Barely a day goes by where we don’t hear about how artificial intelligence can help us manage our lives.  There is no doubt that the powerful AI technologies being introduced can also change the landscape for legal services.  AI services are being developed that can draft and review commercial contracts, assist with employment contracts and more.

While the technology is impressive, there are limits to its use, and complete a reliance on technology is not a prudent substitute for the human touch to manage the nuances of professional legal services.

In New York, the limits to AI as a tool for legal research were recently laid bare.

In the United States District Court, Southern District of New York, a lawyer from the firm Levidow, Levidow & Oberman brought a claim against an airline seeking damages for a client who was injured as a passenger on Avianca Airlines.   Faced with an application to dismiss the claim by the airline, the plaintiff’s lawyer provided the Court with a legal brief that contained multiple court cases that supported the plaintiff’s position that the action should not be dismissed.

Upon reviewing the plaintiff’s brief, the defendant realized that the cases in the brief either didn’t exist, or didn’t state the law in the way the plaintiff indicated.

This was brought to the attention of Judge P. Kevin Castel, who ordered on April 11, 2023 that the Plaintiff provide copies of the cases that were at issue.

When the plaintiff’s lawyer complied with the order and provided the cases to the Court, upon review, Judge Castel came to the conclusion that the “submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations.”  The judge demanded that this conduct be justified by the lawyer.

It turns out the lawyer had consulted with the AI service Chat GPT to assist with his legal research.  The lawyer indicated that the legal cases and the opinions that were previously presented to the Court “were provided by Chat GPT which also provided its legal source and assured the reliability of its content.”  When the lawyer asked the AI service if the cases were real, the service replied that the cases were in fact real and could be located on multiple legal research databases.

It turns out that the AI service had made up all of the research and the cases that were described in the brief.  While it seems the lawyer did not intend to mislead the court, the reliance on the research provided by Chat GPT has taken the focus away from the merits of the case and instead now is focusing on the conduct of the plaintiff’s lawyers.

Proper legal research is imperative when it comes to advancing a client’s claim.  While AI has shown that it can be helpful for some tasks, it is incredibly risky to rely upon these services without the skills and knowledge required to review the information for accuracy.

If you require a legal opinion for any legal matter, please do not hesitate to contact us.   We have access to a wide variety of technologies that make our research efficient while also possessing the skills to ensure that the legal opinions we provide are trustworthy.

If you would like to review the court materials in the Mata v. Avianca, Inc. matter, they can be found here:

https://www.courtlistener.com/docket/63107798/mata-v-avianca-inc/

When a loved one passes away, do you know if they had a Will? And second, do you know where to find a copy of it ? Many people – even those close to us – can be very private about their finances and personal matters. Estate Planning is indeed very personal, and often, loved ones will not communicate with those closest to them details about the location or contents of their Wills. Some people keep their original Wills at home, in a safety deposit box, or (most commonly and highly recommended) at the office of the lawyer who drafted their Will. Those are all good places to check.

To find the location of a Will, you can conduct a search the Wills Registry with Vital Statistics. We file Wills Notices. registering the location of the Will for every single Will we draft. If a Notice of the location of the Will has been filed with the Wills Registry, the search Certificate from the Registry will show the location of the original Will (for example “Pushor Mitchell LLP Wills Vault located at …. for safekeeping”.) However, while filing a Wills Notice is highly recommended, it is optional, so it’s possible the Will-maker didn’t file a Notice, or they may have later moved the will or revoked it. So, while the Wills Registry search may not always turn up the location of the Will you’re looking for, it is certainly a good place to start.

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 Wills and Estates at Pushor Mitchell LLP in Kelowna.

Background

As of October 1, 2020, private companies in British Columbia have been required to comply with disclosure requirements regarding their company’s beneficial ownership and control with the purpose of increasing corporate transparency to end hidden ownership. Companies are required to prepare and maintain a private company transparency register (“Transparency Register”) that includes information about individuals with significant control of the company or its shares, either directly or indirectly (a “Significant Individual”). Generally, the Transparency Register includes a Significant Individual’s full legal name, citizenship, last known address, and date of birth. This information has been accessible only to directors and certain government agencies pursuant to the Business Corporations Act (the “BCA”).[1] For more information regarding the current requirements under the BCA, please see our earlier legal alerts: Update – New Disclosure Requirements for all British Columbia Companies and New Disclosure Requirements for all British Columbia Companies.

Changes to the BCA

Emulating the federal government’s recent initiative towards furthering transparency through a public beneficial ownership registry,[2] the provincial government of British Columbia enacted the Business Corporations Amendment Act (the “BCAA”) on May 11, 2023. The BCAA modifies the existing Transparency Register’s requirements, introduces a publicly searchable registry (the “Registrar’s Transparency Register”) and strengthens the BCA’s enforcement mechanisms.

Changes to the existing Transparency Register’s requirements

The BCAA adds required information and actions respecting the Transparency Registers of private companies. The Transparency Register’s use and disclosure remains restricted.

Additional information required from Significant Individuals includes:

1. their social insurance number;
2. their individual tax number, if any; and
3. where applicable, a statement setting out that they are incapable of managing their own affairs.

Changes to the Transparency Register filing requirements include:

1. a shorter timeframe to update information in the Transparency Register, from 30 days to 15 days, where the company becomes aware of any new or different information regarding its Transparency Register; and
2. requiring private companies to file certain information included on their Transparency Register with the registrar (this information is for the Registrar’s Transparency Register) both annually AND at other times. Other times include:
   • within six months of the company being incorporated under the BCA; and
   • within 15 days after the company becomes aware that any information is new or different from its Transparency Register.

The new Registrar’s Transparency Register

The new Registrar’s Transparency Register will contain the following publicly accessible information about Significant Individuals:

1. their full name;
2. year of birth;
3. whether or not the individual is a Canadian citizen or permanent resident of Canada; and
4. for residents that are not permanent residents, their citizenship.

However, the use and disclosure of information obtained from a Registrar’s Transparency Register is restricted to protect Significant Individuals. These protections include the prohibition of using information for the purposes of:

1. soliciting persons by telephone, mail, or by other means;
2. to harass persons; or
3. for any other prescribed purposes.

Publicly accessible information will be omitted or obscured where the Significant Individual is under 19 years of age, or where they are deemed incapable of managing their own affairs. Further, Significant Individuals may apply to the registrar to omit or obscure publicly accessible information where they believe that this information would threaten either their own or a member of their household’s safety or health.

Strengthening enforcement mechanisms

Failing to comply with the corporate transparency rules set out in the BCA is already an offence. However, the BCAA introduces appointed enforcement officers who may demand, access and inspect Transparency Registers to determine their compliance under the BCA. These officers are permitted to impose administrative penalties of up to $25,000 on a Significant Individual and $50,000 on a company or entity, payable or disputable within 30 days of notice of the penalty. A limitation period is also added that restricts legal proceedings for offences respecting the Transparency Register under the BCA to 6 years, while other offences are permitted within 3 years after the commission of an offence.

Conclusion

While the BCAA received Royal Assent on May 11, 2023, the provisions as of the date of this publication have not yet been brought into force by regulation. The requirement for private companies to maintain Transparency Registers has been in effect since October 1, 2020, and with the recent enactment of the BCAA, the provincial government is on track to establish a searchable public registry by 2025.

Paul Tonita is a partner at Pushor Mitchell. His Commercial Law experience includes assisting clients, whether they are just getting involved with their first business, or they have established operations that require more sophisticated advice. These discussions often revolve around the various business structures, how to structure a corporation and get it off the ground. Paul has a great deal of experience in assisting clients with the transactional aspects of buying and selling businesses. He also works closely with commercial lenders as they help business owners get established or continue to grow. His clients often come to him to draft and advise on contracts and provide them with general advice.

Marina Nichols is a summer student at Pushor Mitchell and is completing law school at Thompson Rivers University. Marina completed her undergraduate degree in Management at the University of British Columbia Okanagan.

[1] See BCA.

[2] See Bill C-42 and Increasing Transparency Requirements for Federal Companies: Bill C-42’s Proposed Amendments.

Pushor Mitchell partner Keith Inman is pleased to announce that he has been appointed to the board of directors of VR Resources Ltd.

VR Resources is an established junior exploration company focused on unique greenfield opportunities in critical metals, copper and gold in the western United States and Canada. VR Resources’ shares are publicly traded on the TSX Venture Exchange under the symbol VRR, with secondary listings in Frankfurt (5VR) and in the United States on the OTCQB (VRRCF).

If you have a corporation governed by the Canada Business Corporations Act (the “CBCA”), there are proposed increased transparency requirements that you should be aware of.

Since June 2019, the CBCA has required corporations to keep a register of individuals with significant control (an “ISC Register”).[1] Individuals with significant control include anyone who, either by themselves or in combination with another individual:

1. owns, controls, or directs a significant number of shares
2. has significant influence over the corporation without owning any shares; or
3. has any combination of any of these factors.

The purpose of the ISC Register was to provide transparency with respect to who owns and controls Canadian businesses, and to assist law enforcement agencies in exposing fraudulent activities such as money laundering.

On March 22, 2023, Bill C-42, An Act to amend the Canada Business Corporations Act and to make consequential and related amendments to other Acts (“Bill C-42”), was introduced in Parliament, proposing amendments to the CBCA that, if implemented, will further increase the transparency requirements for federal corporations.[2]

Proposed Amendments to the CBCA

If enacted, Bill C-42 will make certain information contained in the ISC Register available to the public. In particular, the proposed amendments include:

• expanding the list of required information that a federal corporation must collect for each ISC Register, including the name, birthday, address, and citizenship of each individual;
• making certain information about individuals with significant control available to the public, including their name, address, and share ownership;
• requiring corporations to submit information to be included on an ISC Register at least annually, and whenever a change in control occurs; and
• increasing and broadening the consequences of non-compliance.

Conclusion

Bill C-42 received its first reading on March 22, 2023, and its second reading is in progress. If implemented, the proposed changes will expand the disclosure requirements for corporations under the CBCA considerably and make certain information available to the public.

If you have questions about the current requirements for federal companies or these proposed amendments, please contact Rebecca Dickson at dickson@pushormitchell.com or by phone at 250-869-1194.

Rebecca Dickson is an associate lawyer at Pushor Mitchell practicing primarily in the areas of business and securities law. Rebecca has experience advising both provincial and federally incorporated companies with respect to corporate compliance, purchases and sales of business and other corporate/commercial matters.

Marina Nichols is a summer student at Pushor Mitchell and is completing law school at Thompson Rivers University. Marina completed her undergraduate degree in Management at the University of British Columbia Okanagan.

[1] See: https://ised-isde.canada.ca/site/corporations-canada/en/individuals-significant-control;

[2] See: https://www.parl.ca/legisinfo/en/bill/44-1/c-42;

The Federal Government’s new Underused Housing Tax (the “UHT”) came into effect on January 01, 2022 and, as a result, owners of vacant properties anywhere in Canada may be liable for the new tax. Whether subject to this new tax or not, all affected owners must file their 2022 UHT tax returns (Form UHT-2900) by April 30, 2023, including each joint owner of a single property.

The UHT applies to individuals, corporations, partnerships, and trusts, and failing to file a UHT return on time may result in significant penalties.  Potential penalties range from a minimum of $5,000 per filing for individuals and a $10,000 minimum penalty per filing for corporations, partnerships, and trusts.[1]

However, notwithstanding that the prescribed deadline is April 30 of the following calendar year, on March 27, 2023, the CRA announced that, due to the unique challenges for affected owners in the first year of UHT administration, the Minister of National Revenue will waive interest and penalty fees relating to any UHT returns and remittance that are filed and paid by October 31, 2023. This waiver will only apply to UHT returns for the 2022 calendar year.

How Much is the UHT:

The UHT is calculated as a one percent annual tax on the value of the underused residential real estate.

Properties Affected by the UHT:

Under the Underused Housing Tax Act (the “Act”), residential property includes any property situated in Canada that is:

• a detached house or similar building containing no more than three dwelling units and the adjacent land that is necessary to use and enjoy the residence (including cabins, cottages, and chalets); or
• a semi-detached house, row house units, residential condominium units and other similar premises that are intended to be a separate parcel, intended to be owned or other division of real property (this includes coach houses or laneway houses).[2]

Dwelling units are defined as any “residential unit that contains private kitchen facilities, a private bath and a private living area.”

Who is Affected by the UHT:

The Act classifies residential property owners into two categories, excluded owners and affected owners. Excluded owners of residential properties in Canada have no obligations or liabilities for the UHT. Any residential property owner who falls outside the umbrella of excluded ownership is an affected owner and must file a UHT return, even if they claim an exemption (see discussed below).

 Owners

A residential property owner is the person named as an owner on the title registered with the land registry in a given province (the Land Titles Office in BC). The definition of owner also includes a person who:

• is a life tenant of a residential property;
• is a holder of a lifelong lease in respect of a residential property; or
• has a long-term lease (at least 20 years) or has continuous possession of the land where the residential property is situated.

Excluded Owners

An excluded owner of residential property is an owner who, on December 31 of the calendar year, is:

• an individual who is a Canadian citizen or permanent resident;
• a Canadian publicly traded corporation;
• an owner of residential property acting as a trustee of certain widely held trusts;[3]
• a registered charity;
• a cooperative housing corporation; and
• certain public institutions and government bodies.[4]

Affected Owners

Outside of those defined categories, all other owners are classified as affected owners, are subject to the UHT, and are required to file a return for every calendar year. As a result, all owners of residential property who are not in the class of excluded owners listed above must file a UHT return for each residential property they own.

Consequently, all non-Canadian residents, non-permanent residents, private corporations, partners in a partnership, trusts and trustees, that legally own residential property in Canada are classified as affected owners and must file UHT returns and remit any UHT owing to the CRA before the prescribed deadline.

Qualifying Exemptions:

For those who qualify as affected owners, the Act provides several exemptions from UHT liability. However, to claim an exemption, affected owners must file a UHT return on time. Subsections 6(7)-(9) of the Act list the following exemptions to the UHT:

Exemptions based on the type of owner:

No UHT is payable where the owner falls into one of the following categories:

• Specified Canadian corporations – If the residential property is owned by a corporation with less than 10 per cent foreign ownership;
• Partner of specified Canadian partnership – If all members of the partnership are either excluded owners or specified Canadian corporations;
• Trustee of a specified Canadian Trust – The property was owned by a trustee of a trust where all the beneficiaries with an interest in the property were either excluded owners or specified Canadian Corporations;
• Where the owner dies – If the owner dies in a calendar year, no UHT is payable for that or the following calendar year. If the deceased was a joint owner of the property and owned a 25 per cent interest or more, the surviving joint owners will also be exempt from the UHT for the same period.

