Premier John Horgan recently announced that the minimum wage rate in British Columbia will rise to $15 per hour by 2021 – a 34% increase over four years. The minimum wage for workers in British Columbia is currently $11.35.

The minimum wage in British Columbia will increase according to the following schedule:

  • June 1, 2018: $12.65 ($1.30 increase)
  • June 1, 2019: $13.85 ($1.20 increase)
  • June 1, 2020: $14.60 ($0.75 increase)
  • June 1, 2021: $15.20 ($0.60 increase)

The provincial government states that the rate increase is incremental to “allow businesses and employers to plan for predictable and stable increases in wages over time.” Although the minimum wage rate applies to the vast majority of workers in British Columbia, liquor servers, farm workers, and resident caretakers are subject to different minimum wage rates. The provincial government has not announced whether the minimum rate for these workers will see a corresponding increase.

Given that the first wage rate increase is scheduled to occur in June, employers are encouraged to make the appropriate plans to absorb additional labor costs.

Liability waivers are a must for any company inviting members of the public to engage in a risky activity. While no waiver should be considered ironclad, a well-drafted waiver will often provide some degree of protection to an organization which invites members of the public to participate in activities with at least some degree of inherent risk.

Courts generally treat liability waivers as draconian in that they require one party to absolve the other of liability for negligent acts. As a result, the courts also tend to side against reliance on a waiver or read down waivers whenever appropriate to do so.

In the recent decision of Cooper v Blackwell, 2017 BCSC 1991 (CanLII) the court was called upon to determine the extent to which a liability waiver may survive over time and apply between related activities.

In the case, Mr. Cooper was a repeat customer of the unincorporated business, Wistaria; having gone on prior hunting trips with the business. Mr. Cooper paid for a grizzly hunting trip for the fall of 2013 and signed a liability waiver in advance. The hunt was not successful and, as a result, Wistaria offered to take Mr. Cooper out again in the spring of 2014 free of charge.

Wistaria obtained a new hunting licence for the second grizzly hunt, provided an invoice indicating that there would be no balance due for the second trip and stipulated that there would be a $1,000 royalty payable if the hunt was successful.

Mr. Cooper was ultimately unfortunately fatally shot by a guide on accident during the second trip. As the court noted at para. 19, the sole issue in dispute became whether the liability waiver signed in advance of the first grizzly hunting trip extended and applied to the second grizzly hunting trip such that there was no liability for Mr. Cooper being fatally shot. Mr. Cooper did not sign a second wavier for the second grizzly hunting trip.

The court noted that the language of the release contained confusing syntax and grammar that did not make it clear whether Wistaria would be released from all liability. While these comments highlight the importance of a liability waiver having clear language to be meaningful, the court did not turn its decision on the poor drafting of the waiver. Rather, the court turned relied upon the following analysis spelled out by the Supreme Court of Canada in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII), as to whether a liability waiver will exclude liability (referred to as an exclusive clause):

  1. As a matter of ordinary contractual interpretation, does the exclusion clause apply to the circumstances established in the evidence?
  2. If so, was the exclusion clause unconscionable at the time the contract was made (e.g., because of unequal bargaining power, et cetera)?
  3. If the clause is valid and applicable, should the court decline to enforce it because of an overriding public policy concern that outweighs the very strong public interest in the enforcement of contracts?
  4. The court hung its hat on whether the excursion in question was contemplated by the liability waiver (and, by extension, Mr. Cooper) at the time of its signing. It found that, when the waiver was signed, only one guided excursion was contemplated, the fall, 2013 excursion. The court went on to find that the spring, 2014 excursion was a separate and distinct trip not contemplated in any way by the parties when the liability waiver was signed.

    While the court found that, from a commercial perspective, the second trip might be seen as a continuation of the first, the court also noted that the two trips took place in different hunting seasons, a new hunting licence was required, separate tags were required, separate invoices were issues (despite there being no amount due on the second) and a separate royalty charge was contemplated if the second hunt was successful.

    The court made it clear that liability waivers can and do extend over multiple events on multiple dates, but that the waiver must clearly be drafted to apply to such situations. The course of dealing principle which might impute an imperfect contract with terms established by a long-standing history between parties was rejected with the court emphasizing that liability waivers are “…subject to rigorous scrutiny before being enforced by the court. Express notice and clarity of language are essential.”

    Cooper v. Blackwell is demonstrative of the need for entities wishing to rely on liability waivers to ensure that the waivers are expertly drafted, that the purpose and limitations of liability waiver are understood by such entities and that such entities routinely review their waivers to ensure that they apply to all activities that might be engaged in by the parties executing such waivers. Even with repeat customers, if there is any doubt that a liability waiver might apply to any activity entailing risk, the entity offering such an activity ought to obtain a new waiver.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning negligence and/or a liability waiver, he’d be happy to assist you. He may assist and/or refer you to counsel who may assist in drafting and implementing effective liability waivers. 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.

    With a cell phone in every pocket, distracted driving accidents are on the rise and innocent people are getting hurt in more rear-end collisions than ever before. With more injuries comes more insurance claims, and ICBC is struggling to keep up with demand. The BC Government made matters worse when they expropriated $1.3 billion in ICBC surpluses over recent years. Now that ICBC is in trouble, they’re scrambling for a solution.

    How does ICBC and the BC Government propose to solve this funding problem? Increased premiums and deductibles for bad drivers? Accident prevention strategies? Better corporate management at ICBC? No, no and no.

    The solution being tabled? Just don’t pay. Cap the damages that would otherwise be owed to victims. Let bad drivers off the hook.

    The BC Government is proposing to cap the damages payable by negligent drivers arbitrarily, without regard to the victim’s actual injuries or losses. They are asking victims to absorb the cost so that negligent drivers don’t have to pay for the damage they cause. The proposal would ignore the pain, anxiety, sleepless nights and reduced quality of life that often comes with being the victim of a motor vehicle accident.

    In a press release published January 28, 2018 ICBC explained that “older claim…which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims.” In other words ICBC initially assessed these claims as minor, but their assessment was wrong or, at best, incomplete. These injuries turned out to be more “complex and costly” than originally thought. Rather than work to improve their initial assessment processes and look for ways to resolve claims more efficiently, ICBC’s proposal is to simply not pay.

    This is unacceptable. There are better ways to keep premiums reasonable and to make our roads safe for all users. Now is the time to speak up and voice your opposition to this proposal.

    Say no to caps.

    Learn more and sign the petition at www.roadbc.ca and join the community on facebook: www.facebook.com/ROADforBC. Contact your MLA and make your voice heard.

    What Is Title Insurance?

    Title insurance is protection against loss arising from problems connected to the title to your property. Before you purchased your home, it may have gone through several ownership changes, and the land on which it stands went through many more. There may be a weak link at any point in that chain that could emerge to cause trouble. For example, someone along the way may have forged a signature in transferring title. Or there may be unpaid real estate taxes or other liens. Title insurance covers the insured party for claims and legal fees that arise out of such problems.

    Do I have to Purchase Title Insurance?

    Usually you do if you need a mortgage, because many mortgage lenders (i.e. banks/credit unions) require such protection for an amount equal to your loan. This insurance lasts until the loan is repaid. As with mortgage insurance, it protects the lender but you, as the borrower pay the premium, which is a single payment made upfront (this payment is usually between $175 – $450 depending on the amount of your mortgage and some other factors).

    Does Title Insurance Do Anything For Me?

    The required insurance protects the lender up to the amount of the mortgage, but it doesn’t protect your equity in the property. For that you need an owner’s title policy for the full value of the home. You have the option of adding the owner’s policy on to the lender’s policy for a small additional cost (usually around $50). You will see the charges incurred for your lender and owner policies in your statement of adjustments. We view this as very important protection for our clients and a small price for you to pay for your peace of mind.

    For How Long Is the Property Owner Purchasing Title Insurance Covered?

    Indefinitely. The owner’s protection lasts as long as the owner has an interest in the property.

    This is provided as information ONLY; it should NOT be construed as legal advice. For more information on Wills & Estates and Real Estate matters and to discuss your specific circumstances, please contact Vanessa DeDominicis at dedominicis@pushormitchell.com or on 250-869-1140. 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.

    On July 25, 2016 the Property Transfer Tax Act, R.S.B.C. 1996, c. 378 introduced a 15% tax on foreign entities or taxable trustees in addition to ordinary property transfer tax on transfers of residential real property in the Greater Vancouver Regional District. While the purpose of effects of the so-called “Foreign Buyer Tax” are beyond the scope of this article, suffice to say the tax substantially increased the costs of certain purchases for those purchasers falling under its purview.

    The Foreign Buyer Tax caught many purchasers and those involved in the real estate industry off guard as was the case in Wilkie v Jeong, 2017 BCSC 2131 (CanLII) which touches upon the Foreign Buyer Tax and a number of key legal principles that apply to contracts of purchase and sale.

    In Wilkie v Jeong, the purchaser was a foreign national. The purchaser and vendor entered into a contract of purchase and sale for a home in North Vancouver for $2,668,000 prior to the Foreign Buyer Tax coming into effect and without the parties apparently having turned their mind to the possibility of that tax coming into force. Unfortunately for the purchaser, the Foreign Buyer Tax came into effect between the time the contract of purchaser and sale was entered into and its completion date resulting in an increase in transfer tax from $58,040 to $458,240 (a $400,200 increase).

    The purchaser refused to complete and argued that the contract was frustrated as a result of the introduction of the Foreign Buyer Tax. The doctrine of frustration posits that when, through no fault of any party to a contract, a contract is no longer being required to be performed because an intervening and unforeseeable event makes it such that performance would amount to something radically different from what was bargained for. For example, a home being destroyed by a wildfire before a completion date would amount to frustration relieving a purchaser from the obligation to pay for the home and the vendor from being required to sell a home which was not destroyed.

    At the time of trial, the vendor in Wilkie v Jeong had been unable to sell the property to a third party and claimed losses and damages as a result.

    The court acknowledged that frustration does not require it to be impossible for a contract to be performed to apply; however, it also observed that the contract in question was not subject to financing and included a provision that the purchaser would pay, among other things, all taxes from the adjustment date. The purpose of the contract was simply to transfer land in exchange for a purchase price. The eight-fold increase in the property transfer tax was acknowledged to be onerous, but the court held that the law states that increased and unanticipated expense, hardship or inconvenience does not constitute frustration.

    Although her evidence was less than complete, the court also found that the purchaser was unable to raise sufficient fund to complete with the additional costs of the Foreign Buyer Tax. Again, the court found that there law states that lacking sufficient funds does not constitute frustration. Although not stated by the court so clearly, the purpose of clauses making contracts of purchase and sale subject to financing is to ensure that a purchaser is not required to complete until they can assure themselves they have sufficient funds to do so.

    The purchaser in Wilkie v Jeong also attempted to seek the return of her deposit on through s. 24 of the Law and Equity Act, R.S.B.C. 1996, c. 253 which provides that “The court may relieve against all penalties and forfeitures, and in granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit.”

    The court found that the deposit was not disproportionate to the purchase price (being 6.7% of the purchase price) and went on to find that the applicable principles in respect of relief from forfeiture may be summarized as follows:

    1. When money is paid by a buyer as a true deposit or pursuant to an express forfeiture clause, if the buyer is in default he or she cannot recover the money at law at all.
    2. However, the buyer may have a remedy in equity for relief from forfeiture.
    3. Two things are necessary to give rise to that equitable relief: first, the sum forfeited must be out of all proportion to the actual damage suffered by the seller, which cannot be assessed until the seller’s actual losses have crystalized, and, secondly, it must be unconscionable, in the traditional equitable sense of unconscionability, for the seller to retain the money. Therefore, if the transaction is not unconscionable in the traditional sense, it is not necessary to consider whether the sum forfeited is out of proportion to the vendor’s actual loss.

    While the court was not in a position to assess whether the vendor’s damages were disproportionate to the deposit amount, it was able to conclude that the deposit amount was not unconscionable and found that the vendor would retain the deposit.

    Lastly, the court found that the vendor’s damages would be assessed at a later date.

    Wilkie v Jeong is illustrative of the importance of a contract to balance risks among contingencies that may arise during the performance of a contract. Parties may protect themselves from further performance obligations by making contracts subject to certain events or completing/waiving certain conditions. No contract can fully account for any and all possible occurrences; however, a well-drafted contract appropriately balances risks among the parties to it. Further, parties entering into contracts who receive proper legal advice ought to be made informed of what risks they are and are not accepting in any bargain they enter.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning a contract of purchase and sale or another contractual dispute, he’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.

    All owners associations must file Societies Act transition paperwork by November 2018. Further, for owners associations to continue to have the ability to distribute assets to members at the end of the lease, it is necessary to approve a special resolution in general meeting to be designated a “member funded society”. If this is not done on transition, the owner association must get a court order to approve being designated as a “member funded society”.

    If your owner association still needs file its Societies Act transition paperwork and become designated as a member funded society, the first step is to determine whether your next regularly scheduled annual general meeting will work with the transition deadline of November 2018. If not, your owner association may need to call a special general meeting to approve the member funded designation.

    Remember, the Societies Act requires notice to members of the text of a special resolution to be passed by the members. This means that you need to put the member funded designation special resolution in the notice of meeting.

    Further, the new Societies Act includes new options for owners associations of which you may wish to take advantage. Those options require an amendment to the bylaws approved by special resolution. For example, the new Societies Act allows for members to participate in general meetings through electronic communications mediums where certain requirements are met. This could be helpful for owners associations which have a high number of members who live away for part of the year.

    Please contact us if you would like assistance with the process for your owner association being designated as “member funded” on transition, or a review of the options under the new Societies Act.

    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.

    Contracts for the purchase and sale of real property and other commercial contracts often contain a clause that says “time is of the essence” in respect of certain or all contractual obligations (a “Timing Clause”). Many parties sign contracts without given due consideration to the full impact of a Timing Clause or otherwise hold the belief that a Timing Clause is merely part of a standard form contract and would not be strictly applied.

