval is completed in a manner which falls below the minimum standards of the building code and applicable bylaws, there may be grounds to name the municipality in a lawsuit; however, the Local Government Act provides a very finite window in which to put the municipality on notice of the potential suit, failing which, the action against the municipality will be statute-barred. It is important for homeowners to immediately seek legal assistance if they suspect there are issues with their home if a municipality may be named in the potential suit.

Jeremy Burgess is a litigation associate at Pushor Mitchell with experience in construction defects and is able to assist you in your litigation matters. If you have any questions about any construction defects whether as potential plaintiff or defendant, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our construction law group.

The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

On Thursday May 12th, 2016 Pushor Mitchell presents the Okanagan Symposium on Brain Health, presented by Brain Trust Canada, at the Laurel Packinghouse – 1304 Ellis Street, Kelowna, BC.

This is Brain Trust Canada’s leading education event, and will be an interactive learning experience for professionals, caregivers and individuals living with brain injury.

“Brain injury has been labelled an epidemic. It is the leading cause of death and disability under the age of 44,” explains Paul Mitchell Q.C., Partner with Pushor Mitchell LLP.

“Our firm has seen firsthand the devastating toll that brain injury takes on individuals and families, and the significant social costs that can impact society. Through our work with personal injury cases over the years, we have developed a clear understanding of the importance of preventative education as well as support for individuals and families who live with the outcomes of brain injury each and every day. We applaud the work of BrainTrust Canada in bringing these important messages to the community each year through the excellent range of speakers gathered at this annual conference. We are pleased to be the Title Sponsor of this conference, which we believe offers something for everyone who attends – regardless of their affiliation.”

BrainTrust Canada is a progressive community rehabilitation organization dedicated to maximizing independence for individuals with brain injury and also to reducing preventable brain injuries through education and prevention.

The theme of the symposium is “Brain Health – How to Use your Brain to Live a Healthier Life

Keynote Presenters:

Dr. Stephen Kiraly – a Psychiatrist who has conducted research and published in the field of neuroendocrinology, with a special interest in mild traumatic brain injury as it affects the aging brain. He will review what is good and bad for the brain, comparisons from latest research, and how that applies especially to those with a history of brain injury.

Dr. Peter Reiner – Professor and co-founder of the National Core for Neuroethics, and a member of the Department of Psychiatry at the University of British Columbia. His presentation will highlight the tools to enhance cognitive function, as well as domains of cognition that we may or may not wish to enhance.

Dr. Teresa Liu-Ambrose PhD, PT, Associate Professor-Physical Therapist and a Canada Research Chair at the University of British Columbia. In her presentation she will share her research on the role of exercise in promoting cognitive and mobility outcomes, particularly for older adults.

Dr. Andrew Miki – Registered Psychologist in BC specializes in neuropsychology and Cognitive Behaviour Therapy. His presentation will focus on how we can streamline our brains to better manage stress in our lives, based on principles of neuroplasticity.

Sean Pritchard – Sean spent many years as a Buddhist monk in the Burmese tradition, teaching insight and mindfulness practice to many different cultures and nationalities. He is a Doctoral Candidate in clinical psychology at Fielding Graduate University. In his presentation “Mindfulness and Focus” he will introduce attendees to relaxation strategies to not only relax, but also manage mood and pain, and fully enjoy the moment.

For more information visit: www.braintrustcanada.com or click here to register.
_____________________________________________________________________
Paul Mitchell, Q.C. is a BC personal injury lawyer who has extensive experience with brain injury claims. Paul was a founding Director of BrainTrust Canada (Central Okanagan Brain Injury Society), and was on their board for over 25 years. He has presented at numerous brain injury conferences, including the Naramata Brain Injury Conference, and the BC Brain Injury Conference in Vancouver.

He is also the author of many articles and publications on brain injury.