Exemptions based on the occupant:

Primary Place of Residence (Individuals Only)

No UHT is payable where the residential property is the principal residence of the owner, their spouse or their common-law partner. Additionally, if the owner’s child, spouse or common-law partner occupies the property while studying at an authorized college or university, the affected owner will be exempt.[5]

Qualifying Occupancy Period

An affected owner of a residential property will not be subject to the UHT where the property has been occupied for at least 180 days in the calendar year (made up of periods of one month or more) and is occupied by one of the following persons:

• a person unrelated to the owner subject to a tenancy agreement;
• a person related to the owner who is paying fair rent to occupy the property;
• the owner’s spouse, common-law partner, parent, or child who is a Canadian citizen or permanent resident; or,
• the owner’s non-resident spouse or common-law partner who is in Canada under a valid work permit.[6]

Exemptions based on the availability of the property:

No UHT is payable if the residential property is:

• not suitable for use as a residence year-round;
• is seasonally inaccessible because public access is not maintained throughout the year;
• is uninhabited for at least 60 days out of the calendar year due to a disaster or other circumstances outside of the owner (this exemption can only be claimed for one calendar year per disaster or hazardous condition); or
• is uninhabitable for at least 120 consecutive days in a calendar year due to renovations (this exemption can only be claimed once every 10 years).

Additionally, UHT will not apply to residential properties where construction of the residence is substantially completed (90 per cent or more) after March of the calendar year and offered for sale to the public or is not substantially completed before April of the calendar year.

Exemptions based on location:

Affected owners can claim an exemption on properties located in “prescribed areas” or what the Government of Canada’s website describes as “vacation properties.” In addition to being located in a prescribed area, the owner or their spouse or common-law partner must reside at the property for at least 28 days in the calendar year.

The Canada Revenue Agency has released a property designation tool to assist owners in determining whether their residential properties are located within a prescribed area.

Important Filing Considerations

It is worth reiterating that all affected owners must file an annual UHT return even if they qualify for an exemption. The penalties for non-compliance are severe, and a failure to file by the April 30 deadline can result in an owner being required to pay increased penalties. Beyond the minimum $5,000 non-compliance penalty for individuals and $10,000 penalty for owners that are not individuals, additional penalties and interest will apply to outstanding taxes not paid by April 30 following each reporting year. While affected owners will have until October 31, 2023 to file and pay UHT for the 2022 calendar year, beginning in 2024, the deadline for the UHT will return to April 30.

For more information, please contact Shaun Campbell at scampbell@pushormitchell.com or Kyle Ramsey at ramsey@pushormitchell.com.

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.

[1] Underused Housing Tax Act, s. 47, https://canlii.ca/t/bgh0

[2] Underused Housing Tax Act, s. 2, https://canlii.ca/t/bgh0

[3] These include mutual fund trusts, REITs, and SIFT trusts.

[4] Including municipalities, hospital authorities, public colleges and universities, and Indigenous governing bodies.

[5] Underused Housing Tax Act, s. 8, https://canlii.ca/t/bgh0

[6] Underused Housing Tax Act, s. 6(1) & (9), https://canlii.ca/t/bgh0

According to recent news reports Hyundai Canada has recently plead guilty to 6 recall-related criminal charges. In their announcement, Transport Canada confirmed that Hyundai Canada entered guilty pleas to 6 different criminal charges for violating the Motor Vehicle Safety Act.

According to Transport Canada, Hyundai Canada failed to send out recall notices for six different defects within the requisite 60 days of having identified said defects.

On their website Hyundai Canada confirms that they have “recalled more than 110,000 vehicles to address a manufacturing issue that could lead to engine failure and in certain circumstances an engine fire.”[1] Further, Hyundai Canada notes that “while the majority of incidents among affected vehicles are limited to engine knocking, there have been instances of stalling, meaning the engine may stop running while the vehicle is being driven.”[2]

It is obvious that if a vehicle’s engine fails while it is being driven it could likely lead to an accident. However, one might question whether one could recover for their injuries from such an accident given that British Columbia now has a no-fault injury regime for injuries arising out of motor vehicle use or operation. Indeed, would an individual injured by a product failure like one described by Hyundai Canada have recourse in the courts in British Columbia?

Fortunately, the answer is likely yes, given the no-fault legislation carved out an exception for claims that arise due to product liability. If you or someone you know is injured by a faulty engine or any other product please contact us to discuss whether or not you may have a claim.

[1] See: Hyundai Engine Recall Information | Hyundai Canada (hyundaiengineinfo.ca)

[2] Ibid

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.

Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip or from a hike in the mountains. How can we deal with their assets? Or take care of their bills while they are missing? What if they return home? In the rare and devastating case that they don’t return home, when can we deem that they are deceased and start to deal with their Estate?

This is a complicated issue. It is often difficult to gain a sense of closure when a loved one passes away, let alone if their body is never found. If there is “sufficient evidence” that a person is dead, you can try to apply to the Court for a Presumption of Death Order. What is “Sufficient evidence”? In general terms, it is evidence that is looked at in its totality regarding the circumstances relating to the disappearance of the missing person.

Strong evidence can include a number of items.  It could be affidavit evidence from the police and other sources, in terms of searches undertaken over a period of time for the missing person, phone records and/or banking records showing no activity for months on the accounts.

In the case that there is insufficient evidence that someone is deceased, but they have been missing for a certain period of time without contact with relatives or others they typically communicate with, the Court may appoint the Public Guardian and Trustee, or another suitable person on application to the Court, as custodian of the missing person’s property.

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 incapacity planning/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.

Amendments to the Regulations are being made to increase availability to Non-Canadians and businesses wishing to enter into Canada’s housing market. The amendments will increase and expand the current exemptions by allowing Non-Canadians to purchase residential property in certain circumstances.

Clarification on the Act

The latest updates:

In order for the federal government to implement certain prohibitions, The Prohibition on the Purchase of Residential Property by Non-Canadians Act, S.C. 2022, c. 10, s. 235 (the “Act”) was passed and came into effect on January 1, 2023, and the Act will continue to be in effect for 2 years. While many details still require clarifications, subsequent Regulations to the Act (the “Regulations”) have been released and assist in clarifying a few points.

On March 27, 2023, the Honourable Ahmed Hussen, Minister of Housing and Diversity and Inclusion, released amendments to the Prohibition on Purchase of Residential Property by Non-Canadian’s Act accompanying Regulations.

The Regulations were created to state specific exemptions, definitions, and clarifications necessary to implement the new prohibition.

These exemptions to the Regulations have been made, effective March 27, 2023.

1. Can work permit holders purchase a home to live in while working in Canada?

Yes. This amendment allows individuals holding a work permit or those who are authorized to work in Canada under the Immigration and Refugee Protection Regulations to purchase residential property so long as:

i. work permit holders have 183 days or more of validity remaining on their permit or work authorization at the time of the purchase; and

ii. they have not purchased more than one residential property.

2. Can Non-Canadians purchase vacant lands?

Section 3(2) of the regulations, which prohibited the purchase of vacant land zoned for residential and mixed use, has now been repealed allowing non-Canadians to purchase these vacant lands zoned for residential and mixed use and use them for any purpose including residential development.

3. Can Non-Canadians purchase residential property for development?

An added exception allows for Non-Canadians to now purchase residential property for the purpose of development. These amendments also widen the exception currently applicable to publicly traded corporations under the Prohibition on Purchase of Residential Property by Non-Canadian’s Act, to publicly traded entities formed under the laws of Canada or provinces controlled by a non-Canadian.

4. Is the foreign control threshold the same?

The previous control threshold of 3% for privately held corporations or entities formed under the laws of Canada or provinces with control by a Non-Canadian has now increased to 10%.

Further Discussion: An Updated Version of Our Firm’s Article on the Prohibition Is Reproduced Below, Containing Revised Terms To Reflect the Changes Noted Above

In order for the federal government to implement certain prohibitions, The Prohibition on the Purchase of Residential Property by Non-Canadians Act, S.C. 2022, c. 10, s. 235 (the “Act”) was passed and came into effect on January 1, 2023, and the Act will continue to be in effect for 2 years. While many details still require clarifications, Regulations to the Act (the “Regulations”) have been released and assists in clarifying a few points.

What does the Prohibition Apply to?

By compiling the definitions in the Act and the Regulations, it is clear the prohibition applies only to “residential property”.

Residential property under the combined definitions of the Act and Regulations includes:

1. detached housing with three or fewer dwelling units;
2. a part of a building that is a semi-detached house, rowhouse unit, residential condominium, or other similar premises that is intended to be owned separate from any other unit in the building; and
3. other properties as determined by regulation.

The Act is targeting “non-Canadians”, although this is not a clearly defined term in the Act, the clarification of this has been addressed in the Regulations. Certain exemptions to this have been made already, and others seem likely to arise as time passes and reveals additional complexities of defining this term in an increasingly mobile global population.

A “non-Canadian” is defined as:

An individual who is:

• not a Canadian citizen;
• is not registered as an “Indian” under the Indian Act, RSC 1985, c I-5; or
• is not a permanent resident.

A company who is:

• not incorporated in Canada;
• wherein more than 10% of the equity or voting rights are held by a person who is non-Canadian; or
• wherein control in fact of the corporation, whether direct or indirect, is by a person who is non-Canadian.

There is room to expand this definition in future regulations.

What is a “Purchase”?

Although phrased in terms of a purchase, the Regulations define a purchase as “the acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property.”

Therefore, not only is it not limited to registered interests and filed transfers, but also includes the execution of contracts. The definition consequently states that the act of solely entering into a contract is an offense, as it creates a legal and equitable interest or right. This requires us to focus on the concept of acquisition of a legal or equitable interest, not on the completion of the usual formalities of transferring property at the Land Title Office.

However, a purchase does not include:

1. the acquisition by an individual of an interest or a real right resulting from death, divorce, separation or a gift;
2. the rental of a dwelling unit to a tenant for the purpose of its occupation by the tenant;
3. the transfer under the terms of a trust that was created prior to the coming into force of the Act;
4. the transfer resulting from the exercise of a security interest or secured right by a secured creditor; or
5. acquisition by a Non-Canadian of residential property for the purposes of development.

Note: the prohibition is not applicable to those liabilities assumed prior to January 1, 2023.

What exceptions have been created?

The non-Canadian prohibition will not apply to:

(a) a temporary resident* within the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 who satisfies prescribed conditions;

*  if the temporary resident is a student at a designated learning institution, the temporary resident must satisfy one of these four conditions:

1. they filed all required income tax returns under the Income Tax Act for each of the five taxation years preceding the year in which the purchase was made,
2. they were physically present in Canada for a minimum of 244 days in each of the five calendar years preceding the year in which the purchase was made,
3. the purchase price of the residential property does not exceed $500,000.00, and
4. they have not purchased more than one residential property.

OR

*  if the temporary resident is authorized to work (with or without a permit) under the Immigration and Refugee Protection Regulations;

1. have 183 days or more of validity remaining on their work permit or work authorization on the date of purchase; and
2. they have not purchased more than one residential property.

(b) a refugee under the Immigration and Refugee Protection Act,  2001, c. 27;

(c) a joint purchase with a spouse who is:

1. a Canadian citizen,
2. a person registered as an “Indian” under the Indian Act, RSC 1985, c I-5, or
3. permanent resident or refugee under the Immigration and Refugee Protection Act, S.C. 2001, c. 27;

(d) a person of a prescribed class of persons*.

* Prescribed Classes of Persons include:

1. foreign nationals who hold a passport that contains a valid diplomatic, consular, official or special representative acceptance issued by the Chief of Protocol for the Department of Foreign Affairs, Trade and Development;
2. foreign nationals, with valid temporary resident status, whose temporary resident visa was issued, or temporary resident status was granted, following an exemption provided under section 25.2 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, if the Minister is of the opinion that the exemption was justified based on public policy considerations to provide safe haven to those fleeing conflict; and
3. persons that have made a claim for refugee protection in accordance with subsection 99(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, if that claim has been found eligible and referred to the Refugee Protection Division under subsection 100(1) of that Act.

Further exemption available where the application of the prohibition is incompatible with the rights recognized and affirmed by section 35 of the Constitution Act, 1982 (Rights of Aboriginal Peoples of Canada).

What are the Enforcement and Remedial Provisions?

The legislation states:

“Every non-Canadian that contravenes the prohibition and every person or entity that counsels, induces, aids or abets or attempts to counsel, induce, aid or abet a non-Canadian to purchase, directly or indirectly, any residential property knowing that the non-Canadian is prohibited under this Act from purchasing the residential property is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.”

The language used in the offence provisions shows this to be an offence which requires the aiding party intend to help the non-Canadian purchaser contravene the prohibition. Based on this language it does not appear to be an offence to unwittingly provide information to a non-Canadian who later uses that information to contravene the prohibition. However, it will be difficult in practice to prove what was known to the parties, and what the intent of the information-provider was at the time of speaking with the non-Canadian.

The offence provisions also ensure the use of a corporation (or other entity) does not shield the aiding party from liability. Directors, officers, senior officials, and others are all considered party to and liable for the offence under a broad range of circumstances. Specifically, if an entity commits an offence, then “any of the following persons that directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and liable for the offence whether or not the corporation or entity has been prosecuted or convicted:

1. an officer, director or agent or mandatary of the corporation or entity;
2. a senior official of the corporation or entity;
3. any individual authorized to exercise managerial or supervisory functions on behalf of the corporation or entity.

Following conviction of the offence noted above, the superior court of the province in which the property is located (e.g. the British Columbia Supreme Court), is able to, upon application by the Minister, order the residential property be sold under any terms that the court considers appropriate in the following circumstances:

1. the non-Canadian is the owner of the residential property at the time the order is made;
2. notice has been given to every person who may be entitled to receive proceeds from the sale; and
3. the superior court of the province is satisfied that the impact of the order would not be disproportionate to the nature and gravity of the contravention, the circumstances surrounding the commission of the contravention, and the resulting conviction.

When an order for sale is made, it must include specific provisions, including:

1. the payment of the costs of the sale, including the costs incurred by the Minister in bringing the application for the order and any unpaid fines by the non-Canadian under the Act;
2. the payment of those, other than the non-Canadian, who are entitled to receive the proceeds of the sale in amounts and according to priorities that the superior court may determine;
3. the repayment of the non-Canadian of an amount that is not greater than the purchase price they paid for the residential property; and
4. the payment of any amount to the Receiver General for Canada.

Note that the validity of the sale of the property to the non-Canadian is not impacted by the legislation; therefore, the original seller of the residential property is not involved in the enforcement process.

Effective April 3, 2023, the Canadian Securities Exchange (the “CSE”) has adopted significant amendments (the “Amendments”) to its policies.  While the scope and breadth of the Amendments is comprehensive and include extensive revisions to many of the policies, for the purposes of this Legal Alert we will focus our review on Policy 2 – Qualification for Listing, Policy 4 – Corporate Governance and Miscellaneous Provisions and Policy 6 – Distributions.

CSE Policy 2 – Qualifications for Listing 

Policy 2 outlines requirements that issuers must meet in order to list on the CSE. The amendments expand the scope of the existing CSE Policy 2 and introduce several new listing requirements.

Eligibility Review

Following the Amendments, the CSE has introduced an “eligibility review” for all applicants applying to list on the CSE immediately before or concurrently with filing a prospectus. The eligibility review process starts with the applicant submitting a “document with sufficient detail to determine that the eligibility requirements have been met”. With respect to the documents that must be filed with the application, the CSE notes that a draft prospectus will be sufficient as long as it provides all required information and that natural resource issuers must provide the relevant technical report. The CSE will then conduct a review and will provide confirmation of eligibility or conditions the applicant must meet before listing.

“NV Issuers”

Policy 2 introduces a new category of listing for senior issuers, which the CSE coins “NV Issuers” (Non-Venture Issuers) and provides specific listing criteria which NV Issuers must meet. In addition to meeting the CSE’s basic listing qualifications, NV Issuers must meet one of four elevated listing standards. Each of the four standards sets minimum thresholds with respect to Equity, Net Income, Market Value, or Assets and Revenue.