    Briefly put, a Timing Clause requires one or more parties to a contract to perform certain obligations by a specific date and time, failing which, the offending party(ies) will be considered to have materially breached the contract.

    In the case of Gill v Bal, 2017 BCSC 2015 (CanLII) the purchasers learned that there can be severe consequences for even the smallest of breaches of a Timing Clause.

    In Gill v. Bal, the original purchaser agreed to purchase a property from the defendants and entered a contract that included a completion date of on or before April 25, 2016, a requirement for documents required to give effect to the contract to be delivered to the Land Title Office on or before 4:00 PM on April 25, 2016 and a Timing Clause.

    The contract was later assigned to the plaintiffs and an extension of the completion date to April 26, 2016 was granted when the plaintiffs could not arrange for financing in time.

    On the day of completion:

    • the vendors’ notary forwarded executed transfer documents including everything needed from the vendors to complete the transaction;
    • at 4:00 PM, the purchasers’ notary was not in a position to complete;
    • at 4:11 PM, the vendors’ notary wrote to the purchasers’ notary confirming their understanding that the purchasers were unable to complete the purchase and the vendors had remained ready, willing and able to complete;
    • at 4:19 PM, the vendors’ notary wrote again and, among other things, wrote that the purchasers’ notary was not authorized to make use of the transfer document; and
    • at 5:36 PM, the purchasers’ notary advised the purchasers were now in the position to complete and the vendors advised that they refused to complete.

    The vendors subsequently entered into a different contract of purchase and sale with a purchase price increased by $149,000. The purchasers commenced an action for specific performance seeking to force the vendors to sell on the original terms or, alternatively, damages. The vendors counterclaimed for breach of contract and wrongful filing of a certificate of pending litigation. The vendors additional sought damages in respect of additional financing costs they incurred as a result of having to find alternative financing while the dispute with the purchasers made anticipated purchase funds unavailable for the purchase of their new home.

    In resolving the dispute, the court found that the Timing Clause had not been waived and, even if it had, the contract required that the purchasers be in a position to complete the transaction by 4:00 PM on April 26, 2016, which they were not. As a result, the purchasers had breached the contract.

    Despite the vendors selling the subject property for more money than they would have under the original contract, the court awarded the vendors $25,450.10 from the purchasers in respect of those additional costs they incurred as a result of requiring alternative financing. The vendors were also awarded court costs for being the successful party.

    Had the purchasers in Gill v Bal identified early that they were unable to complete in time, they could have attempted to negotiate a sufficient extension of time to perform their duties. Having failed to obtain an extension, the purchasers being less than two hours late with their performance was enough to constitute a material breach of contract. Having commenced an action to enforce a contract that the purchasers materially breached, they were exposed to additional costs and expenses.

    The loss of a $705,000 purchase price for a home that apparently had a market value of $854,000 and having to pay court and financing costs was a hard lesson to learn for the purchasers, but is a reminder that, in agreeing to perform contractual duties by specific dates and times, a party must do so or face the consequences of having breached a contract. A party which materially breaches a contract may be unwise to later seek to enforce it.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning a contract of purchase and sale or another contractual dispute, he’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.

    Unfortunately, spouses separate, children do not get along with their parents and vice versa. According to the Wills and Estate Legislation, a will-maker has a legal obligation to provide for their spouse and children “adequately, justly or equitably”.

    “Despite any law or enactment to the contrary, if a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-maker’s estate for the spouse or children.”

    However, sometimes, with valid reasons, the court may recognize a will-maker’s autonomy and will allow the disinheritance of a spouse or child(ren) provided that there is sufficient evidence (including evidence from the Will-maker him/herself) that there are valid and rational reasons for the disinheritance.

    This is provided as information ONLY; it should NOT be construed as legal advice. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis at dedominicis@pushormitchell.com or on 250-869-1140. 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 Voluntary Disclosures Program (VDP) is a form of “tax amnesty” program available in Canada. It allows taxpayers to avoid prosecution and penalties for past failures to report income, gains, GST or certain other tax filings. The rules are about to get stricter so you should not delay if you want to take advantage of this program.

    Effective March 1, 2018, the Canada Revenue Agency is creating a new stricter category of voluntary disclosures called the Limited Program. As well, the benefits of voluntary disclosure will be reduced in many circumstances.
    The main changes are that:

    • the estimated tax owing must be paid up front
    • relief from penalties will be restricted
    • relief from interest charges on the tax will also be restricted

    In addition, the Canada Revenue Agency will now be considering the reasons for the past failure to disclose and will limit the benefits under the VDP if the failure to disclose involved the underground economy, or there was deliberate or wilful failure to pay tax or report. The Canada Revenue Agency will also be considering the level of sophistication of the taxpayer, the dollar amounts involved and the number of years of non-compliance.

    These considerations are not part of the current VDP.

    Effective March 1, 2018, the Canada Revenue Agency will have much more discretion in handling these disclosures and deciding whether or not you are deserving of relief.

    If you have not disclosed foreign investments or you have offshore income that you did not report, or you sold property that you didn’t report, or had business income that was “off the books”, you will want to consider making your voluntary disclosure prior to March 1, 2018.

    Contact me if you would like to discuss this further. All discussions are confidential and protected by solicitor-client privilege.

    It is that time of year when families want to travel to warm places like Florida, Arizona and California, in order to get away from the Canadian winter. Often times families want to bring along their nanny or live-in caregiver in order to provide them with a vacation and in order to help out with the kids. The United States, however, has very strict rules on who can work within its borders and for how long and under which circumstances etc. This includes nannies and live-in caregivers even though they are working for a Canadian employer while visiting the United States.

    Indeed, a nanny or live-in caregiver must apply in advance for a B-1/2 visa in order to work in the United States on behalf of their Canadian employer. In order to apply for a B-1/2 visa an employee must have been employed by their immediate employer for at least one year prior to the application. Further, the employer must pay the round-trip travel expenses from Canada to the United States for their nanny or live-in caregiver and must pay them pursuant to the employment contract without any deductions being made for the trip itself.

    Finally, if the nanny or live-in caregiver is not a Canadian citizen, then one must also consider Canadian immigration laws governing the travel of that non-citizen. Indeed, Canadian immigration law governs the admissibility of non-citizens and one must make sure that they will be re-admitted to Canada upon their return from vacation.

    In order to make sure you can enjoy a hassle free vacation take the time to speak with an immigration lawyer before booking your trip to the United States.

    The British Columbia Human Rights Code prohibits discrimination in employment. Historically, the jurisdiction to determine discrimination was narrow. It involved discriminatory acts committed by one employee or supervisor against another employee. However, the Supreme Court of Canada recently broadened the scope of the Code by finding that it applies to employees employed by different employers – not just persons in a traditional employment relationship.

    In British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (“Schrenk”), the complainant was a Muslim who worked as a civil engineer for Omega and Associates Engineering Ltd. (“Omega”). Omega contracted Clemas Construction Ltd. (“Clemas”) to perform construction services on a road improvement project. Omega retained certain supervisory powers over the employees of Clemas who worked on the project. Mr. Schrenk, an employee of Clemas, was the site foreman on the project. He made frequent derogatory remarks about the complainant’s religion, place of origin and sexual orientation.

    Despite working for different employers, the complainant filed a human rights complaint alleging discrimination with respect to employment by Mr. Schrenk. He also alleged that the conduct was permitted or tolerated by Clemas. Mr. Schrenk and Clemas applied to dismiss the complaint on the basis that they could not have discriminated against Mr. Schrenk in regards to his employment because he was not an employee of Clemas. The British Columbia Human Rights Tribunal disagreed finding that the purposes of the Code supported protecting persons who occupy the same workspace but are otherwise not in a formal employment relationship. Notably, Mr. Schrenk – and not his employer – applied for judicial review of the Tribunal’s decision. The decision was overturned by the British Columbia Court of Appeal before proceeding to the Supreme Court of Canada.

    The Supreme Court of Canada, in a split decision, found that discrimination in employment may include discriminatory acts by co-workers who have a different employer. Following an extensive review of the legislative history of the Code, the majority of the Court held that applying a broader approach best reflects the underlying aims of the statute as it gives employees a greater scope to obtain remedies for discrimination. In this particular case, Mr. Schrenk was the foreman of the worksite. He was not the complainant’s superior but was an unavoidable part of the complainant’s work environment. His actions had a detrimental impact on the complainant’s worklife. As such, the Supreme Court of Canada held that Mr. Schrenk’s conduct amounted to discrimination regarding employment. The discriminatory acts were perpetrated against an employee by someone integral to his employment context.

    The decision in Schrenk will have far reaching implications across the country. Clemas did not appeal the decision of the Human Rights Tribunal which meant that the issue before the Supreme Court of Canada involved the conduct of an individual employee. That being said, the Court’s decision will likely pave the way for findings of vicarious liability against third-party companies like Clemas. Employers may be subject to the Code despite the absence of an employment relationship. This decision will be of particular interest to persons in the construction industry, any employer who utilizes the services of contractors and persons working on multi-employer worksites.

    It can be frustrating for homeowners dealing with inadequate contractors that the controlling mind/primary owner of the company can hide behind their corporation to avoid personal liability. Often poor work by contractor is a symptom of the company going through a larger crisis in which it has failed to meet a number of obligations to various parties all of which has caused creditors and claimants to line up to get a piece of a company which may have little, if any, assets.

    The case of Koltai v Hauser, 2017 BCSC 1675 (CanLII) concerns the limited circumstances in which the courts will “pierce the corporate veil” and find that the controlling mind, owner and or director behind a company is responsible for the liabilities of a company. Often such controlling minds, owners and directors may have more assets capable of seizure than a failing company.

    As was observed in Koltai, corporations exist as separate legal entities and, generally, the recourse against a corporation is limited to recovering against the corporation and not those that own or control it. In respect of piercing the corporate veil, the court reviewed authorities at paras. 32-34 which previously held, among other things, that:

    • the courts might disregard the separate legal personality of a corporate entity where it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct;
    • control is more than mere ownership;
    • conduct that might support the court piercing the corporate veil would be conduct akin to fraud that would otherwise unjustly deprive claimants of rights;
    • courts can pierce the corporate veil when a company is formed for the express purpose of doing a wrongful or lawful act or, if when formed, the parties controlling the company direct it to do a wrongful thing; and
    • the corporate veil may be pierced in instances or fraud or improper conduct where the corporation is being used to effect a purpose or commit an act which the owners could not effect or commit.

    In Koltari, the alleged breaches of contract and negligence included:

    1. failing to perform the renovation in a timely, workmanlike and proper fashion;
    2. failing to comply with regulations etc. with respect to the work that was done;
    3. failing to acquire the proper building permit;
    4. removing a load bearing wall without proper inspection or support;
    5. damaging the premises and leaving debris; and
    6. that the $93,000 paid to him on the fixed price contract originally valued at $84,997.50 had been utilized for gambling, paying the personal defendant’s mortgage, paying coworkers, paying personal debts and paying other judgment creditors.

    The defendants disputed little of the allegations against them other than that the contract in question was between the plaintiff and corporate defendant only. The defendants admitted that they had “totally screwed up” on the project and were in over their heads.

    The court held that before it was not a case where an owners was simply dissatisfied with the work of a contractor; rather, the work in question was beyond deficient and the contractor had failed so fully that its conduct amounted to fraud. The personal defendant had willfully failed to comply with the terms of the contract and to perform the most basic elements of construction. In all the circumstances the court found both the corporate defendant and personal defendant liable for the corporate defendant’s conduct.

    It appears significant to the court finding it could pierce the corporate veil that the corporate defendant having acquired $93,000 to pay for services which funds were fraudulently used for a number of unrelated purposes.

    Koltari should not be confused with suggesting that piercing the corporate veil is ordinarily available even in some of the more egregious instances of negligent construction, but is illustrative that there are instances in which the work of a contracting company crosses the line between negligence and fraud. Where that line is crossed, recovery is possible against the party who owns and/or controls the contracting company.

    Koltari also serves as a reminder that construction/remediation contracts serve both parties best when they clearly detail expectations of the parties, what funds are due when and how funds are to be applied.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning a construction contract, he’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.

    “I don’t need a Will, I don’t have anything”……YES YOU DO! Do you have relatives? Do you have a bank account? Do you have a vehicle? Do you own a home (even if it has a mortgage on it)? Do you have children? If you answered yes to ANY of those questions, then you need a Will.

    Whether an estate plan is simple or complex, a Will forms an integral part of that plan. It does not matter how much or how little you have, a Will is essential for everyone. A Will is your chance to deal with your assets in your own way, following your wishes and your beliefs. It gives you the chance to appoint YOUR choice of Executor, YOUR choice of Guardian for your children. It is not just a tool for the wealthy to pass down their legacy. It is something you do for those you leave behind. It makes things easier for them to deal with on your behalf, once you are gone.

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

    On November 23 the Court of Appeal released the family law decision N.R.G. v. G.R.G. 2017 BCCA 407. This is a very important case which dealt with a multiple parenting dispute between the parents of five children. At the time that court proceedings started the children were aged 11, 9, 7 and 3 year old twins. The parties unfortunately were engaged in contested court proceedings for approximately five years and at the time that the Court of Appeal reviewed some of the earlier decisions the children were aged 16, 14, 11 and the twins were 8.

    The mother is a physician and the father was described by the Court of Appeal as being “highly educated and has worked in the banking industry and property development but was effectively unemployed at the time of trial and had been for several years”. This is a case where there were allegations of abuse on the part of the father, allegations of alienation on the part of the mother and evidence that both parents had behaved inappropriately at times in the presence of the children.