For more information on brain injuries, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

Across Canada, Human Rights Tribunals have a unique role in our legal system by enforcing protections against discrimination provided by human rights legislation. As part of their mandate, these specialized tribunals have the authority to award damages and “make whole” victims of discrimination, including:

  • Damages for past and future wage loses;
  • Damages for loss of benefits and other perquisites of employment;
  • General damages for injury to dignity, feelings and self-respect.

In the past, damages in human rights cases have been relatively restricted, with general damages being limited to $20,000 in the most severe cases. However, over the course of the past years damage awards for human rights violations have been rapidly escalating.

This trend was confirmed in the recent decision of O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675, a case which received a lot of attention in the employment and human rights law bar for its disturbing facts and its record setting award of general damages.

In this matter, two sisters from Mexico were hired by Presteve Foods to work as temporary foreign workers (TFW) in a fish processing plant. Under the terms of their work visa, the complainants were prohibited from working for any company apart from Presteve.

Over the course of the nine months that the sisters were employed, the owner of the company exploited their status as TFWs to engage in ongoing sexual harassment and assaults. The owner’s actions ranged from dinner solicitations, to unwanted comments and touching, to forced sexual acts. When the complainants would refuse the solicitations, the owner would become angry and aggressive and would threaten to fire them and send them back to Mexico.

After a particularly violent exchange, one of the complainants pressed criminal charges and eventually filed a human rights complaint. In its findings, the Human Rights Tribunal of Ontario noted that the owner and principal of Presteve Foods engaged in “a persistent and ongoing pattern of sexual solicitations and advances” and that he “knew or ought reasonably to have known that these sexual solicitations and advances were unwelcome, particularly in light of the fact the O.P.T. expressly resisted and rejected his advances on many occasions.”

The Tribunal also commented on the inherent vulnerability of migrant workers in Canada and their susceptibility to exploitation and abuse. Given the severity of the contraventions of the Human Rights Code, the Tribunal awarded the complainants damages for injury to dignity, feelings and self-respect in an amount totalling $200,000.

The Presteve case is the most recent in a string of important human rights decisions awarding significant, six-figure awards for damages. In fact, it certainly seems that large awards in human rights cases are a trend that we will continue to see in the future.

In light of these changes, employers should keep the following in mind in managing their human resources:

  • Human rights legislation applies to all employees working in Canada, including foreign nationals employed on temporary work permits
  • Human rights tribunals are easy to access and unlike a court, there are no cost-consequences for an unsuccessful complaint
  • Employers must take note of these rising awards. More than ever, it is imperative to ensure that decisions to discipline and terminate do not involve discrimination
  • Employers need to understand that discrimination and harassment cannot, under any circumstance, be tolerated, and that the consequences of failing to provide a discrimination free workplace can be significant.

If your business is having HR challenges involving potential human rights issues, or if you or your business has been the subject of a human rights complaint, contact Pushor Mitchell to speak to one of our employment and human rights lawyers.

In this article we will briefly examine a situation in which a director sits on two different, but industry-related, boards. Key concepts include: conflicts of interest, fiduciary duties, and duty to disclose.

Facts

Susan is a director for Company “A” and is also a director for Cooperative Association “B”. A, as a corporate entity, is designed to create value for its shareholders via the distribution of profits. B, as a cooperative association, is owned and democratically controlled by the members who use the services of, and receive benefits from, the association. In our example, A and B are not related but do operate in the same industry, the candy producing industry (“C”).

Because of A and B’s mutual involvement and interest in C there is a very real possibility for competition between the company and the cooperative association. For Susan, a director with legal responsibilities to both A and B, there is the very real possibility that a conflict of interest could arise.