Interestingly, the definition of “venture issuer” under applicable securities laws means any reporting issuer not listed on the Toronto Stock Exchange, NEO, or a U.S. marketplace such as NASDAQ or NYSE, among other certain categories.  NV Issuers listing on the CSE would continue to be considered “venture issuers” under securities laws; however, pursuant to CSE policies they will be subject to certain additional requirements which mirror some of the statutory requirements for non-venture issuers. This includes the obligation to post an Annual Information Form and abridged filing deadlines for annual and interim financial statements.

Special Purpose Acquisition Corporations (“SPAC”)

CSE Policy 2 introduces SPAC listing requirements, which are similar to the requirements of other Canadian stock exchanges. SPACs may submit a listing application (the “SPAC Listing Application”) to demonstrate that they meet the CSE’s SPAC listing requirements. The CSE SPAC listing requirements include, but are not limited to:

• a minimum IPO raise of $30,000,000 through the sale of shares or units;
• at least 1,000,000 freely tradable securities are held by public holders;
• the aggregate market value of the securities held by public holders is $30,000,000; and
• a minimum IPO price of $2 per share.

Policy 4 – Corporate Governance and Miscellaneous Provisions

As a result of the Amendments, the scope of CSE Policy 4 has been expanded to require that a CSE-listed issuer (a “Listed Issuer”) obtain securityholder approval for certain transactions.

Sale of Securities

For Listed Issuers, securityholder approval is required if the issuance of securities in an offering (i) is greater than 50% of the outstanding securities, and a new control person is created, or (ii) if the issuance is greater than 100% of the securities outstanding. Securityholders must also approve security issuances where the issuance price is lower than the current market price, less the Maximum Permitted Discount.  Additionally, if the Listed Issuer or the CSE determines that the issuance will materially affect the control of the Listed Issuer, securityholder approval for the issuance will be required.

CSE Policy 4 requires securityholders of NV Issuers to approve proposed security offerings if the number of securities issuable in the offering is more than 25% of its currently outstanding securities. NV Issuers must also obtain securityholder approval if the securities issuable to a related person, combined with those issued to the related person in the last 12 months in private placements or acquisitions, is more than 10% of the issuer’s outstanding securities.

Notwithstanding the foregoing, securityholder approval may not be required if a Listed Issuer is in serious financial difficulty, has reached an agreement to complete the offering, and there is no related person participating in the offering. In addition, to rely on the exemption from the securityholder approval requirement, the Listed Issuer’s independently comprised audit committee or the majority of its independent directors must determine that the offering is in the Listed Issuer’s best interests, is reasonable, and it is not feasible to obtain securityholder approval or complete a rights offering to existing securityholders on the same terms. Listed Issuers relying on this exemption must issue a news release stating that it will not hold a securityholder vote and must explain its qualification for the exemption five (5) days in advance of the offering.

Acquisitions and Dispositions

Similar to the requirements for financings, securityholders of Listed Issuers must approve acquisitions if (i) the number of securities to be issued is greater than 50% of outstanding securities, and a new control person is created, (ii) if the total number of securities to be issued is more than 100% of the Listed Issuer’s outstanding securities, or (iii) it would, as determined by the Listed Issuer or the CSE, materially affect control of the Listed Issuer. Pursuant to the Amendments, securityholders must also approve of a disposition of all or substantially all of the assets, business, or undertaking of a Listed Issuer.

Further, securityholders of NV Issuers must approve acquisitions if related persons hold an interest of 10% or greater in the target assets and the total number of issuable securities is more than 5% of the NV Issuer’s outstanding securities. Securityholders of NV Issuers, other than investment funds, must also approve acquisitions if the total number of securities to be issued is greater than 25% of the NV Issuer’s outstanding securities.

Other Transactions Requiring Securityholder Approval

The Amendments to CSE Policy 4 also now require that both NV Issuers and Listed Issuers obtain securityholder approval for certain other items including:

• the adoption or amendments to any shareholder rights plans;
• the adoption or amendments to security based compensation plans; and
• consolidations if: (a) the consolidation ratio is greater than ten (10) to one (1); or (b) when combined with any other consolidation in the previous 24 months that was not approved by shareholders, the consolidation ratio is greater than ten (10) to one (1).

Policy 6 – Distributions and Corporate Finance

The scope of CSE Policy 6 has been expanded to require advance public notice for acquisitions and private placements, as well as requiring prescribed details for price reservation submissions.

Private Placements

The Amendments now provide limited exceptions to the $0.05 minimum private placement security price requirement. A Listed Issuer may now complete a private placement at a price less than $0.05 if the proposed price is not less than the twenty (20) day volume weighted average price less the Maximum Permitted Discount, the proceeds will be used for working capital and/or bona fide debt settlement, and the following information is provided when the price reservation request is submitted:

• name and trading symbol;
• anticipated insider participation;
• confirmation that there is no undisclosed material information;
• intended use of proceeds;
• structure of the financing; and
• any other information that may be relevant.

Listed Issuers are also required to give advance five (5) day public notice of an intention to complete a private placement. The Amendments also clarify that the price protection will expire if the financing is not closed within forty-five (45) days unless securityholder or CSE approval is required or the CSE has consented to an extension.

Acquisitions

Under the Amendments, if a Listed Issuer is requesting confidential price protection with respect to an acquisition, they must provide the same information as required when submitting a price reservation request in connection with a private placement, as listed above. As with private placements, Listed Issuers are also now required to give advance five (5) day public notice of an intention to complete an acquisition. If the CSE does not object within the five (5) day window, the Listed Issuer may close the acquisition. 

Security Based Compensation Arrangements

The Amendments have introduced securityholder approval requirements, additional filings, posting and reporting requirements to bring security based compensation arrangement requirements more in line with other Canadian stock exchanges. More specifically, the Amendments to CSE Policy 6 now require that Listed Issuers obtain approval every three (3) years for “evergreen” or “rolling” plans.

Conclusion

While the Amendments have made sweeping changes to the Policies, they have also introduced additional clarity, which should prove useful to management of listed issuers.

Importantly, all issuers listed on the CSE must be compliant with the amended policies as of April 3, 2023.  If you are involved with a CSE listed company and have questions concerning the impact or interpretation of the amendments please contact Keith Inman at inman@pushormitchell.com or by phone at 250-869-1195.

On March 7, 2023, the British Columbia government introduced Bill 13, the Pay Transparency Act. The proposed legislation is intended to address the gender pay gap in the province. In 2022, Statistics Canada reported a 17 percent wage gap between women and men in British Columbia.

Pay discrimination is already prohibited in British Columbia under the Human Rights Code. However, if the proposed legislation is passed, as of November 1, 2023, all employers will be required to include wage or salary ranges on all publicly advertised jobs. Additionally, employers will not be able to ask prospective employees for pay history information or punish employees who disclose their pay to co-workers or potential job applicants.

The proposed legislation will also require employers to publicly post reports on their gender pay gap. This requirement will be introduced according to the following schedule:

• November 1, 2023: BC Public Service Agency and Crown corporations with more than 1,000 employees (ICBC, BC Hydro, WorkSafe BC, BC Housing, BC Lottery Corporation and BC Transit)
• November 1, 2024: all employers with 1,000 employees or more
• November 1, 2025: all employers with 300 employees or more
• November 1, 2026: all employers with 50 employees or more

The British Columbia government is developing regulations that will provide employers with more details about how they will be required to report on the pay gap.

When disputes arise on construction projects, a party sometimes withholds payment from another pending resolution. Construction agreements often include terms requiring payment of interest from the date payment is due. Those agreements may include high rates of interest, particularly in residential construction context. It is not unusual to see interest rates as high as 30% per annum or more.

A recent decision of British Columbia’s Court of Appeal highlights the risk in withholding disputed funds. In Highridge Homes Ltd. v. de Boer, 2023 BCCA 74 (“Highridge”), a homeowner discharged a claim of builders lien by paying money into its lawyer’s trust account. The money was deposited in 2016 and dispute went to trial in 2021. The construction agreement between the parties provided for interest to accrue on unpaid accounts at 12% per annum. At trial, the contractor was granted judgment against the homeowner.  However, the Court dismissed the contractor’s claim for interest at 12% per annum, finding that the payment to its lawyer’s trust account in 2016 was equivalent to a payment to the contractor. The contractor appealed.

The Court of Appeal reversed that finding. The Court held that payment into the lawyer’s trust account was not the same as a payment to the contractor. This was because, in part, the owner continued to claim entitlement to the funds and had not relinquished control of them. The Court also referred to earlier precedent which held that funds paid as security for a lien are not payments to contractors. As a result, the homeowner was required to pay 12% interest on the judgment for the five-year period between paying the funds into trust and judgment.

Highridge underscores that parties should carefully review their construction agreements to ensure they appreciate the implications of contractual interest provisions. Consideration should be given to whether payment is made under protest, particularly where the outcome of the dispute is uncertain and the agreement provides for a high rate of interest. This should be weighed against the party’s ability to repay disputed funds in the event of a judgment against it.

The above is intended as general information only. You should consult a lawyer if you have concerns about your construction agreement.

The British Columbia Small Business Venture Capital Act (the “SBVCA”) creates two programs designed to encourage investment in early-stage companies in emerging industries in British Columbia: the Venture Capital Corporation (“VCC”) program and the Eligible Business Corporation (“EBC”) program. These programs allow certain corporations to provide eligible investors with access to a 30 percent tax credit.

Eligible Business Corporation Program

To qualify as an EBC, a business must meet certain criteria under the SBVCA. In particular, an EBC must:

• have 100 employees or fewer at the time of the initial investment;
• pay at least 75 percent of wages and salaries to BC employees (reduced to 50 percent in certain prescribed circumstances);
• be engaged in an eligible business activity (described below);
• have raised a minimum of $25,000 in equity capital prior to registration;
• maintain a permanent establishment in BC; and
• maintain at least 80 percent of its assets in BC.

Once registered, an EBC must apply for an equity authorization under the program for the current tax year. Equity authorization applications are approved at the discretion of the Investment Capital Branch and there is no assurance that an EBC will receive the full amount applied for. Tax credits claimed are on a first come, first served basis. In 2021, claims were suspended prior to the end of the year as the tax credit claims had exceeded the budget for the venture capital program. It is therefore important to ensure that claims for tax credits are made promptly after funds from eligible investors have been invested.

Investors in EBCs must be BC residents or a corporation with a permanent establishment in BC, be dealing at arm’s-length to the EBC and cannot directly or indirectly control the EBC. Shares issued by the EBC to investors cannot be redeemed, cancelled or transferred (with limited exceptions such as to a registered account) for five years. Each eligible investor is required to complete a Share Purchase Report. Individual investors will receive a refundable tax credit while corporate investors will receive a non-refundable tax credit which can be applied to current or future tax payable.

Contravention of any of the requirements under the SBVCA can result in an EBC losing their registration and exposes the directors and officers of the EBC to liability. In the event of shares being improperly transferred or redeemed within five years of issuance, any tax credits claimed will be required to be repaid by the investor, or an order can be made requiring the EBC itself to repay such amounts.

Venture Capital Corporation Program

A VCC invests in and may provide business and managerial expertise to eligible small businesses (ESBs). VCCs act as investment vehicles between investors and ESBs, with investors in a VCC being eligible for the 30 percent tax credit. The difference between ESBs and EBCs can sometimes be confusing – an EBC is registered under the SBVCA and meets the additional criteria outlined above, while an ESB is not registered under the SBVCA but qualifies for VCC investment.  The eligibility criteria for EBCs and ESBs are essentially the same except that an ESB is not required to have raised $25,000 in equity capital in order to be eligible to receive investment from a VCC.  As a result, all EBCs are, by definition, ESBs.  A VCC that invests in an ESB that is also registered as an EBC would not be eligible to receive the 30% tax credit itself, as VCCs are excluded from the definition of “eligible investors” under the SBVCA.

Registration Criteria

To be successfully registered under the SBVCA, a VCC must:

• be a BC incorporated company and include the “(VCC)” designation in its name;
• have never carried on any other business other than that of the VCC;
• have or will have at least $25,000 in equity capital; and
• have an authorized share structure consisting of only common shares without par value.

A VCC may only invest the equity capital it raises under the venture capital program in ESBs. In order for a business to be considered an ESB, it must:

• be incorporated in BC, or extra-provincially registered in BC (including by way of federal incorporation);
• have no more than 100 employees at the time of initial investment;

• pay at least 75 percent of wages and salaries to BC employees (reduced to 50 percent in certain prescribed circumstances); and

• be substantially engaged in one or more of the qualified business activities (described below).

In addition, VCC investment in an ESB is prohibited (subject to certain exceptions) if:

• the proceeds of the investment are intended to be used for certain prohibited purposes such as lending, investment outside of BC and payment of debt;
• the investment would result in the VCC controlling the ESB by way of majority investment; or
• a major shareholder of the VCC is, or was within the previous two years, a major shareholder or associate of the ESB.

Qualified Business Activities

Importantly, not every investment in every business qualifies for the tax credit. A VCC can only invest in an ESB that is engaged in a qualified business activity. An EBC is required to be engaged in a qualified business activity to be registered under the SBVCA. The Small Business Venture Capital Regulation designates the following activities as qualified business activities:

• Manufacturing and processing of goods in BC;
• Tourism;
• Research and development of proprietary technology;
• Economic diversification and development of community outside the Metro Vancouver Regional District (the “MVRD”) and the Capital Regional District (the “CRD”);
• Development of interactive digital media products that meet certain criteria;
• Development of clean technologies;
• Advanced commercialization involving digital technology tools outside of the MVRD and CRD that assist other businesses to scale-up; and
• Scale-up activities for businesses otherwise qualified under one of the above activities.

It is worth noting that there is a separate tax credit budget for companies located outside the MVRD and the CRD. To be approved under the economic diversification category, two letters of support from local economic development agencies are generally required.

Additional Considerations

It is important to note that investment into a VCC, EBC or ESB cannot be debt-like, and the funds invested cannot be used to create or to service debt (subject to certain exceptions which require prior approval by the venture capital program Administrator). In addition, the sale of securities of a VCC, ESB or EBC is still subject to all other applicable securities laws and regulations, including applicable prospectus exemptions.

The VCC and EBC programs offer valuable opportunities for BC investors and small businesses. The programs are powerful and well utilized, but ensuring compliance with the various requirements can be complicated. Companies or investors interested in taking advantage of these programs should seek qualified legal and accounting advice.

We sometimes get inquiries from a relative of a Will Maker wanting to challenge their relative’s Will prior to their relative’s death.  Because a Will does not take effect until the death of the Will Maker, this cannot be done.  A recent Ontario Court of Appeals case confirmed this.

While a person is mentally competent, they can change their Will at any time before their death, so the Will that a person is concerned about may not be the same Will that is in effect when the Will Maker dies.

The estate of a deceased person consists of the assets they own at the time of their death, so one cannot determine what the estate will consist of until the time of death.  While alive and competent, a person can sell or give away assets as they wish, subject to any legal obligations they have relating to those assets.  Many people make significant gifts prior to passing, to reduce probate fees, and to help their children or grandchildren when they need it the most.