    The trial judge had “seized” himself of the Court proceedings so all the Supreme Court proceedings had been in front of the same trial judge. The mother appealed two of his decisions on the basis that the trial Judge had not properly considered the best interests of the children and that he had demonstrated a reasonable apprehension of bias against the mother. The Court of Appeal did find that the trial judge had not properly considered the best interest of the children in some of the orders that he made and had been inordinately focused on the poor behavior of the parents as between the parents and trying to correct that behavior and direct their parenting which is not the role of a Judge.

    The Court of Appeal criticized the trial judge in making several orders that “go beyond the role of a Judge under the Family Law Act and they made some important comments about the Family Law Act in B.C. specifying that “the Act does not contemplate that the details of parenting will be directed by the Court. The legislation does not provide for the Court to step into a guardian’s role”.

    In my view this case may significantly impact the trajectory of family law in British Columbia because it illustrates the limitations of the Court system in these types of disputes. Out of Court resolution is expressly encouraged and promoted in the British Columbia Family Law Act in part for this reason. The best interests of the children is of course influenced and impacted by the behavior of the parents but ultimately the Court needs to be cognizant of the fact that it cannot “correct” the behavior of the parents or go too far in issuing parenting directives.

    On November 21, 2017 the Auditor General released its 2017 Fall Report. Included in the Report were the results of a yearlong audit of the Canada Revenue Agency call centres. The audit focused on whether the CRA provided taxpayers with timely access to accurate information about their taxes.

    The Auditor General found that the CRA gave taxpayers very limited access via its call centres due to an inability to handle the volume of calls received. During the time the audit was conducted, the CRA received approximately 54 million calls and blocked approximately 29 million of those calls by presenting the callers with a busy message. Only 32% of calls reached an agent and each caller made an average of three or four call attempts per week.

    Perhaps more concerning, however, is that when a taxpayer did speak with a CRA agent, they were provided with incorrect information approximately 30% of the time. Taxpayers relying on this misinformation may pay an incorrect amount of tax or, perhaps, miss deadlines to file their taxes. Each can result in the taxpayer incurring penalties.

    Finally, the Report found that the CRA overstated its call centres’ service standard results in its public reporting. Accordingly to the CRA, approximately 90% of callers are connected to an agent or self-service system. However, this number does not take into account the calls blocked by the CRA. The CRA reported that it had been meeting its service goals but, when the blocked calls are factored in, the CRA’s success rate was merely 36%.

    The Report’s findings are concerning because the CRA’s call centres are the primary method that taxpayers use to obtain information to assist them with preparing their income tax returns and ensuring that their benefits are correctly claimed.

    The CRA has agreed with the results and recommendations of the Report and will be reviewing how it manages its incoming calls and its internal quality assurance practices. A full copy of the Report can be found here.

    Did you know that Westbank First Nation’s development laws are available through their website? Westbank First Nation has the following development related laws:

    1. Land Use Law
    2. Subdivision, Development and Servicing Law
    3. Building Law
    4. Business Licence Law

    WFN also has published zoning maps and servicing maps.

    If you would like assistance with a real estate development on WFN Lands, please let us know.

    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.

    Many people are helping their children financially, both while they are under 19 and often well into their adult years.

    We routinely prepare Wills and Trusts that are intended to look after our clients’ children, both before and after adulthood. Most Wills contain trusts for money a child will be entitled to under an estate, until the age of 21 or 25 or beyond. I had one client insist her son was still not able to handle his own money, and when I asked her his age, she said: “60”!

    Wills also usually provide that the trustee has the discretion to advance for the benefit of that child prior to the date when the child receives all of the capital. The standard wording in the Will allows for advances for education, health care needs, maintenance and general benefit. How does the trustee know what your wishes are for advances to the child before they receive all the capital?

    You can add directions in your Will as to your specific wishes, but if you have concerns or directions which you would like to keep private, a better way of providing the direction is by a Letter of Wishes. Your Will becomes public information when Probate is obtained, and all beneficiaries must receive a copy of it, so they will all see your directions. A Letter of Wishes does not become public, as it is just for the eyes of your trustee, and it can be added to or modified more easily than changing your Will.

    Your lawyer can help you draft a Letter of Wishes, or you can write a letter to your trustee yourself, which you keep with your copy of the Will. The kinds of directions you might give include whether:

    • your trustee should advance sufficient funds to permit your child to attend post-secondary education, including costs of room and board;
    • you would like funds advanced to buy a car, if the trustee thinks appropriate (but not a hot car!);
    • the trustee can advance money for a down payment on a house, if the choice seems appropriate to your trustee;
    • the trustee can advance money to start up a business, if the trustee thinks appropriate;
    • the trustee can advance money for travel;
    • if the children are under 19, whether the trustee can advance to the guardian funds for the renovation of the guardian’s house or for the purchase of a larger vehicle.

    The Letter of Wishes can specify the standard of living you would like your trustee to provide for your child, and can specify anything for which you definitely don’t want the trustee to advance money.

    Your children do not need to see the Letter of Wishes, so privacy of your wishes/reasons can be assured.

    In addition to writing a Letter of Wishes, in a trust that carries on for some time, be sure to choose a trustee whose discretion you trust, who gets things done, and who is a good communicator. Your lawyer can help you with advice on these matters.

    The BC Office of the Superintendent of Real Estate released new Real Estate Rules aimed at consumer protection, which will come into effect on March 15, 2018.

    The new Real Estate Rules, which cover a wide range of matters, including qualification requirements for real estate professionals and business practices, are a significant departure from the status quo. These new rules change the way real estate professionals can do business, with new restrictions and disclosure requirements, all aimed at enhanced consumer protection. While potentially seen as a time and cost saving practice, dual agency is an area of conflict of interest risk and potential dispute to the party who did not initially engage the real estate professional.

    The change that is most widely discussed is the prohibition on dual agency. Dual agency is the practice of representing parties on both sides of a real estate transaction. Under the new rules, this practice will be prohibited, except in limited circumstances where the real estate is in a remote location that is under-served.

    Other changes include:*

    1. The requirement to provide more information about commissions and fees, including how they will be shared amongst real estate brokers.
    2. New disclosure requirements for real estate professionals when working with unrepresented parties. These include: a description of the risks to the unrepresented party, the limited assistance that the real estate professional may provide to the unrepresented party, and a recommendation that the unrepresented party seek independent professional advice
    3. The imposition of administrative penalties for contravention of the rules.

    * Please note that the above list is not exhaustive.

    The new Real Estate Rules can be found here.

    A builders lien can be an effective, powerful and inexpensive tool for helping unpaid contractors, subcontractors, suppliers receive payment for their materials and services. Often times receiving financing, continued retention as a contractor or the sale of a property may be dependent on discharging a builders lien from title and so debtors and/or owners may be highly motivated to get a lien off title as soon as possible.

    One of the means available to discharge a lien quickly is to apply to the Court further to s. 24 of the Builders Lien Act. Through this section any land owner and any party liable on contract or subcontract in connection with the improvement giving rise to the lien can apply to post money into court that will stand as security for the lien.

    Most frequently the amount that is posted as security is the value of the lien on its face; however, the full amount of the lien does not need to be posted. Where there is some serious dispute as to whether amounts are properly claimed as a lien, an applicant may attempt to have the Court order the security amount to be less than the lien claim. As is recited in the recent decision of Centura Building Systems v 601 Main Partnership, 2017 BCSC 1727 (CanLII) the test the Court applies in determining the security amount:

    1. first, the Court considers what claims should be taken into account and whether they are sustainable; and
    2. second, the Court then considers what amount is appropriate security based on what claims are sustainable.

    Underlying the Court`s analysis is the objective of the Builders Lien Act: to protect those who supply work and materials to a construction project so long as the owner is not prejudiced (Centura Building Systems, supra).

    In Centura Building Systems, supra, the defendants were the owners and developers of certain lands and retained the plaintiff to provide steel studs framing, insulation, drywall and related work. Disputes arose concerning alleged deficiencies and delays by the Plaintiff and it was terminated. The Defendants withheld ordinary holdbacks under the Builders Lien Act as well as the final draw in relation to their claims against the Plaintiff for alleged delays, deficiencies and costs to complete the project.

    Among other things, the Plaintiff claimed the value of its work exceeded the value of the contract and that it was entitled to charge and include in its lien costs beyond the contract price. Among other things, the Defendants alleged that the lien claim where more than twice the Plaintiff`s billings on the project and exceeded all amounts remaining outstanding on the contract all despite the contract being terminated before completion.

    In applying the two-pronged test for the amount of security property posted, the Court found that a significant portion of the difference between the amounts the two sides claimed was lienable should not be secured by the powerful pre-judgment weapon that is a builders lien. The Court instead reduced the amount that had to be posted from the $1.136 million claimed to $550,000 and, in so doing, noted the large sum of money that was already required to be held back.

    Centura Building Systems, supra is an example to both those who would claim and those who would seek to discharge builders liens that the amount that might be required to be posted to secure and discharge a lien may be far less than the face value of the lien. The case is a reminder that claiming the proper lien amount can substantially reduce the issues in dispute when a lien is claimed and avoid potentially adverse cost consequences to a lien claimant. Generally, lien claimants are held to a very high standard in properly filing a lien considering the powerful tool that builders liens are and the potential harm that can be wrought by filing a lien.

    While beyond the scope of this article, it should be noted that parties represented by legal counsel can and often arrange to have a lien discharged by funds being held in trust with a lawyer to secure the lien. Such funds are held on undertakings not to dole out the funds unless in accordance with the mutual agreement of all relevant parties or further to the order of the Court. This is often a cost and time-savings measure to clients and should be explored with clients by legal counsel assisting them in lien disputes.

    If you have any questions about any construction disputes including, but not limited to, those matters related to builders liens please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155, 250-869-1156 or at burgess@pushormitchell.com. You may also contact anyone in our construction law group.

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

    There is a new trend in leases of Westbank First Nation’s reserve lands. Developers and landlords are moving to 125 year terms, up from the previously common 99 years, and agreeing that the lease may not be cancelled by the landlord during the term.

    The key features of this new form of lease are:

    • 125 year term allows plenty of time for build out and still have 99 years left on the term when selling subleases; and
    • non-cancellable lease provides an even greater level stability for mortgage-holders and subtenants by eliminating the need for non-disturbance agreements from the landlord.

    Further, CMHC has approved for use with insured mortgages of leasehold interests on reserve for homes which are leased directly from the landlord (i.e. are not part of a larger development with a head lease and sublease structure).

    If you would like to use the 125 year non-cancellable lease, you need to ask for it when negotiating your offer to lease. We can help.

    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 worry for most of my clients with young children is appointing a guardian to care for their minor children in the event of their demise. Once they have settled and agreed on a choice of guardian, a second worry is that the guardian they have appointed may not be able to afford to raise an additional one, two or even three children. A simple clause can be included in a young couple’s Last Wills to try and cover off this “worry”, such as:

    “I should like my Trustees to ensure, to the extent that it is reasonably possible, keeping in mind the funds at their disposal and other relevant matters, that no guardian of any minor child of mine suffers any financial burden by reason of anything he or she may do in the course of this guardianship whether or not the act in question falls strictly within the scope of her duties as guardian. I express the hope (but without imposing any trust or binding obligation) that my Trustees will exercise any powers of maintenance and advancement or any similar powers which they may have, by statute or under my Will, in regard to my child in such a way as to ensure that no such burden or loss is suffered. I trust that the guardian will accept that it is my wish that these powers be exercised in that way.”

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

    Most employers are aware of the obligation to provide an employee with notice of termination or pay in lieu of notice. However, many employers are surprised to learn that an employee who is terminated without cause prior to starting work is similarly entitled to reasonable notice or pay in lieu of notice. This was the case in Buchanan v. Introjunction Ltd, 2017 BCSC 1002 (“Buchanan”), where an employee was awarded six weeks’ pay in lieu of notice after his accepted offer of employment was “retracted” prior to the first day of work.

    Mr. Buchanan applied for a job as a senior software engineer with Introjunction. He was subsequently offered the job and signed a written employment contract. The contract stated that his start date was November 1, 2016. Mr. Buchanan quit his other job in anticipation of starting work at Introjunction. Unfortunately for Mr. Buchanan, Introjunction had a change of heart with respect to its staffing needs and “retracted” its offer before his start date. As Mr. Buchannan was now jobless, he sued Introjunction for wrongful dismissal.

    At trial, Introjunction conceded that employees who accept a position but are subsequently dismissed prior to the first day of work are entitled to reasonable notice or pay in lieu of notice absent an express term in the employment contract to the contrary. However, it argued that a probation clause in the contract permitted it to terminate Mr. Buchanan’s employment without notice or pay in lieu of notice. The probation clause stated that Mr. Buchanan’s employment was subject to a probation period of three months commencing on the first day of employment.

    The Supreme Court of British Columbia disagreed with Introjunction for two reasons. First, the probation clause only became effective on the first day of employment. As Mr. Buchanan never made it to the first day of employment, the clause was not enforceable. Second, Introjunction did not assess Mr. Buchanan’s suitability for the position. The purpose of a probation clause is to assess the suitability of an employee. An employer can generally dismiss an employee without notice or pay in lieu of notice if an employee proves unsuitable. However, the assessment of suitability must be done in good faith. Given that Mr. Buchanan was fired before starting work, Introjunction had not engaged in a reasonable assessment of his suitability for the position. Accordingly, Introjunction could not rely on the probation clause to escape its duty to provide Mr. Buchanan with reasonable notice.

    As a result, the Court concluded that Mr. Buchanan had been wrongfully dismissed and awarded him damages in lieu of 6 weeks’ notice amounting to $14,424.

    This case serves as an important reminder that employees – even those who have not started work – are entitled to reasonable notice of termination. Employers should exercise caution when terminating an employee prior to the start date as severance obligations may arise prior to the employee commencing work. Although Mr. Buchanan was awarded six weeks’ pay in lieu of notice, the damages award could have been significantly higher if Mr. Buchanan was older or Introjunction had induced Mr. Buchanan to leave his prior employment.