Duties of Directors

Acting as a director comes with a great deal of responsibility. In British Columbia, under the Business Corporations Act [SBC 2002] c.57 (the “BCA”) and the Cooperative Association Act [SBC 1999] c.28 (the “CAA”), respectively, every director is legally obligated to act honestly and in good faith with a view to the best interests of their company or cooperative association. They must also exercise the care, diligence, and skill that a reasonably prudent individual would exercise in comparable circumstances. Together, these form the fiduciary duties which directors owe and were identified as such by the Supreme Court of Canada in Peoples Department Stores Inc. (Trustee of) v. Wise (2004 SCC 68) at paragraph 35:

The statutory fiduciary duty requires directors and officers to act honestly and in good faith vis-à-vis the corporation. They must respect the trust and confidence that have been reposed in them to manage the assets of the corporation in pursuit of the realization of the objects of the corporation. They must avoid conflicts of interest with the corporation. They must avoid abusing their position to gain personal benefit. They must maintain the confidentiality of information they acquire by virtue of their position. Directors and officers must serve the corporation selflessly, honestly and loyally: see K.P. McGuinness, The Law and Practice of Canadian Business Corporations (1999), at pg. 715.

Conflict of Interest

Included in the passage above is the requirement that directors “avoid conflicts of interest… [and] avoid abusing their position to gain personal benefit.” The director must exercise his or her powers in the best interests of the company as a whole and not for any improper or collateral purpose.

Conflict of interest rules, or disclosure rules, exist because directors do not live in a vacuum; they are members of a much larger community than that of the board on which they sit and as such they possess a number of external interests. As a result, although a director is supposed to, and indeed is legally obligated to, act with the best interests of their company or cooperative association in mind, they may be tempted to act in a way which is more beneficial to themselves or their business partners.

For a director like Susan acting as a director for two entities in the same industry, a conflict of interest may arise in a number of scenarios, including:

    1. if she were to personally contract with, or compete with, the company;
    2. if she facilitates contractual relations between the two entities of which she is a director (e.g. arranges for B to buy sugar for candy production from a company in which Susan is a major shareholder);
    3. if she makes a decision in which she favours the interests of A over B; or
    4. if she, in her capacity as director of either A or B, learns of an opportunity for profit that should have gone to the company but instead seizes the opportunity for her own benefit or the benefit of a third party (i.e. corporate opportunity).

Although a small measure of latitude exists for a director with respect to conflicts of interest, in determining whether any of the above hypothetical situations constitutes a breach of Susan’s fiduciary duty, the facts of the case would have to be examined. Indeed, as per Chief Justice Laskin in Canadian Aero Service Ltd. v. O’Malley (1974 SCC) at 620:

The general standards of loyalty, good faith and avoidance of a conflict of duty and self-interest to which the conduct of a director or senior officer must conform, must be tested in each case by many factors which it would be reckless to attempt to enumerate exhaustively.

Therefore, depending upon the facts and her actions, Susan may be required to make a formal disclosure of her interest to each of A and B, respectively. Any failure by Susan to announce her interest in an opportunity to the relevant board could be found to be a breach of the fiduciary duty she owes to both entities individually.

To Disclose or Not to Disclose, That is the Question

So as a director, what can you do to ensure that you do not breach your duties to the company or cooperative association for which you act?

The best practice is to disclose any conflicts of interest which may exist. If Susan discloses her conflict of interest in a timely fashion, she would not be found to be in breach of her fiduciary duties and would simply be disallowed from voting on any resolution related to the conflict.

If Susan failed to disclose her conflict of interest, she may be held responsible to the many different groups, including the company or cooperative association itself, its shareholders (via oppression or derivative actions), creditors (if the actions of the directors attract tortious liability), and could face sanctions such as damages including damages for negligence as well as injunctions against taking certain action.

Conclusion

Being a director of a company or a cooperative association includes many obligations and responsibilities. Caution must be exercised when carrying out your duties as a director, particularly if, like Susan, you act as a director on two different boards for entities operating in the same industry.

Being aware of your duties is the first step. If you have any questions about the duties of directors or officers, the lawyers at Pushor Mitchell LLP are here to help.