Once a Will Maker has passed, the spouse and children of the Will Maker have the right to apply to vary the Will if they have not been adequately provided for, but this right does not arise until the Will Maker has passed. Other relatives such as grandchildren, stepchildren, or siblings have no right to apply to vary the Will for adequate provision.

Likewise, the right to challenge the validity of a Will because of undue influence or lack of capacity does not arise until the Will Maker has died.

If you have questions about estate planning, please contact one of our estate planning lawyers.  If you have questions about challenging a Will, please contact one of our estate litigation lawyers, after the Will Maker has passed.

Generally, and unless otherwise agreed by the spouses, the date of separation is when it is clearly made known to the other spouse the relationship is over, and steps are taken in that regard like physically separating, creating separate residences, closing joint bank accounts, etc.  What is important is how the spouses hold themselves out to the community including designations on tax returns or for beneficiaries of health coverage, etc.  Spouses can be separated and living under the same roof if they are acting more like roommates than spouses.  Roommates don’t cook each other meals or do one another’s laundry.  Roommates don’t generally go to office or family functions together, or act like they are a devoted couple.

It is on the date of separation that each spouse becomes a tenant-in-common with the other spouse of all family property existing on that date owned by either spouse, or in which either spouse has an interest.  That is, each spouse gets property rights in the other spouse’s property (subject to excluded property).  Each spouse is also equally responsible for family debts regardless if the debt is in one spouse’s name only.  Therefore, if you win the lottery after the date of separation you probably won’t have to share it with your estranged spouse, but if you win it during the relationship then you probably will have to share.

Further, on the day spouses separate, any designations they have in a will or power of attorney naming the other spouse as beneficiary or administrator is cancelled by law.  Therefore, reviewing your estate plan upon separating from your spouse would be prudent including any beneficiary designations in RRSPs, employment health plans, etc.

The date of separation also triggers a limitation period for non-married spouses who have cohabited like spouses for at least two years (living common-law).  A limitation period is a window of opportunity to assert your rights in court.  It is the time-period in which you must start your court case, or you will lose the right to do so.  If in a common-law relationship then you must start your court case within two years of the date of separation to claim an interest in your estranged spouse’s property, and if married then within two years of the date of divorce.  However, the running of the limitation period is suspended during negotiations involving family law professionals like lawyers, mediators, etc.

There is an interesting case[1] involved the death of one spouse in a marriage who had been separated for years from their estranged spouse.  The estate of the dead spouse brought a claim for the equalization of family property against the surviving spouse.  The surviving spouse argued the estate had no standing to bring the claim because the spouse was deceased, amongst other reasons.  The court found the estate could bring the claim and allowed the matter to proceed.  However, the court did not rule the limitation period applied to deceased spouses as it does to divorced spouses, but it suggested an estate should bring its claim within two years of the spouse’s death.

There are other time limits that also start to run on the date of separation.  It is the starting point used by the court to calculate when spouses have lived separate and apart for at least a year, the most common grounds used for divorce.  Also, Canada Revenue Agency will consider the date of separation when determining entitlement to, and amount of, certain benefits and credits like child tax benefits, GST refunds, etc.

Therefore, it is important to note the date of separation, and document it in an email, or otherwise, to your estranged spouse to confirm.

[1] Weaver Estate v. Weaver, 2022 BCCA 79(CanLI)

The British Columbia government recently proposed legislation to create a new annual provincial statutory holiday on September 30th.  Named the National Day for Truth and Reconciliation, the statutory holiday was first created by the federal government in 2021 as a step in the reconciliation process and in response to call to action number 80 of the Truth and Reconciliation Commission of Canada. According to a provincial government press release, “[e]nshrining National Truth and Reconciliation Day in B.C. law will give more people the chance to commemorate the history and legacy of the residential school system on September 30 each year”.

The legislation creating this new statutory holiday is expected to pass shortly.

The National Day for Truth and Reconciliation has been a federal holiday since 2021; however, it only applied to employers and employees subject to the Canada Labour Code, such as banks, radio and television broadcasting, air transportation, first Nations band councils, crown corporations, and road transportation services that cross provincial or international borders. Most organizations in British Columbia are not federally regulated and, therefore, were not obliged to provide time off to employees on September 30^th. This will change assuming the legislation passes and a new provincial statutory holiday is created.

The National Day for Truth and Reconciliation will be British Columbia’s 11^th statutory holiday. Like other statutory holidays, eligible employees are entitled to a paid day off or, if required to work, holiday pay at premium rates.

British Columbia joins Prince Edward Island, the federal government, the Yukon, the Northwest Territories and Nunavut in enshrining the National Day for Truth and Reconciliation as a statutory holiday.

My office is frequently graced with the delightful presence of seniors wanting to ‘re-do’ their Wills. Their reasons for this are numerous, and their history is certainly colorful. They may have very old Wills in place that desperately need re-visiting (sometimes 30 or 40 years old) OR worst case scenario they may never have gotten around to doing a Will at all (please don’t let that be you!). As a solicitor, I have to satisfy myself that the requisite testamentary capacity is present in order for them to understand and execute a valid Will. This requisite mental element can be basically categorized into two components:

(1) The testator must understand “the nature of the act in which he or she is engaged”, that is, actually making a Will. By this it is meant that “he or she should intend by his or her act to make a disposition of property, effective on death”; and

(2) The testator must be free of mental disorder.

The above two points seem simple enough, but if capacity is ‘borderline’ or if there are ‘red flags’ or ‘suspicious circumstances’ it is crucial that any solicitor acting in these circumstances confirms testamentary capacity in order to prepare a valid Will for his or her client.  This is not as easy as simply getting a note from the testator’s attending physician stating that the patient is capable to instruct for and execute a new Will. Case law shows that medical evidence, while persuasive, is not conclusive. A solicitor is still under an obligation to conduct a legal capacity assessment as well, which has been suggested by case law to be as follows:

The testator ought to be capable of making his/her Will with an understanding of:

(1) the nature of the business in which he/she is engaged;

(2) a recollection of the property he/she means to dispose of (not necessarily every detail and every figure in his/her investment portfolio, but a general understanding of the value of his/her estate is key);

(3) the persons who are the object of his/her bounty (are his/her beneficiaries logical? is he/she cutting out family and suddenly leaving everything to a new and much younger partner?); and

(4) the manner in which it is to be distributed between them.

It is not necessary that the client be capable of understanding his/her Will at the same level as a lawyer, interpreting all the provisions and legal jargon. The client must simply understand the more basic elements of which his/her Will is composed and the disposition of his/her property in its simple form.

I often see lack of testamentary capacity being alleged by disgruntled beneficiaries in situations where the testator suffered from dementia, including an increasing number of diagnoses of Alzheimer’s disease (all ages), those in the advanced stages of AIDS, those suffering post-stroke and those with other terminal illnesses, such as cancer. Some of these clients do indeed have the requisite testamentary capacity to understand and execute new Wills, however, in these cases the solicitor must be even more vigilant to conduct the appropriate legal assessment of their client and consult with the attending physician(s) to help determine testamentary capacity.

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 areas of Real Estate, Wills and Estates, and Intellectual Property at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

Pushor Mitchell, K.C., is Chair of Pushor Mitchell’s Medical Malpractice Group, and acts only on behalf of the injured in his personal injury practice.  In addition to medical malpractice, he focusses on brain injury claims, spinal injuries and death claims. He recently settled a medical malpractice case for a client in BC at mediation for over $5 million.

Paul has successfully settled many serious medical malpractice and birth injury cases involving BC and Alberta doctors, clinicians and hospitals, with settlements ranging from $1 million to over $5 million.

Medical malpractice and birth injury claims are complex and require significant experience and special attention.

Our medical malpractice experience includes settling claims for a wide range of injuries including cerebral palsy, missed diagnoses in neonate and pediatric care, birth injuries, spinal abscess, spinal surgeries, missed compartment syndrome, infectious diseases, wrongful deaths, orthopedic surgeries, vascular surgeries, appendix surgeries, implantation of faulty surgical devices, delayed diagnosis of cancer, and other serious but treatable conditions.

Paul Mitchell K.C. is a recognized leader in his field.  He has over 40 years experience pursuing compensation for catastrophic injuries sustained by the negligence of others, including health case professionals.  He is a sought after counsel and has a deep network of connections within the health care community he uses for the benefit of our clients.

If you believe you or a loved-one may have been injured as a result of a medical error please contact us without delay.  The law imposes time limits on the pursuit of such claims and it is important a thorough assessment of the potential claim is made before incurring the risk and expense of litigation.  We typically offer a contingency fee arrangement which means you do not have the added burden of funding the claim; the legal fee is paid out of compensation awarded at the end of the case.

We have access to some of the best medical experts available who have proved themselves to be able to provide an unbiased expert opinion on the care provided.  We also ensure the full extent of the client’s loss, including that cost of future care is maximized.  We strive to resolve cases through negotiation, and we use mediation in the appropriate circumstances.

When issues cannot be resolved through these channels, we will fight for your rights and aggressively pursue a fair solution through the courts.

Please do not hesitate to contact one of our medical malpractice lawyers for more information.  For previous articles on this topic click here.

Please reference the updated article on this topic HERE.

In order for the federal government to implement certain prohibitions, The Prohibition on the Purchase of Residential Property by Non-Canadians Act, S.C. 2022, c. 10, s. 235 (the “Act”) was passed and came into effect on January 1, 2023, and the Act will continue to be in effect for 2 years. While many details still require clarifications, the Regulations to the Act (the “Regulations”) have been released and assists in clarifying a few points.

What does the Prohibition Apply to?

By compiling the definitions in the Act and the Regulations, it is clear the prohibition applies only to “residential property”.

Residential property under the combined definitions of the Act and Regulations includes:

1. detached housing with three or fewer dwelling units;
2. a part of a building that is a semi-detached house, rowhouse unit, residential condominium, or other similar premises that is intended to be owned separate from any other unit in the building;
3. other properties as determined by regulation;
4. vacant land which is both zoned from residential or mixed use and which is within a census agglomeration or census metropolitan area.

The Act is targeting “non-Canadians”, although this is not a clearly defined term in the Act, the clarification of this has been addressed in the Regulations. Certain exemptions to this have been made already, and others seem likely to arise as time passes and reveals additional complexities of defining this term in an increasingly mobile global population.

A “non-Canadian” is defined as:

An individual who is:

• not a Canadian citizen;
• is not registered as an “Indian” under the Indian Act, RSC 1985, c I-5; or
• is not a permanent resident.

A company who is:

• not incorporated in Canada;
• wherein more than 3% of the equity or voting rights are held by a person who is non-Canadian; or
• wherein control in fact of the corporation, whether direct or indirect, is by a person who is non-Canadian.

There is room to expand this definition in future regulations.

What is a “Purchase”?

Although phrased in terms of a purchase, the Regulations define a purchase as “the acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property.”

Therefore, not only is it not limited to registered interests and filed transfers, but also includes the execution of contracts. The definition consequently states that the act of solely entering into a contract is an offense, as it creates a legal and equitable interest or right. This requires us to focus on the concept of acquisition of a legal or equitable interest, not on the completion of the usual formalities of transferring property at the Land Title Office.

However, a purchase does not include:

1. the acquisition by an individual of an interest or a real right resulting from death, divorce, separation or a gift;
2. the rental of a dwelling unit to a tenant for the purpose of its occupation by the tenant;
3. the transfer under the terms of a trust that was created prior to the coming into force of the Act; or
4. the transfer resulting from the exercise of a security interest or secured right by a secured creditor.

Note: the prohibition is not applicable to those liabilities assumed prior to January 1, 2023.

What exceptions have been created?

The non-Canadian prohibition will not apply to:

(a) a temporary resident* within the meaning of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 who satisfies prescribed conditions;

*  if the temporary resident is a student at a designated learning institution, the temporary resident must satisfy one of these four conditions:

1. they filed all required income tax returns under the Income Tax Actfor each of the five taxation years preceding the year in which the purchase was made,
2. they were physically present in Canada for a minimum of 244 days in each of the five calendar years preceding the year in which the purchase was made,
3. the purchase price of the residential property does not exceed $500,000.00, or
4. they have not purchased more than one residential property.

OR

*  if the temporary resident is authorized to work (with or without a permit) under the Immigration and Refugee Protection Regulations;

1. they worked in Canada for a minimum period of three years within the four years preceding the year in which the purchase was made, if the work is full-time work (30+ hours per week),
2. they filed all required income tax returns for a minimum of three of the four taxation years preceding the year in which the purchase was made, or
3. they have not purchased more than one residential property.

(b) a refugee under the Immigration and Refugee Protection Act,  2001, c. 27;

(c) a joint purchase with a spouse who is:

1. a Canadian citizen,
2. a person registered as an “Indian” under the Indian Act, RSC 1985, c I-5, or
3. permanent resident or refugee under the Immigration and Refugee Protection Act, S.C. 2001, c. 27;

(d) a person of a prescribed class of persons*.

* Prescribed Classes of Persons include:

1. foreign nationals who hold a passport that contains a valid diplomatic, consular, official or special representative acceptance issued by the Chief of Protocol for the Department of Foreign Affairs, Trade and Development;
2. foreign nationals, with valid temporary resident status, whose temporary resident visa was issued, or temporary resident status was granted, following an exemption provided under section 25.2 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, if the Minister is of the opinion that the exemption was justified based on public policy considerations to provide safe haven to those fleeing conflict; and
3. persons that have made a claim for refugee protection in accordance with subsection 99(3) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, if that claim has been found eligible and referred to the Refugee Protection Division under subsection 100(1) of that Act.

Further exemption available where the application of the prohibition is incompatible with the rights recognized and affirmed by section 35 of the Constitution Act, 1982 (Rights of Aboriginal Peoples of Canada).

What are the Enforcement and Remedial Provisions?
The legislation states:

“Every non-Canadian that contravenes the prohibition and every person or entity that counsels, induces, aids or abets or attempts to counsel, induce, aid or abet a non-Canadian to purchase, directly or indirectly, any residential property knowing that the non-Canadian is prohibited under this Act from purchasing the residential property is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.”

The language used in the offence provisions shows this to be an offence which requires the aiding party intend to help the non-Canadian purchaser contravene the prohibition. Based on this language it does not appear to be an offence to unwittingly provide information to a non-Canadian who later uses that information to contravene the prohibition. However, it will be difficult in practice to prove what was known to the parties, and what the intent of the information-provider was at the time of speaking with the non-Canadian.

The offence provisions also ensure the use of a corporation (or other entity) does not shield the aiding party from liability. Directors, officers, senior officials, and others are all considered party to and liable for the offence under a broad range of circumstances. Specifically, if an entity commits an offence, then “any of the following persons that directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and liable for the offence whether or not the corporation or entity has been prosecuted or convicted:

1. an officer, director or agent or mandatary of the corporation or entity;
2. a senior official of the corporation or entity;
3. any individual authorized to exercise managerial or supervisory functions on behalf of the corporation or entity.

Following conviction of the offence noted above, the superior court of the province in which the property is located (e.g. the British Columbia Supreme Court), is able to, upon application by the Minister, order the residential property be sold under any terms that the court considers appropriate in the following circumstances:

1. the non-Canadian is the owner of the residential property at the time the order is made;
2. notice has been given to every person who may be entitled to receive proceeds from the sale; and
3. the superior court of the province is satisfied that the impact of the order would not be disproportionate to the nature and gravity of the contravention, the circumstances surrounding the commission of the contravention, and the resulting conviction.