    When a party commences litigation, the courts and rules of court provide plaintiffs a fair amount of latitude to control the pace of their case and to determine how and when the matter proceeds to the next steps in litigation. This discretion allows the plaintiff the time necessary to obtain proper counsel if they so choose and to have meaningful settlement discussions and prepare evidence prior to trial. However, the control given to plaintiffs can also be a source of frustration to defendants who are anxious to proceed to trial when they expect to be exonerated.

    As is illustrated in the recent decision of Scurfield v Air Canada, 2017 BCSC 1437 (CanLII) there is a limit to how much the courts will countenance a plaintiff taking the time with their case.

    In 2008 Mr. Scurfield was practicing as a lawyer in Alberta. He alleged that in March of that year on a Jazz Air flight from Calgary to Kamloops he was falsely accused of vandalizing a washroom on a plane by urinating all over it. He further alleged that the cascade of events which followed this false allegation included Mr. Scurfield being wrongly detained and assaulted by flight crew, the RCMP being provided false information about his activities and the RCMP falsely arresting and imprisoning him as well as causing injury during the arrest.

    Mr. Scurfield commenced his claim one day before the expiration of the applicable limitation period naming the airline, the RCMP and others as defendants. 11 months later Mr. Scurfield served his list of documents. He did not respond to a request for particulars and was not diligent in providing copies of his listed documents. He made no apparent attempts to put any parties under oath and conduct an examination for discovery.

    There were several cautions by the defendants about the inordinate delay in Mr. Scurfield prosecuting his case that apparently fell on deaf ears. Finally, the defendants made a settlement offer advising that the offer would be brought to the attention of the court in the event that Mr. Scurfield rejected the offer and opposed an application for want of prosecution.

    The court noted that Rule 22-7(7) of the Supreme Court Civil Rules provided authority to dismiss a claim for want of prosecution and that the well-established test for applying this rule was affirmed in 0690860 Manitoba Ltd. v. Country West Construction Ltd., 2009 BCCA 535 (CanLII) and includes consideration of the following factors:

    • the length of the delay and whether it is inordinate;
    • the reasons for the delay and whether the delay is excusable;
    • whether the delay has caused serious prejudice to the defendant in presenting a defence and, if there is such prejudice, whether it creates a substantial risk that a fair trial is not possible at the earliest date by which the action could be readied for trial and after its reactivation by the plaintiff; and
    • whether on balance, justice requires dismissal of the action.

    The court concluded at para. 22 that “…there has been a lengthy delay, it is inordinate and no excuse has been offered and the delay has caused prejudice, creating a substantial risk that a fair trial is not possible.”

    Mr. Scurfield attempted to stave off the application by firing his counsel immediately before the hearing of the application. He also filed a Notice of Intention to Proceed (required when there has been no steps in litigation for a year), but did nothing thereafter. These were not considered meaningful attempts at prosecuting the claim nor excused Mr. Scurfield’s failure to do so and, as such, the Court dismissed the action for want of prosecution and awarded costs of the application and litigation to the defendants.

    It should be noted that courts will not generally entertain an application for dismissal for want of prosecution where the applicable limitation period has not expired. It should also be noted that the determination of whether to dismiss for want of prosecution is expired is a fact-driven exercise which might consider a myriad of facts.

    All that said, Mr. Scurfield’s case is illustrative of the fact that plaintiffs are under an obligation to pursue their claim with or without counsel. Defendants have a right to defend themselves and that right must be respected by the claim proceeding in a manner that preserves the evidence and witnesses that defendants and justice might require.

    If you have commenced a claim and are having difficulties in pushing the matter forward, it may make sense to obtain proper legal advice on how to prosecute your claim or even to represent your interests in a dispute before facing an application for dismissal for want of prosecution. Conversely, if you have been named in a claim which seems to be going nowhere, it might be in your interests to obtain proper legal advice respecting or to retain counsel to evaluate the chances of success and seek an application to dismiss the claim for want of prosecution.

    If you have any questions about any litigation matters, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155, 250-869-1156 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.

    Part One of this article considered the circumstances in which a separation agreement governing the division of property and debt may be set aside by the court on grounds such as improper disclosure or advantage obtained by one party giving rise to significant unfairness. Part Two considers common law grounds that may also invalidate an agreement on the basis of it being significantly unfair.

    Section 93(3) (d) of the FLA is essentially a catchall provision that permits the court to set aside or replace a previous court order on common law grounds (i.e. judge made law). Common law grounds may include: mistake, duress, or lack of capacity.


    At law there are three types of mistakes: common, mutual and unilateral. Common mistake occurs when both parties operate under the same misapprehension. For example, a spouse intends to sell a painting that unbeknownst to both spouses has been damaged and both parties are unaware of its present condition. Mutual mistake occurs when both parties have made a mistake but their mistakes are different, while unilateral mistake involves only one party: Hannigan v Hannigan, 2007 BCCA 365. In practice, mutual and/or common mistake are often used interchangeably. Generally, the courts are more inclined to set aside an agreement based on mutual or common mistake on account of a failed “meeting of the minds” and thus the contract is void ab initio (i.e. invalid from the outset).

    Examples of common/mutual mistakes warranting setting aside an agreement include:

    • spouses operating under the mistaken belief as to the amount of equity in their property: Brandt v Brandt, [1998] B.C.J. No. 448 (QL) (S.C.)
    • spouses operating on the misapprehension that one party did not have an interest in a company: Hannigan v. Hannigan, 2007 BCCA 365.

    However, there are limits. The court has been clear that a unilateral misapprehension of facts or law will not on its face immediately call into question the validity of a settlement agreement: Akenhead v Akenhead, (2000) BCCA 249 – particularly, if a spouse who seeks to have an agreement set aside is in some manner the author of his/her own misfortune. For example, a spouse initially fails to properly ascertain an asset’s true value and subsequently raises a legal argument on the basis of the harm the spouse now suffers. In this situation, the court will be less apt to assist the spouse by setting aside an agreement to benefit them on account of their earlier inattention or carelessness.


    The courts have defined duress as being any “form of oppressive contractual conduct directed by one party towards another to compel them to act to their disadvantage”: G. (G.C.) v. T. (M.J.), 2016 BCSC 1277. To establish a claim of duress a party will need to show that he/she did not enter into a separation agreement of their own free will. The courts have distinguished between two types of duress: emotional and economic.

    Emotional duress is the notion that a party’s mental or physical liberty is under attack. Importantly, the courts in British Columbia have held that emotional distress is insufficient to establish emotional duress. A party alleging emotional duress must show that they were facing – what the courts characterize as –“emotionally oppressive conduct” under the threat of physical harm or imprisonment to themselves or that of their family members.

    Separately, advancing a claim of economic duress must demonstrate that they were subject to urgent and compelling economic pressures that which vitiated their ability to consent to the agreement: Jonasson v. Jonasson, [1995] B.C.J. No. 1052 (QL) (S.C.).

    In resolving whether economic duress is proven the court will consider the following factors as set out in Gordon v Roebuck, ( 1992), 9 O.R. (3d) 1 (C.A):

    • Did the party protest the signing the agreement?
    • Was an alternative option available to the party?
    • Did the party receive independent legal advice?
    • After entering into the agreement did the party take steps to avoid it?

    Lack of Capacity

    Legal capacity is a concept that a person has the attributes to govern his or her own personal, financial and legal affairs. If a person does not have soundness of mind or capability to appreciate decisions made about their personal or financial affairs it may be said that he or she lacked capacity.

    Proving that a party lacked capacity is not without challenge. There must be compelling evidence (often in the form of medical opinion) that a person was incapable of understanding the terms of the agreement. Case authorities in British Columbia suggest that alcohol or drug addiction is generally not enough to show that a person lacked of capacity. Something more is required, such as evidence of a chronic cognitive impairment or other mental infirmities such as severe depression.

    To be sure, setting aside a separation agreement on common law grounds is a highly fact specific exercise that requires forceful evidence. In all cases, the onus remains on a party seeking to set aside a separation agreement on grounds of mistake, duress, or lack of capacity to convince the court that it is justified in the circumstances.

    Earlier this month the provincial government’s Office of the Superintendent of Real Estate published proposed rule changes to the Real Estate Services Act (the “Act”) that would affect a real estate licensee’s ability to represent a buyer and seller at the same time, a concept known as dual agency. Dual agency occurs when a real estate licensee acts for more than one party in a real estate transaction. This can include a buyer and a seller, lessor and lessee, assignor and assignee or two or more buyers, lessees or assignees. Essentially, the realtor acts on both sides of a real estate transaction.

    Currently, a licensee is able to represent parties on both sides of a real estate transaction. The proposed changes to the Act would prohibit this practice.

    The Office of the Superintendent of Real Estate is a regulatory agency of the provincial government that protects consumers who are buying, selling or renting a home. The Office carries out the duties of the Superintendent of Real Estate. The Office’s government website provided the following statement regarding the changes:

    “The new rules address several of the recommendations of the Independent Advisory Group on real estate regulation in B.C. and aim to enhance consumer protection through a number of mandatory changes to licensee conduct and practices. Key rule changes include prohibiting the practice of dual agency, except in remote and under-served locations, and enhancing consumer education and awareness by increasing mandatory licensee disclosures regarding representation and remuneration.”

    A proposed exception to the ban on dual agency would be if the real estate transaction occurs in a remote area of the province with limited access to realtors. The proposed changes have not defined what is considered to be “remote”.

    The proposed rule changes would take effect on January 15, 2018.

    For details on the exact wording of the proposed changes click here.

    This is provided as commentary ONLY; it should NOT be construed as legal advice. Patrick Bobyn is an associate at Pushor Mitchell LLP who practices in the area of Real Estate, Business Law and Wills/Estates. You can reach Patrick at 250-869-1286 or bobyn@pushormitchell.com if you have questions regarding the proposed Real Estate changes or real estate transactions in general.

    The U.S. Centers for Disease Control and Prevention (CDC) estimates at least 1.7 million people suffer brain injuries each year in the USA. A large percentage of traumatic brain injuries go undiagnosed and untreated, particularly in hospital emergency rooms. According to a recent University of Washington study, 56 percent of mild traumatic brain injuries went undiagnosed in emergency room visits.

    The study found that as many as 80 percent of all adults with a traumatic brain injury are discharged the same day without being admitted to the hospital.

    The study also reasoned that emergency rooms often focus on ruling out severe brain injuries through imaging, and do not thoroughly screen for brain injuries with negative imaging results and injuries with no reported loss of consciousness. These facts do not rule out a brain injury.

    According to the CDC, negative imaging results in CT scans and MRIs also do not rule out brain injuries. In addition the University of Washington study says that brain injury victims often deny simple questions regarding loss of consciousness, but then confirm brain injury symptoms by recapping events that note memory gaps or periods of confusion.

    Many patients with severe orthopedic injuries also suffer from overlooked brain injuries. Despite the lack of initial diagnoses, many suffer from long-term, life-altering impairments.

    The key root word in “traumatic brain injury” is “trauma.” Brain injury specialists explain that brain injury victims have actual physical damage to the brain. Brain injuries have a litany of symptoms, which include headaches, fatigue, depression, anxiety, irritability, ringing in the ears, sensitivity to light, mood swings, changes in vision, slow or foggy thinking, and cognitive impairment. These symptoms present in a variety of combinations.

    Without an initial traumatic brain injury diagnosis, victims are not appropriately monitored and treated.

    The University of Washington study notes that undiagnosed brain injuries have clinical consequences. It is important for patients to be aware of brain injury symptoms, to continue to monitor the presence of symptoms even if a brain injury is not initially diagnosed, and immediately seek medical help if brain injury symptoms present

    For a list of common brain injury symptoms, see the Brain Injury Symptoms Form here: Brain Injury Symptoms Form.

    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.

    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.

    Whichever jurisdiction you own assets in, an estate grant will be required for those assets in that jurisdiction. Your Executor will need to obtain an estate grant in one jurisdiction first (usually where you were domiciled and/or held the bulk of your assets) and then have that estate grant “resealed” in every other jurisdiction where you held your assets.

    This is a fairly common occurrence in BC as many residents here have property elsewhere (AB, Arizona etc.) It is a time consuming process, but mainly an administrative formality to give your Executor the ability to deal with your property in another jurisdiction.

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

    Employees who voluntarily resign from their employment cannot successfully sue their employers for wrongful dismissal. This, of course, makes sense because it was the employees’ decision to end the employment relationship. The phrase “I quit” is generally a good indication of an employee’s intention to resign. However, employers must not rush to affirm the resignation as doing so could result in a court finding that the employee did not resign but was wrongfully dismissed.

    In Bishop v. Rexel Canada Electrical Inc., 2016 BCSC 2351, an employee sent an email to his supervisor advising that he “would not be returning” to work if his supervisor continued to add to his job responsibilities. The employee was angry and upset at the time he sent the email. He felt overburdened at work and previously protested his increasing workload. Upon receiving the email, the supervisor phoned the employee and “confirmed” the employee’s intention to resign. The employee later retracted the resignation stating that it was not his intention to resign and sued his employer for wrongful dismissal. The Court agreed with the employee, finding that the employer hastily rushed to confirm the resignation. It used the apparent resignation as a convenient excuse to get rid of a disgruntled employee. As the employee had not actually resigned, the employer’s actions amounted to a wrongful dismissal. The employee was awarded 20 months’ pay in lieu of reasonable notice.

    A resignation must be clear and unequivocal. As stated by our Court of Appeal in Beggs v. Westport Foods Ltd., 2011 BCCA 76, a finding of resignation involves a two-part analysis:

    1. Did the employee intend to resign?; and
    2. Did the employee’s words and acts, objectively viewed, support a finding that he or she resigned?

