Author Archive

Whether a Strata Can or Cannot Recover Legal Fees in Enforcement Efforts

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When a strata issues fines or fees against owners, it often seeks legal assistance in doing so. A recent decision reviews when a strata is or is not entitled to recover part or all of those legal fees.

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Only BC Courts Can Adjudicate on Real Property in BC

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There is frequent need for parties who obtain judgments in jurisdictions outside of BC to come to BC seeking to enforce their judgments against assets of judgment creditors held in BC.

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Contract Law Largely Explored in One Case

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Often times parties to a contract have a less than clear understanding of many of the principles of contractual law.

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Keeping Construction Costs Under Control: Costs-Plus vs. Guaranteed Maximum Price

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One of the most frequent types of construction disputes centers on what is owed vs. what is charged for work.

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Inform your Insurer of Material Changes in Risk or You Could Lose Coverage

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On January 21, 2014, Mr. and Ms. Schellenberg suffered losses when a building on their property was damaged by a fire.

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Failing to Commit a Contract of Purchase of Sale for Real Property to Writing: A Potential Incurable Mistake

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As was discussed in my previous article, Property, Parties, Price – How Far the Court Will Go to Insert the 3 P’s of Real Estate into a Contract, it is critical that parties to a contract of purchase and sale for real property take the time to properly document the terms of their contract.

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Construction Estimates and Failure to Agree on Contract Pricing

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As the court observed in its recent decision, All Out Contracting Ltd. v Gourlay, 2020 BCSC 481 (CanLII) (“All Out”), construction work begins before the owner(s) and contractor properly define their contractual relationship, if they ever do so

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Negligent Construction – Who to Sue and What to Sue For

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One of the challenges in negligent construction disputes is that plaintiffs often start litigation only knowing something is wrong that needs to be fixed.

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COVID-19, Builders Liens and Limitation Periods

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Categories: Blog, Construction, Litigation
As many people may be aware, on March 26, 2020 the government of BC suspended limitation periods as a result of the COVID-19 pandemic.

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Pre-Judgment Garnishment: A Powerful but Exacting Tool

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Pre-judgment garnishment is a powerful remedy that allows a creditor to secure their claims by garnishing funds owed to a debtor and holding them in court pending a further order or agreement of the parties.

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Can a Home Inspector Limit Their Liability?

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When would-be homeowners obtain home inspections, they place a great deal of reliance on the inspection report they receive.

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COVID-19 Issues: Frustration, Subject-To Clauses and Contracts of Purchase and Sale

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COVID-19 has resulted in a number of issues which put the performance of purchase contracts for real property at risk.

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Defamation, the Protection of Public Participation Act and Strategic Lawsuits Against Public Participation

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On March 25, 2019, the Protection of Public Participation Act was assented to bringing into force legislation aimed at combating strategy lawsuits against public participation.

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Alternative Sources of Recovery on Denied Insurance Claims: When Insurance Brokerages Might be Liable

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When a party is denied on a claim by an insurer, a careful analysis of whether the denial is properly made is important.

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Real Estate Purchases: When the Deposit Becomes Non-Refundable

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Subject to clauses, waiver or satisfaction of subject to clauses, deposits and when deposits become non-refundable are issues in contracts of purchase and sale that often become the subject of litigation.

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Substantial Damages Awarded for Defamatory Social Media Posts

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I’ve previously written on defamation within the context of social media and airing grievances about services on social media, and the recent decision of Rook v. Halcrow continues to underscore that social media posts are public domain.

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When A Debtor Puts Assets Out of Reach: Use of Fraudulent Conveyance Proceedings to Recover Debts

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Getting a judgment isn’t the only challenging aspect of a legal dispute; collecting on a judgment can present a whole new set of challenges.

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Pre-Judgment Garnishment: Full and Frank Disclosure is Required

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The recent case of Opus Consulting Group Ltd. v Ardenton Capital Corporation focused on the level of disclosure required to support and sustain a pre-judgment garnishment order.

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Construction Disputes: A Contractor’s Right to be Paid vs. Owner’s Claims for Defective Work

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It is one of the most common scenarios in construction litigation: work has completed, the contractor has rendered its final bill and an owner refuses to pay on the basis that there were delays or that there are defects or deficiencies.

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Voting 2019!

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Categories: Firm News
The time to vote in the federal election is upon us. As I do for every election, I encourage everyone to exercise their democratic rights, get involved however you want and, most importantly, vote!