When an order for sale is made, it must include specific provisions, including:

1. the payment of the costs of the sale, including the costs incurred by the Minister in bringing the application for the order and any unpaid fines by the non-Canadian under the Act;
2. the payment of those, other than the non-Canadian, who are entitled to receive the proceeds of the sale in amounts and according to priorities that the superior court may determine;
3. the repayment of the non-Canadian of an amount that is not greater than the purchase price they paid for the residential property; and
4. the payment of any amount to the Receiver General for Canada.

Note that the validity of the sale of the property to the non-Canadian is not impacted by the legislation; therefore, the original seller of the residential property is not involved in the enforcement process.

Our ten most popular legal articles in 2022:

1. Canada’s Foreign Home Buyer Ban Explained – How It Works, Who Will Be Affected, And What We Still Don’t Know.

https://www.pushormitchell.com/2022/11/canadas-foreign-home-buyer-ban-explained-how-it-works-who-will-be-affected-and-what-we-still-dont-know/

2. Prohibition Of Rental Restrictions Under The Strata Property Act

https://www.pushormitchell.com/2022/12/prohibition-of-rental-restrictions-under-the-strata-property-act/

3. Issuance Of A Development Permit: Not Taking “No” For An Answer

https://www.pushormitchell.com/2022/04/issuance-of-a-development-permit-not-taking-no-for-an-answer/

4. Federal Government Releases Draft Underused Housing Tax Act

https://www.pushormitchell.com/2022/02/federal-government-publishes-draft-underused-housing-tax-act/

5. Executor’s Duty to Communicate

https://www.pushormitchell.com/2022/04/executors-duty-to-communicate/

6. Mandatory Paid Sick Leave Implemented in British Columbia

https://www.pushormitchell.com/2022/01/mandatory-paid-sick-leave-implemented-in-british-columbia/

7. Property & Financial Restraining Orders

https://www.pushormitchell.com/2022/02/property-financial-restraining-orders/

8. Estate Planning for Indigenous People

https://www.pushormitchell.com/2022/03/estate-planning-for-indigenous-people/

9. BYOB – ‘Tis The Season For Social Host Liability Claims – Or Is It?

https://www.pushormitchell.com/2022/11/byob-tis-the-season-for-social-host-liability-claims-or-is-it/

10. How Marriages End

https://www.pushormitchell.com/2022/03/how-marriages-end/

The New Year is a great time to review your Will. If you have an existing Will, that’s a great start. However, as your life changes, so will your Estate Planning needs.  Here are a few of the triggers that should get you thinking about re-doing your Will:

• If you marry or start a family, you’ll want an estate plan that ensures your loved ones are taken care of after you are gone. A Will is vital when you have children. Minor children can be provided for through Trusts set up for their health, maintenance, welfare and education. Guardianship issues can also be addressed if something happens to both parents. Wouldn’t you rather choose who gets to raise and care for your children?
• A major life event such as a divorce, should also trigger a review of your current Estate Planning to ensure that it meets your current needs;
• As your net worth increases, proper Estate Planning becomes vital. You will need to address tax issues and discuss with your Lawyer and Accountant the best way to minimize the probate fees and taxes payable, in order to maximize your beneficiary’s inheritance;
• If you have adult children who are still dependent on you, you can make sure they have financial support for the rest of their lives by setting up a Trust. Whether this be for a disability, or otherwise;
• If you’re thinking of leaving a spouse (including a common law spouse) or child out of your Will, or giving them less than they might reasonably expect, they may decide to contest your Estate, which is allowed under current legislation. This could result in the Court changing your Will to give your spouse and/or child(ren) a greater share of your Estate than you would have liked. Be sure to consult with a Lawyer on this who will be able to discuss your options with you and create an Estate Plan designed to minimize these claims;
• Simplifying your Will – maybe it’s time to get rid of those Trusts that overcomplicate your Will? With changes to the way Trusts are taxed, they are not as advantageous anymore, and can add a complexity to your Estate that is not necessary. Time for a review with your accounting and legal advisors.

Those are just some of the reasons to review your Will. Reviewing and updating your Will gives you peace of mind that you have cared for your loved ones in the very best way you can.

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information real estate matters or 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.

On November 28, 2022, we published an explanation of the federal government’s new Prohibition on the Purchase of Residential Property by Non-Canadians Act (the “Act”). At that time, the federal government had yet to fully detail how the prohibition would be applied and what kind of exemptions would be carved out.

On December 21, 2022, the Regulations accompanying the Act were released, clarifying a number of details. This article will build on our earlier explanation by discussing what the Regulations have revealed.

Non-Canadian Entities.

The Regulations expand on the definition of what constitutes a non-Canadian under the Act and the exemptions to the class of non-Canadians.

Prior to the release of the Regulations, section 2 of the Act classified corporations incorporated outside of Canada or a Canadian province as “non-Canadian.” However, the Regulations have expanded on the definition of non-Canadian “entity” to include “an entity formed otherwise than under the laws of Canada or a province” as well as any entity that is controlled by an entity that is not formed in Canada or a Canadian province, or is controlled by a non-Canadian as defined in section 2 of the Act.

Consequentially, the definition of non-Canadian is not limited to individuals and corporations but now captures other company structures, including partnerships.

The Definition of Control.

One definition that was missing in the original legislation was what the government would consider “control” of a corporation or entity. The Regulations have now illuminated what particular threshold constitutes control under the Act. The Regulations define “control” of a corporation or entity as:

“(a) direct or indirect ownership of shares or ownership interest of the corporation or entity representing 3% or more of the value of the equity in it, or carrying 3% or more of its voting rights, or

(b) control in fact of the corporation or entity, whether directly or indirectly, through ownership, agreement or otherwise.”

In comparison to other areas of law, a 3% control threshold is significantly lower and creates a circumstance where many companies considering purchasing residential real estate should carefully consider their ownership and equity structures to ensure they do not violate the Act’s prohibition.

Residential Property Exclusion

As with the definition of non-Canadian, the definition of “Residential Property” outlined in the Act left a number of questions, including what would constitute exempted “prescribed real property or immovables.”

The Regulations set out that property located in an area of Canada that is not either a census agglomeration (“CA”) or a census metropolitan area (“CMA”) is considered a prescribed property or immovable and is not subject to the prohibition under Act. Practically speaking, this means that some common recreational property locations (such as Big White) appear to be excluded from the prohibition for the time being.

Statistics Canada determines the definitions and boundaries of CAs and CMAs. The boundaries of a CA or CMA may vary over time, meaning that properties excluded from the Act’s prohibition in 2023 may not be excluded in 2024. Thus, it is important for developers, investors, and real estate professionals working with non-Canadians to consult the latest Statistics Canada determinations to see what properties may have become exempt.

Vacant Land.

The Regulations have also expanded the definition of Residential Property to include land without a dwelling located within a CA or CMA that is zoned for residential use or mixed-use. As a result, non-Canadians will be prohibited from purchasing vacant land within a CA or CMA, depending on the zoning.

What constitutes a “purchase.”

Before the Regulations’ release, it was noted that the Act did not define what precisely was meant by the term “purchase,” this has been remedied by the Regulations.

Section 4 of the Regulations defines “purchase” as:

“the acquisition, with or without conditions, of a legal or equitable interest or a real right in a residential property.”

This means that any acquisition, whether for a legal interest or a beneficial interest acquired by a new beneficiary under a trust, would constitute a purchase under the Act. As a result, the transfer of beneficial ownership of a property to a non-Canadian under a trust may be prohibited, regardless of whether the trustee is a Canadian citizen or permanent resident.

However, the Regulations also create exemptions for activities that would otherwise constitute a purchase. Namely, that a purchase will not include:

“(a) the acquisition by an individual of an interest or a real right resulting from death, divorce, separation or gift;

(b) the rental of a dwelling unit to a tenant for the purpose of its occupation by a tenant;

(c) the transfer under the terms of a trust that was created prior to the coming into force of the Act; or

(d) the transfer resulting from the exercise of a security interest or secured right by a creditor.”

Conditions for Temporary Residents

Our previous article noted that students and temporary workers in Canada on valid work permits would be excluded from the prohibition on purchasing residential real estate. The Regulations clarify what conditions a temporary resident must fulfill to qualify for the exemption, including a restriction on the number of properties that international students and temporary foreign workers may purchase and the value of the property that an international student may purchase.

International students enrolled in a program of study at a designated learning institution must satisfy the following:

“(i) they filed all required income tax returns under the Income Tax Act for each of the five taxation years preceding the year in which the purchase was made,

(ii) they were physically present in Canada for a minimum of 244 days in each of the five calendar years preceding the year in which the purchase was made,

(iii) the purchase price of the residential real property does not exceed $500,000, and

(iv) they have not purchased more than one residential property.”

Similar conditions are outlined for temporary residents working in Canada under a valid work permit. Temporary workers who hold a valid work permit or are authorized to work in Canada under the Immigration and Refugee Protection Regulations will be exempted from the Act’s prohibition if they satisfy the following conditions:

“(i) they worked in Canada for a minimum period of three years within the four years preceding the year in which the purchase was made, if the work is full-time work as defined in subsection 73(1) of the Immigration and Refugee Protection Regulations,

(ii) they filed all required income tax returns under the Income Tax Act for a minimum of three of the four taxation years preceding the year in which the purchase was made, and

(iii) they have not purchased more than one residential property.”

The Regulations have delivered a more precise understanding of how the federal government plans to apply the Act and the prohibition on the purchase of residential real estate by non-Canadians. Furthermore, it has set a repeal date of January 1, 2025, when the Act will no longer be in force. Real estate professionals, developers and investors must exercise a great deal of caution, especially regarding business ownership structures, to prevent running afoul of the Act’s prohibitions.

For more information, please contact Rebecca Dickson at dickson@pushormitchell.com or Kyle Ramsey at ramsey@pushormitchell.com.

The BC Government announced its Safer Communities Action Plan on November 20^th, 2022. The Action Plan aims to introduce several widespread reforms to the criminal justice system, focussing on two key objectives: strengthening enforcement measures for repeat and violent offenders, and strengthening intervention services to provide support.

As part of the Safer Communities Action Plan, the BC Government has committed to opening ten new Indigenous Justice Centres (“IJCs”) across the province over the next two years. There are currently four IJCs operating in British Columbia: three physical centres located in Prince George, Prince Rupert and Merritt, and one virtual centre.

IJCs provide culturally appropriate services to Indigenous people in criminal law and child protection matters. These services include:

• facilitating the implementation of restorative justice principles in sentencing;
• promoting offenders and communities to help offenders transition back into their communities;
• supporting communities to implement Indigenous forms of justice;
• providing legal representation to Indigenous people in criminal and child protection matters; and,
• fostering elder and community supports in courts.

IJCs are operated by the BC First Nations Justice Council whose head office is located in Westbank.

One of the overarching rationales behind IJCs is to address the over-representation of Indigenous people in the criminal justice system. Indigenous people account for approximately 5.9% of British Columbia’s population. Yet, Indigenous people represent approximately 35% of the individuals incarcerated in the province. This number is even higher in other parts of the country. In Saskatchewan, it is estimated that about 75% of people incarcerated in provincial prisons are Indigenous. The long-lasting impacts of colonialism and intergenerational trauma are some of the factors which have contributed to this reality.

In recent years, the BC Government has committed to addressing the challenges that Indigenous people face by taking steps towards reconciliation. In 2019, the government passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA). The purpose of DRIPA is to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to provide a framework for reconciliation in British Columbia. Once implemented, DRIPA aims to align the laws of British Columbia with the principles of UNDRIP and require the government to take concrete steps to consult and cooperate with Indigenous people to meet the objectives of UNDRIP. IJCs are merely one example of the BC Government’s response to reconciliation.

The first five IJCs will open in metropolitan areas next year. According to the BC First Nations Justice Council, those IJCs will open in Nanaimo, Victoria, Vancouver, Surrey and Kelowna. More work will need to be done to address the challenges that Indigenous people face in the criminal justice system. However, these new IJCs are a step forward in the right direction.

Sayre is an articled student at Pushor Mitchell LLP and will be called to the Bar of British Columbia in January 2023. He focuses primarily on assisting clients with Indigenous-related matters.

If you have Wills that provide for a number of testamentary trusts for spouse and children (and grandchildren), you may want to have them reviewed to see if there is any advantage to maintaining all of those separate trusts.

Prior to 2016, estate planners often recommended separate testamentary trusts in Wills to take advantage of the tax treatment of these trusts as separate taxpayers, which each had the advantage of separate graduated marginal tax rates. For estates with significant investment holdings, it could mean savings of $20,000 in income tax each year for each trust. That tax advantage was removed in 2016, so some Wills with multiple trusts are now more complicated to administer than they need to be, without the tax advantages.

Trusts can still be useful for other reasons, such as:

1. protecting capital for children of a first marriage, while providing for the lifetime support of the second spouse;
2. protecting persons with spending or lifestyle issues from have too large a lump sum of money at a time;
3. protecting a child with a controlling or greedy spouse; or
4. managing the finances of a beneficiary entitled to disability benefits so that the disability benefits will not be affected.

If the only reason for the trusts was income splitting, and the beneficiaries don’t want the trusts, the executor must take extra legal steps to wind up each trust while administering the estate, or if the trusts are not wound up, the executor must file separate tax returns for each trust.

You may want to review your will with your estate planning lawyer to see if it makes sense to simplify.

Our Product Liability Group have considerable experience in product liability and defective product cases.

Partner Paul Mitchell, K.C. recently settled a 2.4-million-dollar products liability action. Last year he settled a 1.8-million-dollar product liability action in Alberta.

We have experience in product liability claims involving:

• the design and manufacture of automobiles (including roll over and roof crush cases),
• trucks
• motorcycles
• drive shafts
• bicycles
• bicycle forks
• motorcycle forks
• seatbelts (seatbelt failure)
• swimming platforms
• boating accidents
• marketing and special event tents,
• retail display racks,
• stair design,
• highway and road design
• water slides,
• Sumo wrestling suits,
• medical components,
• municipal and provincial governments

We have brought these lawsuits in Canada, the United States, and the United Kingdom.

Product liability litigation in Canada is in a constant state of development.

Pushor Mitchell LLP’s Product Liability Group looks for the most inventive, cost-effective, and time-efficient means of resolving each of our clients’ claims, minimizing the financial cost and risk of product liability litigation and regulatory issues.

Resolution may be achieved through negotiated settlements, regulatory proceedings, alternate dispute resolution, or litigation.

Distance is not an issue. We act for clients all over BC and Alberta. We also work locally, nationally, and cross-border, in collaboration with local counsel where necessary.

On November 24, 2022 amendments to the Strata Property Act came into force removing sections of the Act that permitted residential rental restrictions. Strata corporations in British Columbia can no longer pass bylaws that restrict rentals or control who may be the tenant or any other terms of the rental agreement. As of November 24, 2022, any strata bylaws that do restrict residential rentals are no longer enforceable.

There are two exceptions to this prohibition on rental restrictions:

• Strata corporations may still pass bylaws that “require one or more persons residing in a strata lot to have reached a specified age that is not less than 55 years.” This exception is to help support senior housing.
• Strata corporations may pass a bylaw that prohibits what is commonly referred to as “short-term rentals” or “short-term accommodations”.