    The court will take into account an employee’s state of mind at the time of resignation. If a resignation occurs during a heated exchange, an employer has a duty to revisit the purported resignation after a cooling off period to gauge the employee’s true intention. This principle was summarized in Lelievre v. Commerce and Industry Insurance Company of Canada, 2007 BCSC 253:

    … the law is clear that where an emotionally upset and angry employee exclaims “I quit”, the issue of whether he/she has resigned is not clear cut. The law recognizes that such utterances may not constitute a valid resignation. Nor should such a declaration be accepted without question by the employer. Rather the onus is on the employer to not accept such a spontaneous declaration without proper deliberation…

    In many cases, an employee’s intention to resign will be obvious. But not all cases are straightforward, particularly where the resignation results from an outburst or argument. In such circumstances, employers are wise to treat a resignation cautiously and reassess the employee’s intention once cooler heads have prevailed.

    As I’ve previously written, the Winnipeg Condominium Corporation No. 36 v. Bird Construction, 1995 CanLII 146 (SCC), [1995] 1 S.C.R. 85 (“Winnipeg Condo”) decision is an authority by which a party may seek to recover against negligent builders and contractors where there may otherwise be no right to recover either because of the expiration of the ordinary applicable limitation period or because there is otherwise no contractual or proximate relationship between the parties giving right to claim in contract or tort (negligence).

    While Winnipeg Condo may support a right to sue that might not otherwise exist, the case is applied narrowly. This narrow application was underscored in the recent decision of The Owners, Strata Plan KAS 3575 v Renascence Enterprises (Shannon Lake) Corp., 2017 BCSC 1336 (CanLII) (“Strata Plan KAS 3575”).

    In Strata Plan KAS 3575, the strata, their insurer and National Home Warranty sued a number of parties involved in the construction of a residential condominium development. It was alleged that Feta Engineering Consultants Ltd. (“Feta”) acted as a structural engineer and, in that role, had negligently overseen the installation of the common property parking area. It was alleged that there were a number of deficiencies with the design and installation of the parking area and that the strata was required to repair such deficiencies.

    Crucially, the plaintiffs did not allege that Feta’s work had or may have posed a substantial danger or threat of danger to the health or safety of the strata’s occupants or those visiting the strata. Feta submitted that there was no basis to recover against it for pure economic loss; that is, simply the costs to remedy the allegedly deficient parking area.

    The court held that the law is clear that there is no recovery for pure economic loss for deficiencies or shoddy work were such work does not pose a danger or threat to the health or safety of persons (para. 38).

    In arriving at its decision, the court cited M. Hasegawa & Co. Ltd. v. Pepsi Bottling (Canada), 2002 BCCA 324 (CanLII) which held the duty of care manufactures have is to ensure their product do not cause personal injury or physical danger to property; it does not extend so far as to allow recovery for defective or shoddy products. The court also cited Kayne v. Strata Plan LMS 2374, 2013 BCSC 51 (CanLII) where it was held at para. 167 that:

    “…[I]n cases such as this involving allegedly defective construction of a residence (i.e. no damage to anything other than the thing itself), the Supreme Court of Canada has made it clear that the builder does not owe a duty of care to a subsequent purchaser unless the alleged defect is more than just shoddy construction. Rather, it must pose a “real and substantial danger” to persons or property.”

    In short, plaintiffs who are dealing with negligent construction continue to ordinarily only be able to recover against the parties they contracted directly with and, it is only if the construction poses a danger or threat that such plaintiffs could seek to recover from the parties originally designing and/or installing such dangerous and threatening features.

    If you have any questions about any negligent construction, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155, 250-869-1156 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 provincial government recently announced plans to reinstate the British Columbia Human Rights Commission following a 15 year hiatus. British Columbia is the only province in Canada without a human rights commission.

    The British Columbia Human Rights Tribunal has been responsible for resolving complaints of discrimination in British Columbia since the Human Rights Commission was disbanded in 2002. The key distinction between a human rights commission and human rights tribunal is that a tribunal serves an adjudicative function (i.e., it acts like a court) whereas a commission generally has a broader mandate that includes education, investigations and complaint screening. For example, commissions frequently draft papers and conduct research that assist in policy development.

    Not all human rights commissions are the same. Some commissions in Canada are involved in the adjudication process while others are not. For example, both Ontario and the federal government have a commission and tribunal. However, in Ontario, complaints of discrimination are filed directly with the Tribunal while the Commission works to promote the advancement of human rights. Federally, complaints are filed with the Canadian Human Rights Commission – not the tribunal. The Commission may conduct an investigation and refer the complaint to the Canadian Human Rights Tribunal for formal adjudication if it believes the compliant has merit. Otherwise, the Commission will dismiss the complaint.

    Complaints of discrimination in British Columbia are made directly to the British Columbia Human Rights Tribunal. This is known as a direct access system. It is unknown whether reinstating the Human Rights Commission would return British Columbia to a two-step adjudication process or whether the Human Rights Commission would be an arm’s length organization dedicated to the promotion of human rights.

    The government expects to commence a consultation process with stakeholders and the public in September. A bill introducing new legislation is expected in 2018.

    Section 93 of the Family Law Act (the “FLA”) sets out the legal basis under which a court may set aside a written (and properly witnessed) agreement respecting property division. In general there are two grounds upon which an agreement may be set aside. First, if there is a defect in the negotiation or drafting process itself. Second, if the agreement results in significant unfairness to one or both of the parties.

    For the purposes of this article the focus will be confined to first ground – if there is a defect in the process of making the agreement.

    Section 93(3) of the FLA sets out the following conditions in which a court may set aside an agreement and replace it with a court order. These include:

    (a) failing to disclose significant property, debts, or other information relevant to the negotiation of the agreement;

    (b) a spouse taking improper advantage of the other spouse’s vulnerability, ignorance, need or distress;

    (c) a spouse not understanding the nature or consequences of the agreement;

    (d) other circumstances that would, under common law, cause all or part of a contract to be voidable (i.e. not legally binding).

    Improper Disclosure

    The courts have been clear: full disclosure of all financial information between spouses is the cornerstone of any legally binding agreement. Failure by either spouse to disclose important assets, debts or liabilities may put the agreement at risk and vulnerable to court intervention. As the Supreme Court of Canada emphasized in Rick v. Brandesma, 2009 SCC 10, imposing a duty on separating spouses to make full and honest disclosure ensures that the integrity of the negotiating process remains in these uniquely vulnerable circumstances. The policy for this is simple. Spouses who intend to execute an agreement must fully understand the agreement they are entering into. The court’s view is that a spouse cannot be said to have made an informed decision about their rights if it is premised on incomplete information. Apart from the court’s ability to set aside agreement under s.93(3), if there is evidence that a spouse has deliberately mislead or induced the other spouse to sign a grossly unfair agreement, the offending spouse may also expose themselves to a separate claim for fraudulent misrepresentation.

    Improper Advantage

    Section 93(3)(b) of the FLA permits the court to set aside an agreement if there is sufficient evidence of one spouse taking improper advantage of the other on the basis of vulnerability, distress, or ignorance. However, this hurdle is not easily overcome and a spouse who intends to advance an argument on account of distress and/or vulnerability must have compelling evidence in order to succeed.

    The fact that one spouse may be financially stronger or may have sought legal advice will not immediately raise the issue of improper advantage. Similarly, the fact that one spouse may experience acute emotional distress greater than the other will not constitute an improper advantage. In every case, the courts will ask itself the fundamental question: did the spouse who seeks to set aside the agreement have, in fact, really no alternative available to him or her but to sign the agreement? If the answer is “yes”, a claim for improper advantage may prevail on this basis.

    Nature and Consequences of the Agreement

    It is an organizing principle of contract law that a party to an agreement must understand the terms of the bargain. Section 93(3)(c) of the FLA is designed to assist a spouse if the court is satisfied that he or she failed to understand important terms of the agreement. While this may seem a valid argument, the courts will not assist a spouse who failed to take reasonable efforts to inform him or herself (such as obtaining independent legal advice when recommended to do so) of key terms of the agreement. Likewise, after receiving independent legal advice, if a spouse signs an agreement to their own detriment, they are unlikely to succeed on the basis that they did not understand important terms and that the agreement is grossly unfair. Nevertheless, if there is convincing evidence that a spouse failed to grasp the fundamental terms which results in an inequitable bargain, the court may be motivated to intervene. While there is no requirement that independent legal advice is mandatory, the absence of independent legal advice will generally be insufficient to invalidate the agreement.

    Above all, s.93 (3) of the FLA is discretionary. Given the court’s general reluctance to disturb a bargain between spouses, a spouse who seeks to set aside an agreement must possess strong evidence and a very good reason for doing so.

    You are doing your estate planning and wish to set up a trust to look after your children until they are old enough to handle their own money, or to look after a spouse, before giving the capital to children from a previous relationship, or to provide for a disabled child for a lifetime.

    Many wills and family trusts create trusts which leave a wide range of discretion for the trustee of the trust created. The discretion is important because it is hard to predict what will happen in the future with the lives of the beneficiaries or with changes to the tax system in Canada. You want your trustee to have as much flexibility as possible to deal with any contingencies which may arise.

    You would also like to give your trustee some guidance on what you have in mind for how they make decisions about what to advance to beneficiaries and when. You definitely want them to advance for the education of your children, including post-secondary, but do you want them to help your child buy a car if they need it to get to school? Do you want them to advance money from the trust to help your child make a down payment on a house? Do you want the trustee to advance funds to a child to invest in a business? How about investing in an investment opportunity?

    With a second spouse, where you want to preserve some of your estate for your children, if there is the right to encroach on capital, what do you see as circumstances where this would be appropriate? Obviously, the trustee can encroach for medical treatment or care, but what about travelling or buying a holiday home?

    The further you get from the necessities of life, the more helpful guidance will be to your trustee. You can provide this guidance by preparing a letter of wishes for your trustee. This is a private instruction letter to your trustee, which is not available to your beneficiaries, so you can be as candid in your thoughts as you wish, without the fear of offending someone.

    Your lawyer can give you guidance, based on the law and on his or her experience, to help you draft this letter of wishes. It can be done when you are creating the trust, or afterwards, upon reflection. Your trustee will be grateful for the guidance!

    In a world full of social media, online banking and identities, dealing with digital assets as part of your Will is extremely important. Digital assets are frequently ignored and with the growth in technology, properly dealing with them as a part of your Estate Plan is increasingly important. If they are not properly dealt with and disposed of upon death, there can be a myriad of negative consequences, affecting both the deceased’s finances and reputation.

    It is important that your Will gives your Executor the power and privilege to deal with any digital or electronic property or online accounts that form part of your Estate. These powers should include accessing, retrieving and downloading, or securely deleting digital or electronic property; managing or disposing of domain names; continuing operation of or dismantling websites managing or closing accounts (including social media accounts, email accounts, cloud storage accounts, online gaming accounts, subscription media accounts and electronic commerce accounts etc.); protecting or securely deleting your digital works and related intellectual property, including documents, blog posts, photographs, videos and websites; and generally protecting your personal information etc.

    The value of an up to date Will cannot be underestimated.

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

    Reference checks can put former employers in an awkward position. Employers want to tell the truth but may be concerned about the potential legal consequences of providing a bad reference. However, a recent case out of Ontario suggests that employers should not be afraid to tell the truth when asked to provide a reference for a former employee.

    In Papp v. Stokes et. al., 2017 ONSC 2357, Mr. Papp’s employment was terminated without cause after 2.5 years of employment. Following his termination, Mr. Papp asked the President of his former employer, Mr. Stokes, to be a reference for him. Mr. Stokes agreed. Mr. Papp started looking for new employment and was advised by a potential new employer that he was its number one candidate subject to a successful reference check. The prospective employer contacted Mr. Stokes who informed the potential employer that there was “no way” he would re-hire Mr. Papp, he was “not that pleased” with the quality of Mr. Papp’s work, that Mr. Papp “has a chip” on his shoulder, and that Mr. Papp was let go because of performance and attitude issues. Mr. Papp was subsequently advised by the prospective employer that he would not be offered the job because of the reference check. Mr. Papp sued Mr. Stokes and his former employer for, amongst other things, defamation.

    The Court disagreed with Mr. Papp’s argument that he had been defamed, finding that Mr. Stokes characterization was protected by two defences: (1) it was truthful; and (2) it was made in a protected context and thus was protected by qualified privilege.

    With respect to the former, truth is a complete defence to defamation. At trial, the former employer called a number of witnesses who confirmed the accuracy of Mr. Papp’s statement. While the statements made by Mr. Stokes hurt Mr. Papp’s reputation, they were true and, as a result, the defamation claim failed.

    With respect to qualified privilege, the prospective new employer had an interest in receiving the information and Mr. Stokes had a corresponding duty or interest to communicate the information. As such, the statements were made in a protected context. Given that the statements were not reckless or made in malice, the defamation claim was unsuccessful.

    This decision is good news for employers who are apprehensive about providing negative references for former employees. The old adage remains true today: honesty is the best policy. An employer will likely be able to insulate itself from a successful defamation claim where a negative reference is substantially true or so long as it is not malicious or reckless.

    What does your Executor have to do?

    Being an Executor is a big job. Be careful who you pick, and make sure that they are willing to do it. If you have been appointed Executor in a Will there are a wide range of obligations and responsibilities that you must fulfill. If you do not wish to act as the Executor, you may decline to do so by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply to be the Administrator of the Estate.

    What do an Executor’s duties include?