“Conveyancing” is the term your lawyer uses to describe the legal process of transferring an interest in land from the seller to the buyer.

This article will describe the process involved and what to expect when working with a law firm to convey a sublease in a residential development on Westbank First Nations land.

  1.   Document Review
  2. Your lawyer will review the legal agreements which affect the home or lot you are purchasing, such as the purchase agreement, the head lease, the sublease, owners association bylaws (if applicable), and any existing easements. Your lawyer will report to you their findings and highlight for you the interest being purchased, remaining term, timing, rules for common property payments and other obligations affecting the home.

    In addition to this legal review, you will want to do typical investigations such as home inspection and review of the owners association minutes and budgets.

  3.   The Assignment
  4. Your lawyer will prepare a package of documents for the seller to sign, including a statement of adjustments and tax related declarations. Your lawyer will also send a form to the owners association asking for confirmation that all fees are paid up and everything is in order.

    The most important document is called the assignment. The assignment is the document that legally transfers the sublease to you, and in which you promise to take on all responsibility for the obligations in the sublease. The assignment is the document which is sent for registration in the Westbank First Nation land registry.

  5.   Title Insurance
  6. If you are using a mortgage to fund the purchase, you will be asked by your bank or credit union to take out insurance that protects them if there is any problem with the title or registration. Title insurance is an extra cost to buyers, but is required for all mortgage financing. In addition, you can purchase coverage which extends the protection to you as well. If you don’t, only your bank or credit union is covered by the policy.

  7.   Registration
  8. Once all the documents are signed, the originally-signed assignment (and mortgage, if applicable) is couriered to Westbank First Nation for registration. Westbank First Nation’s lands department processes the assignment, usually within a few hours, and issues registration confirmation by email to the lawyer.
    The lawyer then provides the sale proceeds and remaining paperwork to the seller’s lawyers, and the transaction is closed.

  9.   Owners Association or Homeowners Corporation
  10. Once you are registered as the owners of the sublease, you are a member of the owners association for the development. You need to contact the owners association to give them your contact information. You will be entitled to attend annual general meetings, and get involved as an elected director.

    Some developments use a corporation instead of an association, and in those developments you will also be provided share transfer documentation to sign.

  11.   Residents Advisory Council
  12. All residents of Westbank First Nation are able to attend the Residents Advisory Council’s annual meeting. You can also get involved as an elected member of the Advisory Council. You can find out more about the Advisory Council and its role at http://www.wfn.ca/siya/advcouncil.htm.

Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrea at 250-869-1245 if you would like help in purchasing a sublease on Westbank First Nations land.

There is good news and bad news with draft legislation released by the Department of Finance on January 15, 2016. In a previous Legal Alert article, I wrote about changes to the Income Tax Act that would impact the taxation of trusts. These changes came into effect January 1, 2016 and represented a major shift in the status quo, with the potential to create some serious problems for estate plans. The draft legislation released on January 15, 2016 is intended to address some of the problems.

The new rules brought in with the January 2016 amendments shifted the tax burden on the death of the life-interest beneficiary of a spousal trust, alter ego trust and joint partner trust. Prior to January 1, 2016, the deemed disposition that occurred on the death of the life-interest beneficiary resulted in the trust paying tax on the accrued capital gain of the trust property. This made a lot of sense as the trust held the assets and could use those assets to fund the tax liability. As of January 1, 2016, the tax liability for that same deemed disposition falls to the estate of the deceased life-interest beneficiary such that the assets of that deceased beneficiary, and not the assets of the trust, will be used to fund the trust’s tax liability. This can create serious problems for existing estate plans and trusts that are already in place: if the ultimate beneficiaries of the trust and the deceased’s estate are different, you have one set of beneficiaries paying for the tax liability associated with the other set of beneficiaries’ assets.