This exception is not specifically included in the changes to the Strata Property Act. The government, however, has cited this exception in its press release and its website. According to the government’s website, short-term rental restrictions are permitted because this type of rental is considered a “licence to occupy and a commercial use”.

Accordingly, it appears the government’s goal is to prohibit the restriction of rentals that would be governed by the Residential Tenancy Act.

If you are a strata corporation or developer, you may be required to update your bylaws in accordance with the Strata Property Act or to amend your disclosure statement under the Real Estate Development Marketing Act to comply with the new prohibition on rental restrictions.

If you have any questions or would like assistance, please contact our real estate development team.

Please be advised that this article is for informational purposes and is not specific legal advice of any kind.

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.

Children

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.

If you have any further questions, we recommend that you seek advice from legal counsel (or family lawyer).  Please be advised that this article is for informational purposes and is not specific legal advice of any kind.

As social gatherings kick into high gear over the holidays people are hosting parties and events at their homes and likely asking their guests to bring a bottle or two of their favorite adult beverages, and likely also are providing adult refreshments for their guests. These gatherings raise a number of interesting legal questions about who is or is not responsible in the event that someone injures themselves either while attending the party or making their way home.

The seminal case on this issue is Childs v. Desormeaux, 2006 SCC 18, where the Supreme Court of Canada addressed the question of whether a social host owes a duty of care to third parties who may be injured by an intoxicated guest.

In Childs the Supreme Court dismissed the appeal and posited that social hosts of parties where alcohol is served do not owe a duty of care to public users of the highways. This case was recently revisited in British Columbia in the case of Sidhu v. Hiebert, 2022 BCSC 1024, where the court noted that hosting a party was a common occurrence and not an invitation to participate in highly risky activity. Indeed, a host is not a parent, a commercial host, or a boat captain, among other things, and therefore does not have a positive duty to act. An individual who attends a party does not leave their autonomy at the front door and they remain responsible for their conduct and choices.

However, the court noted that if a social host does something more and this turns the social gathering into an inherent and obvious risk, then they may be held responsible if someone is injured. Some of the actions that could invite risk included whether guests were invited to bring their own alcohol, the size and type of party, whether other risky behavior was occurring at the party, such as underage drinking or drug use.

In sum, as with all things legal it depends on the facts, but as we move into the holiday season it’s important to be vigilant and look out for others and make sure your guests have a safe ride home.

If you have any further questions, we recommend that you have a discussion with your lawyer.  Please be advised that this article is for informational purposes and is not specific legal advice of any kind.

Further to article below – please click HERE for update on this issue.

Beginning January 1, 2023, the federal government’s Prohibition on the Purchase of Residential Property by Non-Canadians Act (the “Act”) will come into effect across Canada, resulting in what is being referred  to as the foreign home buyer ban.

The practical effect of the Act is that individuals who meet the definition of “non-Canadian” will not be permitted to purchase residential real estate for at least two years. The Act may also impact various Canadian citizens who offer their services in the residential real estate market.

Below we have outlined what the legislation prohibits, some relevant definitions, exemptions and what kind of properties foreign buyers will be prohibited from purchasing. We also briefly discuss the legislation’s penalty provision, which may impact a variety of Canadian professionals that provide residential real estate advice in Canada.

What is Prohibited under the Act?

Section 4 of the Act states:

“Despite section 34 of the Citizenship Act,[1] it is prohibited for a non-Canadian to purchase, directly or indirectly, any residential property.”

Who is Considered a Non-Canadian under the Act?

Section 2 of the Act defines a non-Canadian as:

“(a)     An individual who is neither a Canadian citizen, a permanent resident of Canada, nor a person who is registered as an Indian under the Indian Act;

(b)     A corporation incorporated outside of Canada or a Canadian province;

(c)     A corporation incorporated in Canada or a Canadian province that is controlled by a non-Canadian as defined in (a) and (b) and whose shares are not listed on a Canadian stock exchange or a stock exchange designated by the Minister of Finance under the Income Tax Act; or

(d)     A prescribed person or entity.”

Exceptions from the class of non-Canadians.

However, not all non-Canadians are prohibited from purchasing Canadian residential real estate. Section 4(2) of the Act outlines particular individuals who will be exempt from the ban.

Section 4(2) states:

“(a) a temporary resident under the Immigration and Refugee Protection Act – a non-Canadian who has a valid visa or other document required by the regulations, such as students and foreign workers under federal work permits;

(b)    a protected person under the Immigration and Refugee Protection Act – a person who has been granted refugee status under the United Nations Convention Relating to the Status of Refugees;

(c)    an individual who is a non-Canadian and who purchases residential property in Canada with their spouse or common-law partner if the spouse or common-law partner is a Canadian citizen, a person registered as an Indian under the Indian Act, a permanent resident of Canada or a person described in (a) and (b); or

(d)    a person of a prescribed class of persons.”

What is Considered Residential Property?

Section 2 of the Act defines residential property as:

“any real property or immovable property other than a prescribed real property or immovable that is situated in Canada, and that is:

(a)    a detached house or similar building, containing not more than three dwelling units, together with that proportion of the appurtenances to the building and the land subjacent or immediately contiguous to the building that is reasonably necessary for its use and enjoyment as a place of residence for individuals;

(b)    a part of a building that is a semi-detached house, rowhouse unit, residential condominium unit or other similar premises that is, or is intended to be, a separate parcel or other division of real property or immovable owned, or intended to be owned, apart from any other unit in the building, together with that proportion of any common areas and other appurtenances to the building and the land subjacent or immediately contiguous to the building that is attributable to the house, unit or premises and that is reasonably necessary for its use and enjoyment as a place of residence for individuals; or

(c)     any prescribed real property or immovable.”

Under the Act, a dwelling unit is defined as “a residential unit that contains private kitchen facilities, a private bath and a private living area.”

What are Offences under the Act?

Section 6 of the Act outlines the offences, penalties, and who is considered a party to the offence in the case of a corporation.

Section 6(1) of the Act states:

“Every non-Canadian that purchases residential property and every person or entity that counsels, induces, aids or abets or attempts to counsel, induce, aid or abet a non-Canadian to purchase, directly or indirectly, any residential property knowing that the non-Canadian is prohibited under this Act from purchasing the residential property is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.”

Section 6(2) of the Act states:

“If a corporation or entity commits an offence, any of the following persons that directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and liable for the offence whether or not the corporation or entity has been prosecuted or convicted:

(a)    an officer, director or agent or mandatary of the corporation or entity;

(b)    a senior official of the corporation or entity;

(c)    any individual authorized to exercise managerial or supervisory functions on behalf of the corporation or entity.”

Reflections on the Act

The offence provision in the Act is worded quite broadly. As a result, anyone who advises or assists a non-Canadian individual or corporation in purchasing residential real estate, either directly or indirectly, while the ban is in effect could face a significant penalty. Additionally, section 6(2) makes it clear that when a non-Canadian corporation purchases residential real estate, various individuals involved with the purchase may be liable to pay a penalty.

For the time being, there is a significant amount of uncertainty about the Act. It remains unclear how the penalty will be enforced, what advice and actions will be penalized, and even what “control” of a corporation by a non-Canadian actually means. The definition of control under the Act is “the meaning assigned under the regulations.” Unfortunately, there are currently no regulations in place,[2] so it is difficult to determine whether a non-Canadian is considered to control a corporation for the purposes of the Act.

The definition of non-Canadian also remains uncertain. The current definition is quite broad and captures many individuals and corporations that lawyers, real estate agents, and property developers regularly work with in the course of their businesses. Moreover, the class of non-Canadians may expand over time when regulations are introduced. This means that professionals offering services in the Canadian residential real estate market will have to actively inform themselves of changes as the Act and regulations come into effect.

Beginning on January 1, 2023, Canadian professionals offering services to non-Canadian individuals and corporations will need to be mindful of their advice to those clients. The broad wording of the Act’s offence provision creates a situation where lawyers, real estate agents, and anyone offering services or advice in the Canadian residential real estate market must carefully consider how they discuss the Act and the potential ramifications of trying to circumvent it.

Rebecca Dickson is an associate lawyer practicing primarily in the areas of business and securities law at Pushor Mitchell. Kyle Ramsey is an articled student at Pushor Mitchell who completed law school at the University of Alberta, and will be called to the bar in 2023.

For more information, please contact Rebecca Dickson at dickson@pushormitchell.com or Kyle Ramsey at ramsey@pushormitchell.com.

[1] Section 34 of the Citizenship Act grants rights to individuals who are not citizens of Canada to acquire and hold property in the same way as Citizens of Canada.

[2] As of November 28, 2022.

Whenever I have clients that have Canadian property and assets in a foreign jurisdiction, I always recommend that they consult with a lawyer in the jurisdiction where they hold those foreign assets (Mexico for example – and sometimes multiple foreign jurisdictions). If a client has a Will in another jurisdiction, or jurisdictions, to govern their foreign assets, then their Will here becomes their Canadian Will and we typically use clauses such as the following:

“This Will (sometimes called my “Canadian Will”) deals only with all of my property of every kind situated in Canada at my death (both moveable and immovable), including but not limited to, any interests in land(s), and all of my bank accounts, investments, Registered Retirement Savings Plans and / or Registered Retirement Income Funds (where the designated beneficiary is my Estate), held with any and all institutions located in Canada (my “Canadian Property”).  I may have also prepared other Wills that deal with my property of every kind situated in jurisdictions other than Canada (my “Foreign Property”), to be applicable as at the date of my death (sometimes called my “Foreign Will(s)”).  In this regard, it is my express wish that my Canadian Will govern the distribution of my Canadian Property, and that my Foreign Will(s) govern the distribution of my Foreign Property, as may be applicable.  In the absence of any Foreign Will(s), it is my further wish that the provisions of my Canadian Will shall apply as to the distribution of my Foreign Property to the extent this may be possible.”

If you have assets in multiple jurisdictions then your Estate Planning immediately becomes more complicated and it will be very important to consult appropriate lawyers who are qualified in each jurisdiction where you hold your assets, and have them work together to liaise on your Estate Plan.

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 real estate matters or 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!

It is an important lesson, and unfortunately many learn the hard way: courts are reluctant to intervene and “rescue” a party who later regrets contractual arrangements. This is because contracts hold a special place in our society. They enable all sorts of other agreements to help us function without the constant direction of judges and other officials. There is great value in allowing parties to seek terms to which they are agreeable, and there is a general sentiment that if someone feels they are being offered a bad deal then they can go elsewhere.

There are of course some exceptions where courts will order a contract unenforceable, but the case of Century 21 Seaside Realty Ltd. v Armstrong, 2022 BCSC 646, is not one of them. In that case, the plaintiff, a real estate brokerage, sought to uphold the terms of what were called “standard form multiple listing agreements” or “MLS Contracts”. It was a term of the contracts [section 5A(1)] that commission was owed to the plaintiff if “a legally enforceable contract of sale between the Seller and a Buyer” was entered into during the term of the contracts. The defendants reached a sale agreement for the properties. The sale agreement did not close. The defendants did not seek to enforce the sale agreement against the buyer. The real estate brokerage then sought to enforce their commission fee pursuant to the MLS Contracts.

Of particular interest, the BC Supreme Court appears to have adopted the reasoning from the Ontario Court of Appeal that: despite the realtor owing the defendants a fiduciary duty after executing the MLS Contracts, no such duty existed prior or in regard to the negotiation of the MLS Contracts themselves. The parties “were independent, arms’ length parties contemplating entering into a contract together.” In short, it was for the defendants to act in their own interests in entering into the MLS Contracts – be it through seeking legal advice, negotiating the terms and/or seeking a different realtor if necessary.

Practically, realtors or others may be reluctant to enforce contractual terms where there is a general sense of unfairness, and bad publicity. Legally, they can do so. It is important to not sign a contract without a careful reading, and do not assume concerns with the wording can be fixed later. Negotiate before you sign, and if there are any uncertainties, contact a lawyer.

The Canadian Securities Administrators have approved amendments to National Instrument 45-106 – Prospectus Exemptions, to introduce the new “Listed Issuer Financing Exemption” for companies listed on a Canadian stock exchange (the “Exemption“).  By relying on a company’s existing continuous disclosure record and a simplified disclosure document, the Exemption is anticipated to reduce the regulatory burden and associated costs of certain financings for Canadian public companies. Subject to receipt of ministerial approvals, the Exemption is expected to be available for use on November 21, 2022.

Eligibility Criteria

To rely on the Exemption, a company must:

1. have been a reporting issuer in Canada at least 12 months;
2. have securities listed on a recognized Canadian stock exchange;
3. have active business operations;
4. not be an investment fund;
5. have filed all periodic and timely disclosure documents as required under applicable Canadian securities laws;
6. prepare a short offering document that will be considered a “core” document under the secondary market civil liability regime; and
7. reasonably expect that it will have available funds to meet its business objectives and liquidity requirements for a period of 12 months following the distribution.

Limitations on Scope of Application

The Exemption will only apply to offerings that fit within the following parameters:

1. The total dollar amount of the distribution, when combined with all other distributions undertaken by the company in reliance on the Exemption during the prior 12 month period, must not:
   1. exceed the greater of (i) $5 million, or (ii) 10% of the company’s market capitalization, to a maximum of $10 million; or
   2. result in an increase of more than 50% in the issuer’s outstanding listed equity securities, as of the date that is 12 months before the date of the news release announcing the distribution.
2. The security being distributed must be a listed equity security or a unit consisting of a listed equity security and a warrant exercisable to acquire a listed equity security.
3. The issuer must not allocate the available funds to (i) a significant acquisition, (ii) a restructuring transaction that would require additional financial statements under the prospectus rules, or (iii) any other transaction for which security holder approval is required.

Disclosure Requirements

To rely on the Exemption, a company must meet the following disclosure requirements:

1. The company must issue and file a news release that announces the offering and contains prescribed language, and the issuer must close the financing within 45 days of such news release.
2. The company must file a completed Form 45-106F19 Listed Issuer Financing Document (the “Form“), which is the streamlined disclosure document introduced for purposes of the Exemption, in accordance with the following requirements:

1. 1. the Form must be filed before soliciting an offer to purchase and no later than three business days after the date of the Form;
   2. if the company has a website, the Form must be posted on its website, and the company must take reasonable steps to ensure that prospective purchasers are aware of the means of accessing the Form; and
   3. the Form, together with all documents filed under Canadian securities laws within the earlier of (i) 12 months before the date of the Form and (ii) the date that the company’s most recent audited annual financial statements were filed, must disclose all material facts relating to the securities being distributed under the Exemption and must not contain a misrepresentation.

3. The company must include prescribed language in any initial written communication with a prospective purchaser.
4. The issuer must file a Form 45-106F1 Report of Exempt Distribution disclosing information related to the financing and the purchasers within 10 days of the distribution.

Under the Listed Issuer Financing Exemption, qualifying public companies will no longer need to prepare and file a short form prospectus and can instead rely on a condensed short offering document, saving both time and costs. The Listed Issuer Financing Exemption should allow smaller issuers greater access to retail investors and provide retail investors with a broader choice of investments. Equity securities issued in reliance on the exemption will be freely tradeable but subject to a seasoning period that will be satisfied by the company being a reporting issuer in good standing.