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Discharging a Builders’ Lien on Posting of Security: What is Sufficient Proof?

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In my previous article, Discharging a Builders’ Lien on Posting of Security: How Much is Enough?, I discussed the two pronged approach by the courts when considering what is sufficient security to be posted in order for a party to be able to discharge a builders’ lien.

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Commercial Tenancies: Removing an Overholding Tenant

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The rights and remedies that attach to commercial tenancies are generally prescribed by the lease agreement giving rise to the tenancy.

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Insurance Law: Material Non-Disclosure Results in No Coverage

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It is not an usual story: an insurance applicant does not make full and frank disclosure in their insurance application.

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Insurance Deductibles: Without Proper Notice, They Aren’t Payable

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It is no secret that insurers are motivated to find ways to deny part or all of a claim.

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Pre-incorporated Companies and Privity of Contract

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Privty of contract is the notion that only parties to a contract may receive the benefits of or may be called upon to perform the obligations of a contract.

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Co-Ownership of Real Property: Sort It Out or Risk Having It Sold

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There are innumerable reasons that parties may find themselves co-owning real property with friends, family or business partners and just as many reasons why that co-ownership relationship may turn sour.

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Extras, Delays and Completion Dates in Construction Disputes

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In even the most well-thought out construction contracts, there is almost always the need for parties to deviate in some way from the timelines and scope of work.

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Assignment of a Contract of Purchase and Sale: Get it in Writing

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While a contract can be formed by any combination of communications and oral and verbal agreements, it remains the most prudent course of action to reduce a contract to writing to avoid any ambiguities about what has or has not been agreed to.

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Breach of Contract and Repudiation: Affirm or Accept the Repudiation, Not Both

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One of the more difficult issues in contractual disputes is sorting out what rights and obligations continue to exist when a party to a contract breaches the terms of the contract.

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Central Okanagan Economic Development Commissions’ Latest Snapshot

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Categories: Blog
The Central Okanagan Economic Development Commission (COEDC) has released its 2018 fourth quarter economic indicators report.

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Discharging a Builders’ Lien on Posting of Security: How Much is Enough?

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When a builders’ lien is filed, it can cause all manner of disruptions to financial, contractual and business relations

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Builders Liens: The Consequences of Less than Strict Compliance

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In my previous article, Builders Liens: Strict Compliance or Lose Your Lien, I explored how a family company lost its lien rights by making the mistake of pursuing its lien in the name of its principal rather than the company.

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Meeting of the Minds – When A Contract Is Or Is Not Formed

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In a number of previous articles, I have explored some of the difficulties encountered where parties fail to properly set out the contractual terms that dictate the rights and responsibilities between them.

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Property, Parties, Price – How Far the Court Will Go to Insert the 3 P’s of Real Estate into a Contract

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The Statute of Frauds and Canadian jurisprudence require that for any contract of real property to be enforceable, it must contain an agreement with respect to three essential elements knowns as the 3 P’s: parties, property and price.

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Promissory Notes and Settlement Agreements – Commit Agreements to Writing

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Often times parties will turn to friends, family, acquaintances or business relations to seek funds to borrow rather than a bank or other lending institution.

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The Importance of Spelling Out What Is or Isn’t in a Contract

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One of the most frequent mistakes people make in entering contracts is in making incorrect assumptions about what is or is not included in a contract.

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Enforcing a Settlement Agreement: Naming the Right Parties

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As discussed in a previous article, settlement agreements are effectively contracts which can be enforced through legal action and replace whatever legal, contractual or equitable rights were involved in the fight that preceded settlement.

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Contractual Terms by Convention: When Parties Fail to Explicitly Set Contractual Terms

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One of the frequent issues encountered in contractual litigation is parties failing to negotiate and set to writing the contractual obligations that exist between them.

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Contracts of Purchase and Sale: Removing Subjects

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Most people familiar with the purchase and sale of real property are familiar with subject to clauses, the full legal significance of such clauses can be a source of confusion.

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Proprietary Estoppel, Land Use and Oppression

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The recent case of Dalpadado v North Bend Land Society.

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What One Has Earned – Courts Impose Compensation Where Parties Fail to Solidify a Contract

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Often times, parties will get to the edge of entering into contractual relations, but miss the steps required to form a contractual agreement.