This new draft legislation essentially reverses these problematic changes to the taxation of spousal, alter ego and joint partner trusts. This is very good news as the tax resulting from the deemed disposition of a life interest beneficiary will be back to being taxed in the hands of the trust and not in the deceased life interest beneficiary’s estate (subject to a very limited exception).

There is, however, some bad news with the draft legislation. Before the January 2016 amendments, there was a provision in the Income Tax Act that specifically allowed a spousal trust to use the spouse beneficiary’s lifetime capital gains exemption on the death of the spouse beneficiary. For instance, the lifetime capital gains exemption could be used for qualified shares on the death of the first spouse. The shares could then be placed in trust for the surviving spouse, and the surviving spouse’s lifetime capital gains exemption could be used by the trust on the death of the surviving spouse (assuming the shares still qualified). The same rule applied for farm property or shares of a family farm corporation. That Income Tax Act provision was repealed with the January 2016 amendments, presumably because it wasn’t needed anymore because the lifetime capital gains exemption would have been available by virtue of the tax falling to the deceased’s estate.

The draft legislation changes where the tax liability falls, but it hasn’t brought back the provision that permitted the use of the lifetime capital gains exemption for spousal trusts. The result is that the use of a spousal trust (instead of an outright gift to a spouse) will result in the loss of the ability to use the surviving spouse’s lifetime capital gains exemption with respect to the assets held in the spousal trust.

The draft legislation has not yet received royal assent, and so is subject to further changes. Hopefully, the loss of the use of the lifetime capital gains exemption for spousal trusts is an oversight that will be corrected.

Employees who are passed from one employer to another in the event of the sale of a business create interesting issues for employment lawyers. Generally speaking if the employee is treated as though his employment is continuous and the new employer does not require a new form of contract, the employment is deemed continuous for the purpose of the calculation of damages (also called severance pay) if his employment is terminated by the new employer.

In a recent case in the Kootenays an employee who received over $100,000 in severance pay from his old employer argued that he ought to be entitled to similar severance pay from his new employer after only a few months of employment. The employee argued that since his employment was continuous, all of his years of employment for both employers ought to be taken into account in the calculation of his severance pay entitlement.

He argued that the severance pay from his original employer was really a retention bonus and not severance. While he won his argument at trial, the BC Court of Appeal overturned the decision. The appeal court reasoned that if the employee was terminated and paid severance pay by the original employer, and if there is no real continuation of employment, because the nature of the employment is different with the new employer, it is incorrect to award severance based on the combined employment with the two employers.

The bottom line is that where an employee is taken on by a new employer and has received termination pay or notice from the old employer, he may commence his new employment as a without credit for severance which accrued under the old employment.

There are ways for employers to provide for certainty in these situations to avoid the legal fees and court costs incurred in this case.

The BC Government has passed a new Societies Act, which is expected to be brought into force in November of 2016.

Owners Associations must file a transition application within two years of the new Act coming into force.

What’s New?

The main purpose of the new Societies Act is to introduce online registrations and filings, modernize the governance laws, and clarify the reporting obligations of publicly-funded societies. The vast majority of owners associations will not fall into the category of publicly funded societies, and will have an opportunity to opt into a less onerous reporting process.

Each Owners Association must comply with the transition requirements set out in the Societies Act. At the same time, an Owners Association has the opportunity to amend its bylaws to take advantage of some of the new rules.

Positive Changes for Owners Associations

The following are a few of the new options available under the Societies Act that Owners Associations may wish to take advantage of, all of which must be approved by special resolution:

  1. the special resolution threshold can be two-thirds of members at a meeting, down from the current three-quarters requirement;
  2. multiple classes of membership can be created, and the old rule about having more voting members than non-voting members has been removed. This means that the owners association could admit as non-voting members additional residents from each home; and
  3. an Owners Association may declare itself to be member-funded, and opt out of certain reporting requirements.

Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Andrea at 250-869-1245 if you would like to discuss how your Owners Association can take advantage of the new Societies Act or for assistance with the transition process.