If you are involved with a public company and have questions concerning the impending amendments to NI 45-106, 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 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 licensed to practice law in Alberta and British Columbia.

Intellectual Property – What All Companies Should Know

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 rights 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. Protection early on is often much cheaper than battling out any potential infringement issues down the road.

Vanessa DeDominicis is a Partner and a Registered Trademark Agent with the Canadian Intellectual Property Office and is also able to file Trademarks with 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

The Canada Business Corporations Act (“CBCA”) was amended effective August 31, 2022 to require shareholders of a public company governed by such legislation to vote “for” or “against” directors at annual meetings of shareholders. This is a departure from the “for” and “withhold” options previously offered to CBCA public company shareholders. Subject to certain exceptions, the amendments also contemplate that each director in an uncontested election (i.e., where the number of director nominees is equal to the number of directors positions to be filled) must receive more “for” votes than “against” votes to be elected.

The ability for shareholders to vote against the election of a director will be a new development in Canada. It is important to note, however, that under Canadian securities laws, a form of proxy must provide an option for the shareholders to vote “for” or have their votes “withheld” from voting in respect of the election of directors. Accordingly, reconciling these different requirements may result in shareholders of a company governed by the CBCA being given three choices for uncontested director elections: “for”, “against” or “withhold”. While an exception from the securities law requirements is available if:

1. the issuer complies with the requirements of the laws relating to the solicitation of proxies under which the reporting issuer is incorporated, organized or continued (e.g., the CBCA), and
2. such requirements are substantially similar to the requirements under Canadian securities laws, the Canadian Securities Administrators have not yet provided guidance on whether the amendments will be considered substantially similar to the requirements under Canadian securities laws.

Under current TSX requirements, directors must offer to resign if they do not receive a majority of “for” votes, but the board has the option of not accepting such resignation in exceptional circumstances. The CBCA amendments effectively remove this discretion. The amendments will also result in changes for many TSXV and CSE listed issuers since they are not currently required to follow a majority voting standard.  However, the amendments create two exceptions to allow an unsupported nominee to be appointed as a director if that person is necessary for the corporation to meet its obligation under the CBCA for having either:

1. at least two directors who are not officers or employees of the corporation or its affiliates; or
2. to meet Canadian residency requirements, such as at least 25% of the board members being Canadian residents (or at least one director if the corporation has less than four directors).

If you are involved with a public company organized under the CBCA and have questions concerning the recent amendments to the Act, 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 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 licensed to practice law in Alberta and British Columbia.

When a Trust is established, through a Will or otherwise, it is usually recommended for the Will maker or Settlor to provide the trustees of the Trust with a Letter of Wishes (sometimes called a Memorandum of Wishes) with regard to the administration of the Trust and how they would like things to be handled. A Discretionary Trust will contain very little specific direction to the Trustee, because by its very nature it is “discretionary” and leaves a lot up to the Trustee.  A Letter of Wishes is a non-binding document wherein the creator of the Trust can share personal thoughts and perspectives with those who will be potentially acting over the years as Trustee. Letters of Wishes are very personal documents and can contain a myriad of suggestions for Trustees. A few examples are below:

– direction to give a gift of $100 on every birthday to X, Y, Z;

– direction to purchase a car from Trust funds on X’s 18^th birthday, not to exceed $10,000;

– direction to allow Trust funds to be used for a down payment on X’s first home, not to exceed 25% of the home’s purchase provided X can demonstrate that they can support the remaining 75% by way of mortgage;

The list could go on and on. This is not something that your Lawyer needs to draft. It should come from you, to your Trustee. Your Lawyer can certainly give you suggestions and a template to work with.

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 Wills and Estates at Pushor Mitchell LLP in Kelowna.

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 endeavoring 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 favorable experience in operating and managing a public company. At least two directors must not be employees, senior officers, control persons, or management consultants. All members of management should be free of any history of past criminal behaviour, fraud, breach of trust, or securities violations. Except in limited circumstances, a listed company must have a chief executive officer (“CEO”) and a chief financial officer (“CFO”); the CEO and the CFO cannot be the same person.

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

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

After the IPO — Ongoing Obligations

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

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

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

Conclusion

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

Leaving a charitable donation in your Will can be a wonderful way to benefit a charity that has meant a great deal to you during your lifetime. It gives the testator a really ‘feel good’ last word, and an opportunity to say ‘thank you’ for all the great work that charities do for our community.

There are many different types of assets that can be donated. If your Estate will have cash, you can simply donate a sum of money to your favourite charity. It is also possible to donate your registered accounts like RRSPs, life insurance proceeds or personally held assets.

There are several reasons that people decide to make a charitable bequest:

• Helping others – We all have an innate desire to help others. This is, of course, the main reason we give to charities during our lifetimes. A Will can ensure you keep giving after your death.
• Tax Benefits – Your estate can reduce taxes that may be payable by making a charitable donation. You should talk to your Accountant for more information about this, during your Estate Planning process.
• Leaving a legacy – Some charities will remember their donors by engraving their name on to a plaque, painting, wall or other object. This can leave you with a positive legacy and help console your bereaved loved ones. It may be somewhere they can visit and derive comfort from.

There are also different types of bequests that can be drafted into your Will, depending on what you wish to achieve with your charitable gift:

• Specific Bequest: You can designate a specific dollar amount or piece of property, such as real estate, stocks, bonds or works of art, for example: “ I give the sum of $X.XX (or description of other property) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”
• Residual Bequest: You can donate all or a portion of your estate to the charity after all your debts, taxes, expenses and other bequests have been paid “ I give the residue of my estate (or percentage of the residue of my estate) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”
• Contingent Bequest: Your gift takes effect only if the primary intentions cannot be met (sometimes called the ‘disaster clause’). “ If neither (name of primary beneficiary) nor (name of alternate beneficiary) survives me for 30 days, then I give (describe amount of cash, property, percentage of residue or other gift) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”

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.

Anyone who is contemplating selling their business should start the planning process early in order to maximize the value that a third party will pay. Part of that planning should include readying their business for the purchaser’s “due diligence” review. This due diligence usually takes place after signing of a letter of intent or purchase agreement, but before the purchaser becomes legally obligated to complete the transaction.  Preparing for the due diligence review will ensure that prospective purchasers aren’t scared away by any unexpected issues.

As part of this process, a prospective purchaser may want to review some or all of the following:

1. Corporate records, including articles, bylaws and minutes;
2. Documents evidencing securities issuances;
3. Material contracts and client lists;
4. Outstanding or potential litigation;
5. Employment agreements;
6. Financial records and tax filings;
7. Real property rights;
8. Intellectual property rights; and
9. Insurance.

Material contracts include agreements with any major customers and suppliers, any significant debts or financial obligations, or any other agreement that could have a material impact on a business. If a seller has standing (unwritten) arrangements, it’s advisable to document them via written agreements prior to the due diligence review. If a prospective purchaser intends to employ their current employees, they will want to ensure that there are employment agreements in place. They may also want to ensure that the company’s employees have entered into confidentiality and protection of corporate interest agreements.

If a company owns real property, the purchaser will want to ensure that there are no financial encumbrances on title or other unexpected liens or charges. Further, if a company’s business involves intellectual property rights, such as copyright, trademarks and patents, the purchaser will want to ensure that the seller has taken appropriate steps to protect such rights.

A prospective purchaser will also want to ensure that the business is adequately insured. Accordingly, sellers should ensure that they have adequate insurance to cover their assets and comprehensive liability insurance appropriate for their industry.

Finally, sellers should be prepared to be up front with prospective purchasers and disclose any potential issues early in the process. Purchasers tend to be more concerned about surprises than they are about issues which have been disclosed.

Failure to properly plan and prepare for the purchaser’s due diligence review can significantly complicate the sales process and result in collapsed deals.   By involving their various business advisors (ie. lawyer, accountant, broker) early in the process, sellers can often ensure that their records and related business documents are in order, and that they will withstand the purchaser’s scrutiny of same!

Currently in British Columbia there is a two-step process to certify a bargaining unit. A union must first get 45% of workers at a job site to sign membership cards, and once that threshold is reached, workers must then restate their preference for a union through an additional vote. Because employees can often be pressured into signing union cards, without full understanding of the potential consequences of unionization, the current two-step system in British Columbia (which exists in most provinces) helps ensure that union certifications are based on the actual wishes of employees.

However, on April 6, 2022 (with a second reading on May 5), the Provincial NDP government introduced, Bill 10, the Labour Relations Code Amendment Act, 2022,  which proposes labour friendly changes to the Labour Relations Code. Among other changes, the Bill introduces a single-step (“card-check”) union certification system:

• If 55% or more of employees in a workplace indicate their intent to unionize by signing union membership cards, a union will be certified, and no further vote is required.
• If between 45% and 55% of employees sign union membership cards, a second step consisting of a secret ballot vote is still required for certification.

If the Bill is passed into law, in some scenarios, the second step of an additional secret vote will be eliminated. Therefore, employers can expect union campaigns to ramp up in the province, especially in sectors that have traditionally been harder to unionize.

Employers who feel at risk of unionization should seek legal advice.

If you have an existing Will, that’s a great start. However, as your life changes, so will your Estate Planning needs.

As a general rule of thumb, we recommend that client’s review their Wills every 3-5 years to ensure that it still reflects their wishes.  That said, here are a few of the triggers that should get you thinking about re-doing your Will:

• If you marry or start a family, you’ll want an estate plan that ensures your loved ones are taken care of after you are gone. A Will is vital when you have children. Minor children can be provided for through Trusts set up for their health, maintenance, welfare and education. Guardianship issues can also be addressed if something happens to both parents. Wouldn’t you rather choose who gets to raise and care for your children?
• A major life event such as a divorce, should also trigger a review of your current Estate Planning to ensure that it meets your current needs;
• As your net worth increases, proper Estate Planning becomes vital. You will need to address tax issues and discuss with your Lawyer and Accountant the best way to minimize the probate fees and taxes payable, in order to maximize your beneficiary’s inheritance;
• If you have adult children who are still dependent on you, you can make sure they have financial support for the rest of their lives by setting up a Trust. Whether this be for a disability, or otherwise;
• If you’re thinking of leaving a spouse (including a common law spouse) or child out of your Will, or giving them less than they might reasonably expect, they may decide to contest your Estate, which is allowed under current legislation. This could result in the Court changing your Will to give your spouse and/or child(ren) a greater share of your Estate than you would have liked. Be sure to consult with a Lawyer on this who will be able to discuss your options with you and create an Estate Plan designed to minimize these claims.

Those are just some of the reasons to review your Will. Reviewing and updating your Will gives you peace of mind that you have cared for your loved ones in the very best way you can. The last few years have been rife with change for most us as we all realize how fragile life is, and how very precious our loved ones are to us. Don’t leave your Estate Planning until it is too late.

Apologies are one of the things for which Canadians are known internationally. In Canada, “I’m sorry” is used even in situations where we carry no responsibility, or where others might view it as unwarranted. For example, two people to bump into one another and both apologize despite no real fault, intent or damage, but it keeps things pleasant and allows everyone to carry on without noteworthy altercation.

Apologies come in many shapes and sizes, but apologies serve a fundamental role in our society. Even a simple apology can convey remorse where time is limited or words are failing. In fact, apologies are so sacrosanct that most Canadian courts have endeavored to keep apologies out of determinations of fault in the legal context. In British Columbia, the Apology Act, SBC 2006, c 19, prevents apologies from constituting admissions of fault or liability in most, if not all, circumstances. The Act is designed to be broad, and it is designed to keep the legal system from overanalyzing and interfering with such an important aspect of our society. Even attempts to exclude apologies result in oddly formal definitions of what exactly an apology is, such as the definition in the Act:

“apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

It makes sense when you think about it. Sometimes apologies are so heartfelt and sincere that they carry far more weight and importance than any other type of relief that could be sought. At one extreme, claims might be carried through the courts solely because someone had not apologized. Other times, apologies are made more as a matter of empathy and regret of circumstances, rather than an intended admission of fault. In such cases, it would be unfair to hold someone to blame and could lead to come absurd results. It is also hard to imagine a Court ordered apology feeling like anything other than an empty obligation, and no doubt judges do not want to be ordering parties to “say it like they mean it”.

In short, if you are trying to prove fault or liability of another party, you are going to need more than an apology. But, if you are feeling the need, don’t let the specter of a legal claim prevent you from saying “I’m sorry”.

Whether a claim is being made for or against you, litigation is a complex and serious process. It is best to contact a litigation lawyer early, and prior to the commencement of a claim if possible, for assistance in weighing options and navigating the complexities of the legal system.

Developers have to deal with the requirements imposed by a municipality through the development permit process. These requirements can be onerous and time consuming, and sometimes appear to the developer as unreasonable or arbitrarily applied.

One land owner decided to push back against the denial of a development permit that the District of Squamish refused to issue. The land owner sought a declaration from the court that Squamish was required to issue the development permit in the case of 0742848 BC Ltd. v District of Squamish.

The Local Government Act permits a municipality to designate development permit areas (DPA) in an Official Community Plan (“OCP”) for a number of purposes. Developers commonly must obtain a development permit for the form and character of the development, but may also need a development permit relating to other issues like the protection of the natural environment or protection from hazardous conditions.

If a municipality designates a develop permit area, it must establish guidelines in the OCP setting out the objectives of the development permit and how the objectives will be addressed.

Squamish established a DPA in its OCP for the “protection of the natural environment, its ecosystems and biological diversity”. The guidelines established in the OCP relating to the DPA included to “minimize the visual and environmental impact of any development” and “to ensure that fish and wildlife conservation and protection of habitat are given priority over other values”.

The 0742848 BC Ltd. (“074”) owned a parcel of land that consisted of 78 acres which was included in the DPA set by Squamish. The Squamish River ran along the western boundary, with about 15 acres located to the west of a dike that ran through the property on a north-south alignment. 074 applied for a development permit to place a modular home on the land between the Squamish River and the dike. 074’s application met all zoning bylaw requirements.

Squamish refused to issue a development permit. The discussion of the councilors at the council meeting focused on the flood risk of permitting development on the western side of the dike, and not on the matters set out in the guidelines.

The Court found that the decision to not approve the issuance of the development permit was not based on the guidelines but on extraneous considerations outside the guidelines. The Court went on to find that even if the decision was based on the guidelines, the decision was unreasonable, even allowing for the considerable deference councils are provided when making a decision.

On that basis, the Court made an order that Squamish was required to issue the development permit.

Executors have many duties to the beneficiaries of an estate: they must act in good faith, to the standard of a reasonably competent person, they must keep an even hand between the beneficiaries, they must protect the assets, and they must make sure the taxes and debts are paid.

An executor also has the duty to communicate with the beneficiaries and to answer inquiries made of them by the beneficiaries.  Recently the Supreme Court of BC penalized an executor by making her personally pay some of the legal costs of the estate because the executor did not answer the inquiries of one of the beneficiaries.  There was distrust between the executor and her sister the beneficiary, and the lack of communication only exacerbated the distrust.

When choosing an executor, I advise clients to pick someone who gets things done, who is fair, and who is a good communicator.  The executor is entitled to hire a lawyer and an accountant to help them, so they don’t have to be able to do the legal and the tax parts of the job themselves, but they need to keep things moving in the estate, and they must be good at keeping the other beneficiaries informed.