    1. Locating the Will and reviewing it with the Estate Lawyer. Ensure that it is the deceased’s last Will. The Estate Lawyer can assist by conducting a Wills Search through Vital Statistics.
    2. Attending to the funeral and other family matters.
    3. Determining if survivors urgently require immediate funds for living expenses. Financial institutions will sometimes release funds from the deceased’s account if urgently required by the survivors.
    4. Reviewing important papers of the deceased and going to the deceased’s bank(s) to obtain a listing of the safety deposit box contents and the securities in safekeeping.
    5. Reviewing insurance policies to ensure adequate coverage is in place.
    6. Compiling a list of assets, values and debts.
    7. Reviewing outstanding debts (i.e.: mortgages, loans, agreements) to determine ongoing payment requirements.
    8. Obtaining serial number and registration particulars for all vehicles.
    9. Obtaining names and addresses of all beneficiaries, children and next of kin.
    10. Redirecting mail.
    11. Canceling credit cards and subscriptions.
    12. Returning pension cheques and government benefit cards.
    13. Applying for death benefits.
    14. Notifying financial institutions, life insurance agents and completing claims.
    15. Obtaining Death Certificates to enable transfer of joint tenancy properties and to claim insurance benefits.
    16. Obtaining Letters Probate to provide authority to the Executor to distribute the deceased’s estate according to the Will.
    17. The Estate Lawyer will conduct the Wills Search as noted above, prepare the required Affidavits and documents and make application to the Court for an Estate Grant (previously called a Grant of Probate). Notices will be sent with a copy of the Will to the beneficiaries and next of kin.
    18. Upon receiving the Estate Grant, the Executor may then gather in all the funds of the Estate and transfer any real estate into the name of the Estate.
    19. Advertising for creditors and reviewing creditor’s claims.
    20. Collecting any outstanding amounts due to the deceased and paying Estate debts.
    21. Attending to income tax returns and the tax clearance certificate. This certificate confirms that all income taxes or fees of the Estate are paid. This is an important step because the tax department can potentially impose taxes that you, as Executor, don’t know about.
    22. Preparing an accounting of monies received and paid out with the proposed final distribution.
    23. Distributing the Estate to all beneficiaries (after the legislated waiting period), including a ‘Release’ of any claims against you as the Executor for execution by the beneficiaries before they accept their share of the Estate.
    24. Distributing the funds to the beneficiaries once they have executed a Release.

    The advice of a lawyer should always be sought to determine the correct course of action. Estates can be very complex, even when there are minimal assets to distribute.

    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/estate administration 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.

    One of the first tasks in any potential litigation matter is to identify the applicable limitation period. Generally, since June 1, 2013, BC’s Limitation Act, S.B.C. 2012, c. 13 (the “Limitation Act”) provides that potential claims are governed by a two year limitation period.

    Under s. 8 of the Limitation Act, this two year limitation period begins to run from the first day on which a person knew or reasonably ought to have known all of the following:

    • that injury, loss or damage had occurred;
    • that the injury, loss or damage was caused by or contributed to by an act or omission;
    • that the act or omission was that of the person against whom the claim is or may be made;
    • that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

    There is a large body of case law detailing when the Courts have found that each of the discoverability elements have been satisfied and there are specific discoverability rules for particular types of claims. The limitation period also does not begin to run right away for minors or persons under disabilities. However, these issues are beyond the scope of this paper.

    Put briefly, if a party is not under a disability and doesn’t bring its claim within two years of knowing it might have one, it potentially loses the right to make a claim forever.

    The primary way in which the running of limitation periods may be extended is through circumstances which trigger s. 24 of the Limitation Act. S. 24 provides that an acknowledgment of or payment towards a debt or liability made before the expiration of the limitation period resets the limitation period.

    Importantly, s. 24 requires a written acknowledgment to be in writing and to be either signed by hand or by electronic signature within the meaning of the Electronic Transactions Act, S.B.C. 2001, c. 10 (the “ETA”). Under the prior version of the Limitation Act, there was no provision for signatures being electronic. Presently, there is no prescribed form for electronic signatures and there is little judicial clarification as to what constitutes an electronic signature for the purposes of the Limitation Act.

    S. 1 of the ETA defines an electronic signature as “…in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record.”

    In a case concerning the Labour Relations Code1 the Labour Relations Board found that a union using Adobe’s E-sign program where participants would enter their nature, signature and date in an electronic form were electronic signatures.

    In an unreported decision2, the Court found that an email that was concluded with the equivalent of a goodbye and a nickname did not satisfy the requirements of s. 24 of the Limitation Act.

    Presently the only reported court decision in BC concerning when emails satisfy the requirements of s. 24 of the Limitation Act and the definition of electronic signature from s. 1 of the ETA is Johal v Nordio, 2017 BCSC 1129 (CanLII).

    In Johal, the debtor argued that attaching his name to the bottom of an email was insufficient to meet the requirements of the ETA and that something akin to a digital signature was required. The email in question concluded with the debtor’s name, his position and contact information. The Court noted that the font used for the sender’s name was enlarged.

    The Court rejected the debtor’s arguments and found that the legislation’s focus is on whether the sender created a signature to identify him or herself as the composer and sender. The Court noted the following four requirements adopted in a Saskatchewan decision for electronic signatures in emails:

    1. the presence of some type of information on the emails;
    2. such information may be in electronic form;
    3. the information must have been “created or adopted [by the person] in order to sign a document”; and
    4. the information must be “attached to or associated with the document”.

    It is notable that the signature in question in Johal appeared to be the sort that is standard and automatically generated when the sender opened an e-mail window. As such, the signature would likely have required no input by the sender to be included in his email other than to have originally set up the automatic signature line.

    There is no substantial analysis in Johal as to why the signature block in the email in question satisfied s. 24 of the Limitation Act and s. 1 of the ETA, but the case raises the argument that any e-mail including the sender’s name in a signature line, if it contains an acknowledgement of a debt or liability before the expiration of the applicable limitation period, may serve to extend that limitation period for another two years after the date of the e-mail.

    Potential debtors and defendants should proceed cautiously when exchanging emails with potential creditors and claimants knowing that such emails may extend potential limitation periods. Conversely, while the most prudent course of action remains for potential creditors and claimants to commence their claims early to avoid any limitation concerns, potential creditors and claimants may avoid their claim being statute barred through email acknowledgements of debts and/or liabilities by potential debtors or defendants.

    This area of law continues to evolve and, as such, it is critical for parties to a potential dispute to preserve all communications between them. Both sides to a dispute have an interest in resolving any limitations defences early and before much effort (or expense) is spent on the issue. As such, if readers retain legal counsel, it is essential that they provide their counsel with all documents they may have in relation to their dispute, especially if there are limitations concerns.
    1Working Enterprises Consulting & Benefits Services Ltd v United Food and Commercial Workers International Union, Local 1518, 2016 CanLII 29625 (BC LRB)
    2Klym v. EIFS ARMOUR Wall Systems Inc., 2017 BCSC 283 (22/Feb/2017)

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute, he’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 recent case from our Court of Appeal articulates the standard required to establish an entitlement to aggravated damages resulting from a wrongful dismissal.

    An employer is required to provide an employee with notice of termination or pay in lieu of notice. Employees may sue their former employers if they believe the notice or pay in lieu of notice is insufficient. Generally, damages allocated in wrongful dismissal actions are confined to the loss suffered as a result of the employer’s failure to provide notice. However, in limited circumstances, employees may be entitled to additional damages where the employer engages in conduct during the course of dismissal that is unfair or in bad faith. The latter damages – referred to as “aggravated damages” – compensate employees for the harm caused by the employer’s conduct (e.g., compensation for mental distress or loss or reputation arising from the manner of termination).

    The test for establishing aggravated damages was outlined by the Supreme Court of Canada in Honda v. Keays, 2008 SCC 39. Since then, there has been some confusion as to whether expert medical evidence is required to establish loss arising from the manner of termination. Earlier this month, the British Columbia Court of Appeal confirmed that, although objective evidence of loss is necessary, expert medical evidence is not required.

    In Lau v. Royal Bank of Canada, 2017 BCCA 253, the employer appealed the trial judge’s decision to award a dismissed employee $30,000 in aggravated damages. We previously summarized the trial judge’s decision here. The former employee was a mutual fund dealer who was terminated for just cause for dishonesty and allegedly fabricating bank records. The trial judge determined that the employer’s investigation into the alleged wrongdoing was flawed. The employer failed to establish just cause and Mr. Lau received nine months’ damages for lack of reasonable notice. Mr. Lau was also awarded aggravated damages for mental distress flowing from “a false accusation of failing to tell the truth” and the flawed workplace investigation. There was no evidence from family members, friends or third parties concerning the impact of the termination on Mr. Lau’s mental state. Despite this, the trial judge stated “I do not need medical evidence to prove that a false accusation of failing to tell the truth which is published can lead to mental distress.”

    The employer did not challenge the finding that it did not have just cause to terminate Mr. Lau’s employment on appeal. However, it did appeal the award of aggravated damages submitting that there must be medical evidence of a psychological condition such as depression when claiming damages for mental distress. The Court of Appeal held that the case law does not go so far as to require expert testimony from a medical professional but there must be an evidentiary foundation for such an award. It concluded that “damages for mental distress beyond the ordinary upset that accompanie[s] termination of employment cannot be evidenced simply from the demeanor of the plaintiff in the witness stand.” The Court of Appeal found that the trial judge erred by injecting her opinion of the impact of the termination on Mr. Lau’s mental state absent objective evidence. As a result, the award of aggravated damages was overturned.

    This case is an important one because it helps clarify the evidentiary standard required to establish an award of aggravated damages. As noted by our Court of Appeal, to receive aggravated damages based on mental distress, an employee is required to show that the manner of dismissal caused injury rising beyond the normal distress and hurt feelings that arise from the fact of dismissal. Expert medical evidence is not necessary in all circumstances but an employee is still required to adduce, at minimum, actual objective evidence in support of a claim for aggravated damages.


    The recent flooding throughout the Province of British Columbia and specifically the Okanagan region creates unique problems for First Nation Bands and their members. Flooding can have a significant impact on lands located adjacent to lakes and rivers. As the waters recede, there may be health and environmental issues, such as flooded septic fields, that will need to be addressed.

    Applicable Law

    Provincial laws and regulations that are intended to regulate environmental and health related issues that arise from flooding, such as British Columbia’s Environmental Management Act, do not apply on reserves as reserves are federal lands. Section 91(24) of the Constitution Act, 1867, states that the Federal Government has legislative authority over “Indians and Lands reserved for Indians. Unfortunately, the federal laws and regulations are often inadequate to ensure that the Tenant pays for the health and environmental damage. For example, there is no analogous federal legislation to the Environmental Management Act. As a result, First Nation Bands and their members must rely on the contractual provisions outlined in their leases, band council by-laws and the limited protections outlined federal acts and regulations such as the Indian Act, the Canadian Environmental Assessment Act, the Canadian Environmental Protection Act, 1999, and the Fisheries Act.

    “Buckshee” Leases

    On reserves where there are no land management powers, many of the lease agreements are known as “Buckshee” leases. Buckshee leases are informal leasing arrangements that have not been formally approved by Indigenous and Northern Affairs Canada. These leases do not provide the tenant with enforceable property rights, and landlords have limited options for enforcing tenant obligations. Despite the enforceability issues, Buckshee leases are common. For example, the Okanagan Indian Band estimates that over 1,500 Buckshee leases exist on their lands.

    Enforceability Issues

    An important question arises: Who is responsible for addressing the environmental and health related issues on lands where Buckshee leases exist? While many landlords believe their tenants would be responsible in such a situation, this may not be the case. Since Buckshee leases are often unenforceable, a landlord can be exposed to significant liability where environmental and health related issues arise on the lands subject to a Buckshee lease. This underscores the importance of enforceable and comprehensive lease agreements between landlords and tenants on reserve. If you have questions regarding the enforceability of a Buckshee lease or if you would like to convert the Buckshee lease into an enforceable lease, it is recommended that you speak to a lawyer.

    Justin Dalton is a lawyer at Pushor Mitchell LLP practicing in the area of First Nations Law. You can reach Justin at 250-869-1234 if you have questions regarding the enforceability of your Buckshee lease or if you would like to convert your Buckshee lease into an enforceable lease.

    New Underinsured Motorist Protection (UMP) options are now available from ICBC. Learn why you should take advantage of this new option for UMP.

    Extension Underinsured Motorist Protection

    Getting into a collision is stressful enough. Finding out the other driver doesn’t have enough coverage is even worse. When it comes to auto insurance, it’s a good idea to look out for yourself and your family, rather than rely on other drivers to have enough coverage. A serious crash could leave you with medical costs, and substantial loss of income, for the rest of your life. Extension Underinsured Motorist Protection (UMP) increases the protection provided under your Basic Autoplan, if the other driver doesn’t have enough insurance.

    Top up your Basic Autoplan with Four Coverage Options

    With Extension UMP, you can now get a total UMP limit of up to $2 million, $3 million, $4 million or $5 million (includes $1 million Basic UMP). You can also change, add or cancel your coverage at any time.

    How does Extension Underinsured Motorist Protection help you?

    If you’re in a crash where the driver at fault doesn’t have enough insurance, your total UMP limit will cover things like medical costs, rehabilitation and lost wages for:

    • you and all members of your household in the vehicle with Extension UMP coverage*
    • you and all members of your household who are injured as pedestrians or cyclists, or in a vehicle other than your own.

    Get coverage for each Vehicle in your Household

    *For complete protection, each vehicle in your household must have Extension UMP added to the vehicle coverage so that you and your loved ones will be covered in all the vehicle(s) that you own.

    Note: Underinsured Motorist Protection coverage doesn’t apply to crashes in provinces or states where the law doesn’t allow you to sue and recover damages for injury or death caused by a vehicle crash.

    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.