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Public Bidding, Exclusion Clauses and Public Policy Concerns: Contracting Out of Liability for a Flawed Bidding Process

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As discussed in my previous article, Invitations to Tender: Why it is Important Both Bidders and Solicitors to Follow Proper Process, the solicitation of bids for public projects must follow a fair and transparent process.

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Plastic Bag Bans

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In recent years, several communities all over the world have sought to means by which to reduce the accumulation of plastic in our natural environment.

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Fiduciary Duties to a Corporation: Will the Court Extend the Duty to Third Parties?

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A fiduciary relationship is a relationship in which one party places distinct trust, confidence and dependence on another.

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Children and the Standard of Care: Can you Sue Children for Negligence?

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While the law often concerns itself with compensating children who are injured as a result of negligence, it sometimes also has to grapple with whether a child can be held responsible for the injuries or loss suffered by others.

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When a Child is Hurt at School: Is it Just an Accident or is Someone Liable?

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For better or for worse, injuries are a part of childhood and the process by which children learn to explore the world around them.

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Invitations to Tender: Why it is Important Both Bidders and Solicitors to Follow Proper Process

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Government and non-government actors that solicit bids for contractors for management or construction projects must follow a fair and transparent process for doing so.

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When a Party Breaches a Settlement Agreement: Being Made Whole

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Settlement agreements that conclude litigation are often reached once the parties have gotten to a point of a loss of faith in one another or a complete breakdown in whatever relationship they may have enjoyed pre-litigation.

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The Risks of Complaining on Social Media: When Airing Grievances Attracts Damages

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The intersection of defamation and social media remains a minefield and social media users are well-advised to treat social media posts no differently from any other form of publication.

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When Liability Waivers Are Upheld

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In the recent decision of Alton v Lower Mainland Motocross Club, the court ultimately determined to uphold a liability waiver and the decision reiterates the law applying to liability waivers.

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Liability Waivers: If in Doubt, Get a New One

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Categories: Blog, Litigation
Liability waivers are a must for any company inviting members of the public to engage in a risky activity.

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Contracts of Purchase and Sale, Frustration, Relief from Forfeiture and the Foreign Buyer Tax

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Categories: Blog, Litigation
On July 25, 2016 the Property Transfer Tax Act introduced a 15% tax on foreign entities or taxable trustees in addition to ordinary property transfer tax.

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Time is of the Essence: When Late is No Better Than Never

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Contracts for the purchase and sale of real property and many other commercial contracts contain a clause that says in respect of certain or all contractual obligations that “time is of the essence.”

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Piercing the Corporate Veil in Construction: When Work is So Bad it Amounts to Fraud

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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.

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Posting Security to Discharge a Builders Lien

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A builders lien can be an effective, powerful and inexpensive tool for helping unpaid contractors, subcontractors, suppliers receive payment for their materials and services.

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Prosecute or Get off the Pot: Dismissing for Want of Prosecution

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Categories: Blog, Litigation
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.

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Negligent Construction and Winnipeg Condo

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As I’ve previously written, the “Winnipeg Condo” decision is an authority by which a party may seek to recover against negligent builders and contractors.

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Limitation Periods and Emails: Can an Email Signature Extend a Limitation Period?

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Categories: Blog, Litigation
One of the first tasks in any potential litigation matter is to identify the applicable limitation period.

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When Breaches of the Strata Property Act Result in a Forced Sale

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We’ve all had them at some point: those neighbour you can’t seem to get along with.

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Buying and Selling Property in a Hot Market: Flipping a Contract of Purchase and Sale

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It is most likely common knowledge that, for quite some time, the housing market in the lower mainland has been a highly competitive environment.

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First Appeal from the Civil Resolution Tribunal

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Categories: Blog, Litigation
The Civil Resolution Tribunal is Canada's first online tribunal.

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If You’re Going to Build, Do it Right: Subsequent Owners’ Right to Sue a Builder and/or Former Owners

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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.

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Real Property, Legal Title, Equitable Title and the Torrens System: Presumptions as to Ownership

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Real property ownership in British Columbia is governed by a modified Torrens system for title registration.

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Builders Liens: Strict Compliance or Lose Your Lien

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Categories: Blog, Litigation
While not guaranteeing the settlement of disputes, the Builders Lien Act provides a powerful tool for contractors, subcontractors, workers and suppliers.

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New Monetary Limit in Small Claims and the Enhanced Role of the Civil Resolution Tribunal

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Categories: Blog, Litigation
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.