    The breakdown of a relationship inevitably triggers a number of issues, both personal and financial, that may require immediate and careful management. A common way forward is for the parties to negotiate and sign a Separation Agreement. A Separation Agreement is simply a written contract that intends to settle all issues between spouses when a relationship ends. What terms spouses include in their Separation Agreement is really only limited by their imagination so long as what is being sought and agreed to is reasonable. Nevertheless a well-drafted Separation Agreement ought to comprehensively address the following matters:

    Division of Property and Debt

    As a rule, the law presumes that each spouse is entitled to keep what they brought into the relationship and will share in all property acquired (or, share in the increased value of property) during the time the parties are together. Spouses are generally free to negotiate and divide the property in whatever manner they see fit so long as it is reasonably fair. Consideration ought to be given to how the spouses will manage family assets, debts and liabilities, including banking and investment accounts, division of pensions and employment benefits, and, if applicable, a spouse’s business interests.

    Spousal Support

    Spousal support is the payment of money by one spouse to the other to cover reasonable daily living expenses. It is intended to help a spouse maintain an approximate standard of living he or she may have previously enjoyed, or to compensate a spouse for financial decisions and sacrifices made during the relationship. Spousal support is not a right and determining entitlement to support is dependent upon a number of factors including the length of the marriage, income disparity and other socio-economic factors. Spouses may agree to a lump sum or monthly installments that may or may not accord with the Spousal Support Advisory Guidelines. A Separation Agreement may also permit the right of termination by the payor if a receiving spouse enters a new long-term relationship with another person.


    When children are involved there are two fundamental issues to consider: firstly, the payment of child support, and secondly, how the parties will continue to raise their children after separation.

    (a) Child Support

    Child support is a monthly sum paid to a parent who normally has the child for the greater amount of time. Child support is a right of the child (it does not belong to the receiving parent) and is designed to help cover the child’s daily living expenses. Every parent is obligated to financially support their children. This is generally a fixed amount under the Federal Child Support Guidelines, which sets out the amount each parent is required to pay based on their income and number of children.

    (b) Parenting Time, Parental Responsibilities and Guardianship

    An agreement will also need to set out in some manner how the parties will continue to care for the children post separation, often in the form of a parenting schedule. Other important considerations may include where the children will be schooled and what extracurricular activities they will participate in. The legal status of the couple will also have implications, as married parties may deal with children under the federal Divorce Act, which uses terms like custody and access to describe parenting arrangements, or the Family Law Act which refers to parenting time, parental responsibilities and contact for those individuals who are guardians.

    Depending on the spouses’ civility towards one another and their ability to work together, an agreement may need to be remarkably detailed, or it may be intentionally drafted in broad terms to allow greater flexibility as children mature or the circumstances of the spouses change. It is ultimately up to the parties to negotiate and craft terms that best fit their situation.

    A good Separation Agreement may also impose other obligations including:

    • Each party will agree to maintain a life insurance policy naming the other parent as sole beneficiary of the policy in trust for the children.
    • The parties will periodically exchange and review full financial information and that material changes in one spouse’s financial circumstance may trigger a review and recalculation of spousal and child support.
    • Any undisclosed assets owned by one spouse at the time of signing the Separation Agreement will be deemed to be equally owned by the other, or the receiving spouse is entitled to payment of one half of that asset’s value.

    A properly executed Separation Agreement that is filed in court in British Columbia will be treated as if it were an Order of the Court. The obvious benefit to filing a Separation Agreement in court is that it allows either party to enforce it rights under that agreement against the other if it becomes necessary to do so.

    Getting Independent Legal Advice

    This is a critical aspect for the following reasons:

    1. To ensure that the language of the agreement achieves what the parties intended for it to do;
    2. A full explanation of how the agreement may impact your rights and obligations not simply today but for the future;
    3. It can prevent parties from later claiming that they did not understand the contents or the terms of the agreement.

    A unique quality of Separation Agreements, unlike many commercial contracts, is that if a court deems a term to be unenforceable, the offending term may simply be struck and the remainder of the agreement will continue to bind the spouses. The policy for this is simple. A Separation Agreement is designed to ensure that spouses can freely negotiate a final and legally binding commitment to settle their affairs. The courts are alive to this and will go to great lengths to uphold the party’s original bargain. For these reasons, obtaining independent legal advice before signing is vital as the vast majority Separation Agreements are designed to be permanent and remain in force until one or both of the spouses die.

    The reality is that a Separation Agreement is one of the most cost-effective and superior ways of settling family disputes. A properly executed Separation Agreement is an indispensable tool that can mitigate the risk of future litigation while at the same time, managing the party’s present affairs as each spouse transitions into the next phase of their lives.

    Rule 25-2 of the Supreme Court Civil Rules requires Notice to be sent to beneficiaries, next of kin, and sometimes others, “at least 21 days” before the Executor files the Probate application materials with the Court.

    Section 121 of the Wills Estates and Succession Act, requires that Notice, in accordance with Rule 25-2, be mailed or delivered to each person, who to the best of the applicant’s knowledge is either a beneficiary of the Estate under the Will, and entitled to inherit on an intestacy, or partial intestacy (meaning when the deceased passed away without a Will).

    The rationale for this Rule is to give interested parties a reasonable period to respond before a Probate Application is processed.

    Thus if you are considering disinheriting a spouse or a child, keep in mind that they will still be entitled to Notice that Probate of your Estate is being applied for and will be entitled to receive a copy of your Will. This is important information for people who are trying to plan around and estranged child who they do not wish to provide for.

    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!

    A recent case out of Ontario illustrates that not all refusals to pay an employee’s compensation amount to a constructive dismissal, even if the amount owing is over $300,000. As previously discussed here, unilaterally altering fundamental terms of an employment contract may constitute a constructive dismissal. In these situations, the employee, upon resignation, is entitled to treat the employer’s action as a repudiation of the employment contract and sue for damages in lieu of reasonable notice.

    When does a Constructive Dismissal Arise?

    The Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, recently stated that a constructive dismissal can arise in two ways:

    • by a single unilateral act that breaches an essential term of the contract of employment (such as a reduction in wages or benefits, demotion or change in work location); or
    • by a series of acts by the employer that, taken together, show the employer no longer intends to be bound by the employment contract (such as where an employer condones an intolerable working environment or engages in a pattern of bullying and harassment).

    In order for a single unilateral act to amount to a constructive dismissal, the employer’s conduct must be found to constitute a breach of the employment contract and substantially alter an essential term of the contract. While minor alterations may give rise to damages, the changes must be fundamental in order for the employee to legitimately treat the contract as at an end. The question is whether, given the totality of the circumstances, a reasonable person in the employee’s situation would have concluded that the employer’s conduct evinced an intention to no longer be bound by the employment contract.

    Why did a $330k breach of contract not amount to a constructive dismissal?

    In Chapman v. GPM Investment Management, 2017 ONCA 227, the employee was entitled to a bonus payment of 10% of the employer’s pre-tax profit. After a few years of employment, the employer advised the employee that it was excluding profits arising from a particular transaction from his bonus payment calculation. The employer believed it had the right to exclude the profits from the bonus calculation pursuant to wording of the bonus clause in the employment contract. The exclusion of profits reduced the employee’s bonus entitlement by $329,687. The employee resigned and sued his employer, taking the position that the reduction in his bonus calculation constituted a constructive dismissal.

    The Ontario Superior Court of Justice and Court of Appeal disagreed with the employee. Although the denial of bonus payments constituted a breach of contract, it was not a substantial breach that altered an essential term of the contract. The dispute involved a disagreement about the interpretation of the bonus scheme. Employers and employees are permitted to disagree about the terms of an employment agreement. Just because the employer’s interpretation was incorrect did not mean that the employer evinced an intention not to be bound by the employment contract. In reaching this conclusion, the courts relied heavily on the fact that the case did not involve a permanent alteration to the bonus scheme. The employee also gave evidence that, despite the non-payment, the terms of his employment had not and would not change. As such, the employee was entitled to damages for failure to pay his bonus but not damages for constructive dismissal.

    This case is an interesting one as it challenges the widely held notion that a proportionately large decrease in compensation constitutes a constructive dismissal. Reducing the employee’s bonus by $329,687 amounted to a unilateral reduction of 28% of the employee’s expected compensation – an amount beyond the threshold that many would consider amounting to constructive dismissal. What Chapman illustrates is that a breach of contract is not enough to establish repudiation. Constructive dismissal requires both a breach of contract and an assessment of whether a reasonable person would consider himself or herself to be constructively dismissed. Sometimes a breach of contract is simply a breach of contract.

    We’ve all had them at some point: those neighbour you can’t seem to get along with. You’ve tried speaking with them reasonably and they ignore you or things escalate. You try taking formal steps and they ignore you or things escalate.

    In the case of The Owners, Strata Plan NW 1245 v Linden, 2017 BCSC 852 (CanLII), for years, the respondents’ conduct had been the source of excessive noise and abusive conduct complaints to the Strata. The Strata attempted to rectify the behaviour with the recourse available to it without success and they resulted in the Strata turning to the Court for assistance.

    The Strata sought and was granted orders aimed at curbing the respondents’ conduct including enjoining the respondents from: communicating with members of the Strata or persons complaining about the conduct; uttering abusive, obscene or threatening comments to Strata members; vandalizing common property; slamming or pounding doors; allowing their dog to bark excessively; yelling or screaming; or disturbing others during certain hours. Judgment was also ordered for some $3,400 in fees levied by the Strata to that point.

    Notwithstanding, the evidence before the Court was that the respondents continued to bully and harass others, made derogatory and vulgar remarks about others, continually disturbed others; hurled sexual comments at others and assaulted some other residents.

    S. 173 of the Strata Property Act empowers the Court with the specific authority to order a strata property owner or tenant to comply with the Act, strata bylaws or strata rules, to order an owner or tenant to stop contravening the Act, bylaws or rules and to make any further orders it considers necessary to give effect to these other orders.

    Further to s. 173 and the powers inherent to the Court, the Court found that the respondents were in contempt of the previous order of the Court and that no measure remained other than eviction that would suffice to protect the interest of the other residents. The Court ordered that within 7 days, the respondents had to list their property for sale and, within 30 days, they had to vacate the property. The orders were backed by the Court ordering the respondents to be arrested if they further breached any orders of the Court.

    Presently, it appears that the respondents did not appeal the order of the Court, but have disputed attempts to have special costs ordered by the Court assessed.

    While an extreme and rare outcome, The Owners, Strata Plan NW 1245 v Linden demonstrates that the Court is willing to grant severe orders against strata owners/tenants who deliberately contravene strata bylaws and unreasonably disturb their neighbours’ rights to quiet enjoyment. The case also highlights how strong documentary evidence of disturbing conduct and establishing a history of having issued warnings and fees in respect of such conduct may ground requests for injunctive relief from the Court.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a strata property dispute or being unreasonably disturbed by your neighbours, he’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.

    R. v. Antic, 2017 SCC 27, changed the landscape of judicial interim release in Canada. With Antic, the Supreme Court of Canada reestablished the presumption of innocence and the necessity for reasonable bail based on individual circumstances.

    Bail hearings are an expedited process in our country and our highest Court confirmed the two rights of an accused at the pre-trial stage: the right not to be denied bail without just cause and the right to a reasonable bail. The reasonableness relates to the quantum and terms of restrictions of a bail order.

    Antic provided new directives to bail courts. The Court made it clear that unconditional release is the default position and imposed a ladder principle which places a burden on the Crown to show why restrictive forms of release should be imposed. The presumption is release on an undertaking with no conditions at the earliest reasonable opportunity. The new directive provided by the Court strengthens the rights of the accused and places a higher burden on the Crown.

    For a link to the full decision, see: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16649/index.do

    It is most likely common knowledge that, for quite some time, the housing market in the lower mainland has been a highly competitive environment with seemingly outrageous and rapid increases in property values. These market trends were front and centre in the recent decision of Zhang v. Tsai, 2017 BCSC 583 (CanLII).

    While purchasers flipping real properties in a hot market for a quick dollar is hardly unique, Zhang v. Tsai featured a contract for purchase and sale being flipped twice for a substantial profit without the purchaser realizing value on those assignments.

    In May, 2015, Mr. Tsai listed his property for sale and, on that same day, negotiated and entered into a contract of purchase and sale to sell his West Vancouver home for $5.1 million to Mr. Li. Completion was to occur on October 30, 2015.

    Mr. Li realized he would be unable to sell his home and, eventually, was able to assign the purchase contract to a numbered company for $5.7 million in July, 2015. Mr. Tsai received no value for this assignment.

    The numbered company negotiated with Mr. Tsai to obtain an extension of the closing date to November, 2015 and paid Mr. Tsai $5,000 for the extension. The numbered company gave evidence and the Court agreed that Mr. Tsai understood the purpose of the $5,000, although Mr. Tsai denied understanding the reason he received the $5,000.

    In August, 2015, the purchase contract was assigned for a second time from the numbered company to Mr. Zhang for $6.3 million. Again, Mr. Tsai received no value for this assignment.

    In September, 2015, Mr. Tsai went to his lawyer where he says he first learned of the assignments and decided not to complete as a result. He commenced litigation against his realtor in October, 2015 alleging that his realtor misled him about the value of his property.

    Mr. Tsai refused to complete the sale of his property to Mr. Zhang in November, 2015 and Mr. Zhang sued to force Mr. Tsai to complete the contract to sell the property. Mr. Zhang’s defence, although not clearly stated, essentially was that if he successfully sued his realtor, the contract of purchase and sale would be found to be invalid.

    The Court recited the requirements of s. 36(1) of the Law and Equity Act that an assignment expressly made in writing and otherwise valid transfers legal rights to the assignee. The Court also noted that assignment had to occur prior to closing (which it did).

    The Court found that Mr. Tsai had received notice of the two assignments in writing at least once prior to closing and possibly on multiple occasions. The Court also found that the assignments were absolute, in writing and signed by the assignor. In the result, the Court found that the assignments were valid.

    Having found the assignments valid, the Court was left to determine if it would order specific performance (force the contract to be completed) or would award damages in place of performance. The Court went through the law about whether to award specific performance or damages -in particular, Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2014 BCCA 388 (CanLII) – and concluded that the subject property was subjectively unique enough to Mr. Zhang that he was entitled to the remedy of specific performance. It was significant to the Court that otherwise assessing damages would be complex.

    The Court did not find that the innocent, third-party assignee who paid value for the purchase contract, Mr. Zhang, could be faulted to any claim that might exist by Mr. Tsai against his realtor.

    Zhang v. Tsai is notable in that it is an example of some of the issues that can occur in particularly active real estate markets. In particular, it is illustrative of how vendors may get seller’s remorse between entering a contract and closing when they see their property continue to increase in value without their having any opportunity to realize on that increase.

    There are ways to construct a contract to make adjustments to the purchase price at the time of closing to reflect market trends (although this would almost always require the additional expense of a valuation at closing).

    Additionally, between the time issues arose in Zhang v. Tsai and the time the case was determined, s. 8.2 of the Real Estate Services Regulation came into force. S. 8.2 essentially provides that, unless instructed otherwise, realtors are required to put into all contracts of purchase and sale that the contract cannot be assigned without written consent of the vendor and that the vendor will be entitled to any profit resulting from an assignment of a contract and, if the contract does not contain such clauses, that the realtor must specifically inform the vendor of the consequences of not including such clauses. To be clear, such clauses are not mandatory and can be altered or removed by the vendor prior to listing or by agreement of parties to a contract, but s. 8.2 at least ensures that all vendors will have at least have been informed of their rights and obligations concerning assignments.

    Vendors and purchasers are well-advised to understand their rights and obligations under a contract of purchase and sale, especially in an active real estate market where there can be temptation to consider assignment of a contract. Timely legal advice can save both vendor and purchaser time and money down the road.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about any real property disputes, he’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.

    According to the U.S. Treasury Department a record number of U.S. citizens, 5,411 to be exact, renounced their U.S. citizenship in 2016. In contrast, in 2007 there were only 470 renunciations of U.S. citizenship. While there are many reasons for renouncing U.S. citizenship it appears that the implementation of the Foreign Account Tax Compliance Act (FATCA) may be behind the increase in renunciations.

    According to the Internal Revenue Service the FATCA requires “that foreign financial Institutions and certain other non-financial foreign entities report on the foreign assets held by their U.S. account holders or be subject to withholding on withholdable payments.” Thus, as a result of this legislation, U.S. citizens living and working abroad can no longer ignore the fact that they are required to file tax and information returns annually in the U.S. even if they have no U.S. income.

    However, the decision as to whether or not one should renounce their U.S. citizenship cannot be made lightly. Indeed, a former U.S. citizen can be barred from entering the country under the U.S. Immigration Act if it is determined that they renounced their U.S. citizenship to avoid paying U.S. taxes.

    In the event that one does decide to renounce their U.S. citizenship that person must (1) renounce their U.S. citizenship in the presence of a diplomatic or consular officer; (2) do so outside the United States; and (3) do so using the exact form prescribed by the Secretary of State.

    In order to make an informed choice one should speak with a U.S. immigration lawyer before deciding to relinquish or renounce their U.S. citizenship.

    The Alberta government recently introduced a bill to modernize Alberta’s workplace laws entitled the Fair Family-Friendly Workplaces Act. Provincial labour relations and employment standards in Alberta are governed by the Alberta Labour Code and Employment Standards Code, respectively. Although there have been amendments over the years, the Alberta Labour Code and Employment Standards Code have not been significantly updated in almost 30 years.

    A major focus of the bill is the creation and expansion of unpaid leaves of absence from work. For parents, the bill would align Alberta with federal standards by extending maternity leave by one week to 16 weeks and parental leave from 37 weeks to 52 weeks. Compassionate care leave would be extended from eight weeks to 27 weeks. The bill also seeks to create the following new unpaid leaves:

    • Long-term Illness and Injury Leave (16 weeks);
    • Personal and Family Responsibility Leave (five days);
    • Bereavement Leave (three days);
    • Domestic Violence Leave (10 days);
    • Citizenship Ceremony Leave (half-day);
    • Critical Illness of a Child Leave (36 weeks); and
    • Death or Disappearance of a Child (52 weeks when a child disappeared as a result of a crime, or up to 104 weeks when a child died as a result of a crime).

    Although employees may already enjoy job protection guarantees through the Alberta Human Rights Act for the matters covered by the new leaves, the bill purports to clarify that the above leaves are the mandatory minimum standard applicable to provincial workplaces.

    Additional key features of the bill includes reducing the eligibility period for all job-protected leaves from one year to 90 days; requiring overtime hours to be banked at 1.5 times an employee’s wage rate instead of straight time; introducing stronger enforcement and administrative penalties for contraventions of the Employment Standards Code; increasing the minimum age to work to 13; clarifying what deductions can be made from an employee’s wages; and requiring a minimum of a 30-minute break for every 5 hours of consecutive employment.

    For unionized workplaces, the major proposed amendments include re-introducing a card check provision in the certification process and introducing first contract arbitration when a newly certified workplace is unable to reach agreement on a first collective agreement.

    With respect to card-checks, certification in Alberta (like British Columbia) is currently a two-step process: (1) employees who would make up the proposed bargaining unit sign cards indicating their support of certification; and (2) if the union can show the Alberta Labour Relations Board that 40% of the proposed bargaining unit have signed cards, a secret ballot vote is conducted approximately 10 days later. Under a card-check system, if a union can show a clear majority of employees have signed cards in support of the union, the Labour Relations Board dispenses with the need for a secret ballot vote and certifies the union. The debate between a card check system and secret ballot vote is political as card check systems generally lead to an increase in successful certification drives.

    Another large (but likely underreported) amendment is the shift of the onus of proof in unfair labour practices complaints (i.e., complaints involving discipline, dismissal or other alleged intimidation of an employee for supporting a union). The bill proposes that the employer would be required to prove the action it took does not constitute an unfair labour practice, rather than requiring the employee to try to prove that it does. This proposed revision accords with the law in British Columbia and would make it more difficult for employers to fight allegations of inappropriate conduct during the certification process.

    The 252 page bill passed first reading in the Legislative Assembly of Alberta on May 24, 2017. Although it is not yet law and subject to debate in the legislative assembly, it is likely that the bill will ultimately pass given the majority status of the provincial government in Alberta.

    The provincial government recently amended the Occupational Health and Safety Regulation (“OSHR”) to ban the practice of requiring employees to wear high heels in the workplace. The amendment to section 8.22 of the OHSR followed increasing public pressure to curb the ostensibly discriminatory and unsafe practice.

    Interestingly, although the Government’s press release specifically references eliminating mandatory high heel dress codes in the workplace, the effect of the amended regulation may be that high heels are eliminated in some workplaces generally. In other words, employees may be prevented from wearing high heels even if doing so is their own choice.

    Under the Workers’ Compensation Act (“WCA”), employers have a general duty to ensure the health and safety of its employees. The OSHR, which falls under the authority of the WCA, stipulates safety standards to help prevent workplace accidents and injuries. Section 8.22 of the OSHR does not expressly prohibit high heels in the workplace; rather, it states that an employer must not require workers to wear footwear that may prevent them from safely performing their work. Determining what constitutes appropriate footwear includes consideration of factors such as slipping, tripping, uneven terrain, abrasion, ankle protection and foot support and potential for musculoskeletal injury.

    Based on these considerations and an employer’s general duty to ensure the health and safety of its employees, employees are prevented from wearing high heels (regardless of a dress code) if doing so endangers their health or safety.

    WorkSafeBC recently issued a policy guideline that appears to confirm a general prohibition against high heels in the workplace for certain industries. It states that walking in high heels (typically greater than 1.5 inches) has been shown to significantly reduce ankle movement and balance control, and increase musculoskeletal injury. While section 8.22 is “not intended to interfere with a worker’s choice of footwear where there are no hazards of foot or ankle injury or potential for musculoskeletal injury”, the guideline specifically singles out the hospitality industry as being not appropriate for the use of high heels. The guideline states as follows:

    OHS Guideline G8.22 Footwear explains that the risk assessment employers must make to determine what constitutes appropriate footwear is based on the work assigned to each worker and on the work procedures and arrangements that exist in the workplace at any given time. The risk assessment should also consider the workplace floor and stair surfaces and whether there may be liquids or items on them that could be slip and trip hazards.

    As an example, hospitality workers (e.g., servers, hosts, bus-people, and bartenders in bars, clubs, restaurants, or other hospitality venues) walk on different surfaces, including slippery surfaces and stairs, often while carrying food and drinks. With consideration to the factors referred to in section 8.22(2)(a), (b), (c), (e), and (f), high heels would not be appropriate footwear. A dress code requiring hospitality workers to wear high heels while serving, bussing, or hosting would violate section 8.22(2.1).

    Based on the wording of the OSHR and the above policy guideline, it appears employers have a positive obligation to prevent certain workers from wearing high heels in the workplace. This issue has not been adjudicated given the infancy of the amended regulation; however, we expect this to be a hotly contested issue for employers and employees alike.

    The Civil Resolution Tribunal (the “CRT”) is Canada’s first online tribunal. Presently the CRT has authority to hear disputes about strata property issues and is set at the time of the writing of this article, to shortly begin hearing small claims disputes.

    From the outset, the creation of the CRT caused some concern among lawyers and other stakeholders as s. 20 of the Civil Resolution Tribunal Act (the “Act”) provides that parties are generally to represent themselves. In other words, they generally are unable to have a lawyer represent them.

    A further concern raised in respect of the CRT was how the courts would treat appeals from decisions of the CRT. Under s. 56.5 of the Act, appeals of final decisions in a property dispute are for questions of law and are made to the Supreme Court. Further, an appeal may be made only if all parties consent or leave is granted by the Court.

    The Owners, Strata Plan BCS 1721 v Watson, 2017 BCSC 763 (CanLII) is purportedly the first appeal from the CRT made further to s. 56.5 of the Act.

    The facts of the case, succinctly, were that:

    • Mr. Watson rented a unit in a strata;
    • Mr. Watson’s roommate moved out and a new one moved in;
    • later Mr. Watson’s girlfriend moved in;
    • the strata had a $100 moving charge, but no fee was levied in respect of any of the moves;
    • months later, the strata property manager disabled the key fobs for Mr. Watson’s unit in order to exact payment of moving fees the strata was then claiming; and
    • there were disputes about whether the move-in fees were proper in the circumstances or were significantly unfair within the meaning of s. 164(1) of the Strata Property Act.

    Arguments on the appeal were intended to focused on whether the CRT had properly applied the applicable legal tests in arriving at its decision. In seeking leave to appeal, the Court was called upon to consider the criteria for leave set out in s. 56.5 of the Act which are:

    1. whether an issue raised by the claim or dispute that is the subject of the appeal is of such importance that it would benefit from being resolved by the Supreme Court to establish a precedent;
    2. whether an issue raised by the claim or dispute relates to the constitution or the Human Rights Code;
    3. the importance of the issue to the parties, or to a class of persons of which one of the parties is a member; and
    4. the principle of proportionality.

    The Supreme Court observed that the CRT potentially misapplied the legal tests for objective reasonableness of the moving fee bylaw, incorrectly approached the analysis of the remedy for when strata corporations’ actions are found to be significantly unfair and errored in law in failing to address whether the tenant had standing to commence CRT proceedings.

    Ordinarily the case would not have been granted leave given the small amount of money involved; however, the Supreme Court held that leave to appeal was appropriate since it was important to establish precedent as to how the Supreme Court will craft the process of reviewing future decisions of the CRT and whether those decisions contained appealable errors of law.

    In the result, it is expected that The Owners, Strata Plan BCS 1721 v Watson may shortly give us further guidance on the law and principals applicable to the CRT and appeals therefrom.

    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about any strata or legal 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.

    On April 10th, the Canadian government provided clarity around its plans for the full legalization of marijuana, including announcing that new laws will be in force by July 1, 2018. While much remains unknown concerning the structure of the legislation and the interplay between the federal legislation and the provincial laws that are sure to follow (the federal government will be responsible for licensing and regulating producers, while the provincial governments will deal with setting prices and determining how marijuana is sold), this is certainly a step forward for marijuana proponents.

    Selling Weed to the Public

    Given recent valuations seen by companies in the medical marijuana space, many private companies are now looking to access the public markets to raise the funds necessary to execute on their business plans. The manner in which such companies access the public markets will differ based on a variety of factors, including where they are in the Health Canada licensing process. Companies that have obtained their license to cultivate (“LPs”) have the most flexibility while companies that are still in one of the six stages of Health Canada’s licensing process (“Non-LPs”) have fewer options.

    Obtaining a listing on the TSX Venture Exchange (the “TSXV”) is the natural choice for most LPs, with a view to ultimately getting upgraded to the Toronto Stock Exchange. However, given the TSXV’s current policy not to list companies that do not have a license to cultivate from Health Canada, many Non-LPs will seek an alternative listing on the Canadian Stock Exchange (the “CSE”). The CSE will generally list Non-LPs provided they otherwise meet the CSE’s listing requirements.

    Many companies seeking a public listing on a Canadian stock exchange will find that it is more efficient for them to acquire (usually by way of reverse take-over by way of an amalgamation or plan of arrangement) control of an existing public company rather than doing a traditional initial public offering. For LPs, there should be no shortage of TSXV-listed companies willing to transact with them, particularly if one looks at Capital Pool Companies (a “CPC”), which could offer a cleaner alternative for LPs. The situation is a bit more problematic for Non-LPs, in that it is currently challenging to find a CSE-listed shell company. A creative approach that I have used to address this problem is to have the company transact with a TSXV-listed shell company (note that this shell company cannot be a CPC) and concurrently with the closing of the transaction delist from the TSXV and list on the CSE.

    If you are interested in learning more about taking your company public, 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.

    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.
    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.

    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.”


    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.

    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 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.

    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 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.


    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

    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.

    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.

    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.


    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”.


    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