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Overplaying Your Hand: Risking Special Costs

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Categories: Blog, Litigation
When commencing a claim or a counterclaim, there is a temptation to throw every allegation at the wall just to see what sticks.

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The Follies of Forum Shopping

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Categories: Blog, Litigation
In previous articles, I discussed the interactions between attornment, 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.

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Contractual Interest vs. the Interest Act

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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.

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Choice of Law: When your Actions Revoke your Choice

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Categories: Blog, Litigation
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. […]

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Here, There or Anywhere: Where to Sue and be Sued

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Categories: Blog, Litigation
In many potential litigation matters, a preliminary issue is the place in which the litigation is to proceed.

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Property Disclosure Statements: Buyer Beware (Still)

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In virtually all standard contracts of purchase and sale, the parties agree that the vendor will provide a property disclosure statement (“PDS”) and that the representations made in the PDS will survive the completion of the contract.

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Dealing with Land? Write it Down

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In British Columbia s. 59 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (the “Act”) essentially requires that contracts dealing with

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Losing Your Right to Recover: The Risks of Firing a Contractor for Deficient Work

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

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

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Categories: Blog, Litigation, Technology
It likely comes as no news to most readers reading that social media is simultaneously a minefield or a gold mine for any litigation matter.

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When Municipal Building Inspections are not Enough

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Too often, people mistakenly assume that because the home or renovations are done in accordance with architectural plans and within the requirements of the applicable municipality or district, that the home or renovations are sound.

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YouTube, Trademarks, Copyrights and the Potential Fall of Fine Brothers Entertainment

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If you are entwined in the world of new media or have just found yourself on YouTube or social networks lately, you may have noticed a number of sarcastic comments or videos.

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Self-Represented Litigants, Arbitration and Natural Justice

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Categories: Blog, Litigation
For years, Courts in BC have observed a general trend towards an increasing number of self-represented litigants coming to Court.

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Should I Settle Or Not? Formal Offers To Settle

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Categories: Blog, Litigation
Some of the most common questions asked by my clients are whether they should engage in settlement discussions with opposing parties and whether a settlement offer made to them is reasonable to accept.

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Prejudgment Garnishing Orders: Getting it Right

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Categories: Blog, Litigation
If someone owes you money and you become involved in a legal dispute in BC, it is possible to seek a prejudgment garnishing order by the authority of the Court Order Enforcement Act for debts owed to you.

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Equal Marriage in the United States

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Categories: Blog, Family Law
In what will undoubtedly be viewed as a landmark decision, on June 26, 2015 the Supreme Court of the United States effectively ruled in Obergefell v. Hodges that same-sex marriage is legal throughout the US.

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Be Careful of Predatory Financial Advice

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Categories: Blog, Business Law
Most financial advisors provide exactly the kind of service you would expect: they provide you options for investing your money and inform you of the risks and rewards involved with choosing an investment vehicle or personal financial restructuring.

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When Business Relationships Change, Temptations and Tensions Rise

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Small corporations, where two or three family members and/or friends incorporate a company and go into business together, are the bread and butter of our community’s vibrant and diverse business community.

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Cyclists: Enjoy the Ride in Safety

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During the summertime, there’s almost no better way to enjoy the sunshine than a ride on your bicycle. Whether you are training for a GranFondo or Iron Man event or simply enjoying a casual ride on the weekend, cycling is a great way to enjoy the summer and a fantastic alternative to driving. A recent […]

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Why Paying for Timely Legal Advice Saves you Money in the Long Run

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Categories: Blog, Business Law, Litigation
There is an old saying that an ounce of prevention is worth a pound of cure. This is almost never truer than when it comes to getting timely and competent legal advice. Very often people find themselves seeking the assistance of a litigator because at the beginning of a transaction or when a person became […]

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Patent vs. Latent Defects and Caveat Emptor

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The local housing market appears to be on the rise. While this is a good sign of our recovering economy, it is also an appropriate time for purchasers to remind themselves of some of the risks and their legal rights when purchasing a home. The maxim, “buyer beware” (or caveat emptor), applies to purchasing a […]

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Idle-O

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This post discusses the hundreds, if not thousands, of land contracts in British Columbia that may be negatively affected by section 73 of the Land Title Act, R.S.B.C. 1996, c. 250 and the line of legal authorities stemming from International Paper Industries Ltd. v. Top Line Industries Inc., 1996 CanLII 3340 (BC CA) ("Top Line").

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