Many of the estate disputes we see stem from lack of communication, first of all, from the parents to the children, and then after death, from the executor to the beneficiaries.

We are happy to help advise clients in their estate planning on how to best avoid disputes.

As an estate planning lawyer, one of the most common questions I hear is some variant of “what documents do I need to have in order to be prepared if something happens to me”? The answer to this, as usual, is “it depends”. However, there are 3 “main” documents a client should consider when making an estate plan.

The Will: this document is the core of an estate plan and most people are familiar with how it works. Taking effect only upon the death of the will-maker (testator), this document appoints an executor to act as trustee to ensure your debts are paid and your assets are disposed of in accordance with the terms of your will. Many details can complicate these arrangements: be aware of special clauses needed for disabled beneficiaries in particular as well as the risks BC’s legislation creates for blended families. It is straightforward to make a simple Will, it is equally easy to incorrectly make a complex Will.

The Power of Attorney: this document appoints an “attorney”, who in this use of the word is just a person who has been provided with authority to make decisions with respect to your finances. Managing your accounts, filing tax returns, and paying for your support using your funds are all common powers using this document. In particular, this document can take effect upon a loss of capacity (a “springing” power of attorney), or upon signing and continuously thereafter until revoked (an “enduring” power of attorney). There are multiple benefits and drawbacks to each of the springing vs enduring versions and it is recommended you receive experienced legal advice prior to deciding which will be right for you.

The Representation Agreement: this document is a comprehensive health care authority assignment aimed at the duration of a person’s medical condition and their treatment. Common provisions include approving or refusing medical procedures and treatments, hiring care providers, and making decisions with respect to assisted living arrangements. The Representation Agreement is much more than a method of planning for life-support decisions, however many clients understandably focus upon this aspect. An experienced lawyer will ensure consideration is paid to all areas of the document to provide for your well-being during vulnerable times when you may not be able to speak for yourself.

Unfortunately, many times we encounter situations where a Power of Attorney or Representation Agreement is needed but has not been created and the person has lost capacity to make one. In this instance, the alternative is to bring an application of British Columbia Supreme Court for appointment of a “committee”. This can be a lengthy and expensive procedure which should be considered a last resort. However, when needed, experienced estate lawyers can navigate the process skillfully to ensure clients have an appointed committee for their care as quickly as possible.

Rather than waiting until there is a pressing need for these documents, which results in enormous stress upon clients and their families, I recommend making estate planning arrangements without the pressure of urgency which can impair capacity and may lead to unexpected difficulties. Contacting an estate planning lawyer before there appears to be no immediate need is always the best course of action.

Pushor Mitchell LLP is pleased to have acted as legal counsel to GeneTether Therapeutics Inc. in connection with its initial public offering of Units.  In connection with its IPO, GeneTether issued a total of 7,500,000 Units at a price of $0.60 per Unit for aggregate gross proceeds $4,500,000. GeneTether Therapeutics Inc.’s common shares are listed for trading on the Canadian Securities Exchange under the symbol “GTTX”.

Founded by EGB Ventures founder and managing partner, William J. Garner, M.D., and veteran gene editing researcher, R. Geoffrey Sargent, Ph.D., GeneTether is focused on developing its disruptive proprietary platform technology to significantly increase the efficiency of DNA insertion into the genome for gene correction and complementation strategies. The Company’s wholly-owned platform technology uses a proprietary method to “tether” donor DNA templates to the genome editing complex, making the template readily available for use during the genome editing repair stage. The Company is leveraging its platform technology to develop curative therapies for the treatment of rare genetic diseases. GeneTether’s proof of concept study demonstrated an approximately 7x higher gene editing efficiency as compared to the same gene editing payload without application of GeneTether’s technology.

The Pushor Mitchell team was led by Keith Inman and included assistance from Rebecca Dickson.

An old legal sage once pointed out the obvious that a marriage can end in only one of two ways:  Divorce or death.  The sage also noted how a person goes through similar emotional/psychological stages when advised they are dying, or being divorced.  The sage mentioned Dr. Kubler-Ross as the sources of the stages of dying, and noted the similarities with divorce.

Dr. Kubler-Ross had treated dying patients for a long time and noticed how many of them go through similar emotional/psychological stages when coming to grips with their inevitable outcomes.  In her book “On Death and Dying” written in 1969, Dr. Kubler-Ross noted the stages as generally denial, anger, bargaining, depression, and finally acceptance.

When advised of death/divorce, people often first deny it’s happening:  “Do the tests over again, there’s a mistake…” or “…my love would never leave me, they’ll get over it and be back soon…”.  But, unfortunately, the second round of tests show the same results as the first, and the “love” doesn’t return.

Anger often sets in after the diagnoses/news becomes undeniable.  The person may irrationally lash out at friends and family, or blame others for their sad predicament.

When the anger starts to subside, it can be replaced with bargaining.  That is, the person starts thinking of ways to postpone the inevitable.  The dying may try special diets or seek multiple opinions in the hope of prolonging life while the divorcing may make promises of changes for the good to appease the leaving spouse in the hopes they will return.  But the inevitable is not postponed, and there is no return.

Depression, not surprisingly, develops as they start to realize the practicality of their situations.  Sadness and regrets are prevalent at this stage, and some will withdraw into themselves and become distant and lethargic.  A nostalgic melancholy can set in.

Finally, it’s realized there is no ‘magic cure’ coming; there will never be a reunification.  The dying person accepts that circumstances can’t be changed, and hopefully starts to live each day thereafter to its fullest with appreciation.  The divorcing person starts to move forward with their new life.  Both the dying and divorcing lose something that can’t be replaced – a life; a past relationship.

But why is any of this important in family law?

Because in family law, whether in court or not, we first try to negotiate a resolution.  When negotiating (or attending court) it is good practice to consider the other person’s emotional/psychological state – it may help to explain why they act or react as they do, and gives some direction on how to best approach them.  The best negotiations occur when both parties have reached ‘acceptance’, but some people do not progress through all the stages, and some may skip stages.  How fast or slow you proceed through the stages, or if you proceed at all, is dictated to some degree by your own inherent emotional/psychological characteristics and fortitude.  Recognizing the stages may help you better understand the other person’s actions or inactions, and negotiate a resolution.

If you require assistance with a family law situation, please contact one of the lawyers who practice family law at Pushor Mitchell LLP.

Additional considerations arise when doing estate planning for indigenous clients.

Members of a band or nation hold “ownership” of land by a certificate of possession which gives them the right to use and lease for their own benefit the land for which they hold the certificate of possession.  Only a member of a particular nation or band can hold a certificate of possession for lands in that nation or band’s reserve.  A certificate of possession cannot be sold or transferred to anyone who is not a member of that nation or band.  Typically, if a member wants to transfer an interest in their land to a person who is not a member of the nation or band, they will do so by granting a registered lease to that person.

To effectively pass the right to the use and benefit of the land to their heirs, a Will for a member of that nation or band must leave the certificate of possession to a member of that nation or band.  A Will that tries to do otherwise will not be approved by the Minister of Aboriginal Affairs and Northern Development.

Under the Indian Act, Wills for indigenous people must still be approved by the Minister before they can be administered.  The Minister has the right to declare the Will void in whole or in part, if they think there was duress or lack of testamentary capacity, or if the Will did not provide for the deceased’s spouse or children, or if the Will tries to dispose of land in a manner contrary to the Indian Act.  If the Will is declared void, the provisions of the Indian Act dealing with intestacy will apply.

Sometimes the spouse of the member is not a member of the nation or band, so consideration must be given to how to protect that spouse’s right to remain on the lands held by the member after the death of the member.  It might be done by leaving the certificate of possession to a member of the nation or band and directing that the interest is subject to registering a lease in favour of the spouse for the spouse’s lifetime or some other period of time.  There is no community of real or personal property situated on a reserve.

An indigenous person who lives off the reserve and does not have a certificate of possession on the reserve may have his or her estate dealt with through the usual probate process in the Supreme Court.

One of the most formidable tools available to a spouse who is separating from their partner is an interim restraining order from the court if there is a risk that their former partner has disposed (or threatened to dispose) of family property, or otherwise deal with that property in a manner that could adversely affect their rights and until such time it can be properly valued and equitably divided.

As a rule only legally married couples, or common law spouses – that is those individuals who have been in a marriage-like relationship for no less than two years – may seek an order under s.91 of the Family Law Act for injunctive relief.

Strategically, restraining orders are ordinarily sought in the early stages of litigation and are often presented to the court without notice to the other spouse so as to limit the potential for further cause issue with family assets had the perpetrating spouse received advance notice.

How do I know if I need a restraining order against my spouse?

While the range of circumstances that may warrant a restraining order are theoretically limitless, some of the more conventional grounds for seeking this type of relief arises in situations where a spouse:

• Solely controls the family bank account(s) and/or investment account(s);
• Has unilaterally withdrawn funds from a joint bank account(s); diverted funds to a new account, or conducted other unusual financial transactions;
• Operates a family business(es), or is the principal income earner;
• Retains funds personally from a family business, or investment income for personal gain;
• Has access to substantial credit facilities to fund their lifestyle, or there is a risk of accessing credit to disproportionately increase family debt;
• Is under reporting their personal or business income, or undervaluing assets;
• Is non-communicative or surreptitious in dealing with the family finances and assets generally;
• Threatened bankruptcy;
• Has made non-arm’s length transactions to friends or family so as to defeat claim by their spouse;
• Has sold (or threatened to sell) assets of value, including vehicles, art, jewelry, and other personal property;
• Has assets outside the province or country that pose risk to recovery, or otherwise defeat a family property claim.

Restraining Orders Against a Business

Apart from obtaining a restraining order to protect family property, in certain situations it may be prudent to seek a financial restraining order against a company or business venture controlled by a spouse if there is risk that assets may be sold, dissipated, or they may take actions “outside the normal course of business” that serve to either devalue or otherwise obstruct a claim.  This type of relief is governed by Rule 12 of the Supreme Court Family Rules.

Potential orders against a spouse who has a controlling interest in a company may include:

• Limiting them from withdrawing funds, or fixing the amount of funds that may be available for personal use;
• Confining the management and usage of company funds for normal business operations exclusively;
• A general prohibition on disposal of any company assets, or material changes to the nature of the business and/or operations generally;
• Restrictions on voting rights;
• Mandatory reporting requirements to ensure compliance.

The essence of a financial restraining order is to tightly govern the conduct of a spouse in relation to management of a family business. While these types of orders are on its face prejudicial the court will take care to ensure the viability of that business as a going concern so that it may continue to carry out regular commercial functions such as remaining sufficiently capitalized to service customers, meet payroll and debt obligations, and conduct other activities germane to its core business.

Apart from the obvious benefits a restraining order provides, it can also deliver strategic advantages in negotiations and expedite settlement. Indeed, a spouse who is subject to a court ordered restraining order may soon discover a renewed sense of motivation to bargain in good faith and seek final settlement with their spouse.

When exercised properly, a property or financial restraining order can be a potent instrument that immediately “levels-the-playing field”.

Whether a restraining order is appropriate measure requires a careful analysis of the party’s circumstances, a history of their relationship, and relevant conduct post-separation. The process for obtaining injunctive relief can be procedurally complex and requires technical precision. A spouse who believes that their rights may be at risk would be well served to seek legal advice with respect to their interests.

The newly proposed draft Underused Housing Tax Act (“UHTA”) is the first federal legislation aimed at countering real estate speculation and vacancy rates in Canadian real estate.  The underused housing tax (“UHT”) has many similarities to British Columbia’s Speculation and Vacancy Tax; however, the UHT is aimed at vacant homes owned by foreign owners and does not apply to owners who are Canadian citizens or permanent residents — whether or not they reside in Canada.

It is proposed that the UHT will consist of an annual tax of 1% of a residential property’s taxable value unless exemptions apply. Canadian citizens or permanent residents, including personal representatives of a deceased individual, would be exempt unless they hold their interest through a partnership or trust. All non-exempt owners of residential property on December 31 of a tax year will be required to file a declaration by April 30 of the following year. If the legislation receives final approval, the tax will apply starting January 1, 2022 with the first declaration due April 30, 2023, subject to parliamentary amendments.

This is provided as information only and should not be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation.

Pink Shirt Day is an anti-bullying campaign observed on the last Wednesday of every February, and this year it falls on February 23rd. On this day, individuals are reminded to act with kindness and empathy and speak up if they see someone bullied. The goals of Pink Shirt Day align with the legal obligations placed on employers to prevent bullying and harassment in the workplace.

Bullying and harassment in the workplace exists on a spectrum. It can range from unwanted comments to verbal and physical assault. Some employers and employees are surprised to learn that WorkSafeBC requires employers in British Columbia to have a bullying and harassment policy. The policy must – at a minimum – Include the following:

• How and when investigations will be conducted;
• What will be included in the investigation;
• The roles and responsibilities of employers, supervisors, workers, and others such as investigators, witnesses, or union representatives;
• Follow-up to the investigation (e.g., description of corrective actions, time frame, dealing with adverse symptoms, etc.); and
• Record-keeping requirements.

Importantly, employers are prohibited from retaliating against an employee for raising a bona fide bullying and harassment complaint.

Apart from breaches of a bullying and harassment policy, bullying and harassment may also constitute discrimination contrary to the British Columbia Human Rights Code if the bullying and harassment is related to a protected ground such as age, sex, sexual orientation, gender identity or expression, race, colour, physical disability, mental disability or religion. Further, employers may be held liable for the actions of their employees and the bullying and harassment may result in a constructive dismissal of employment. With respect to the former, an employer may be responsible for the actions of its employee in certain circumstances even if management was not involved in the bullying or harassment. With respect to the latter, allegations of constructive dismissal may lead to claims for severance and aggravated and punitive damages.

Bullying and harassment is not just a moral issue: it is a legal issue. Employees who engage in bullying and harassment and employers who do not take the appropriate steps to prevent it run the risk on being on the wrong side of the law.

Our ten most popular Pushor Mitchell articles in 2021:

1. BC’s New Land Owner Transparency Registry – What Do You Have To Do To Comply? by Paul Tonita

2. A Long Time Coming: Two Important Changes to Divorce Act by Leneigh Bodset

3. COVID-19 Vaccines in the Workplace by Colin Edstrom

4. Can A Relationship Conducted Virtually be a Marriage-like Relationship? by Leneigh Bodset

5. Safety Deposit Boxes and Your Estate by Vanessa DeDominicis

6. Two New Paid Leaves for Employees: Temporary COVID Leave and Permanent Sick Leave by Colin Edstrom

7. The Elusory Nature of the “Marriage- Like Relationship” by Leneigh Bodset

8. Big Changes Coming Soon to Provincial Court Family Rules by Patrick Gaffney

9. Court Finds Notice of Termination of Contract to Subcontractors Not Required to Start Lien Filing Period by Mark Danielson

10. Tips For Executors by Vanessa DeDominicis

In IRP (Immediate Roadside Prohibition) cases the officer is required to promptly forward to the Superintendent of Motor Vehicles a sworn or solemnly affirmed report in the form established by the Superintendent.

In Kuzmanovic v. The Superintendent of Motor Vehicles, 2021 BCCA 83, the B.C. Court of Appeal addressed the issue of whether a peace officer can fail to properly swear or affirm a report and then correct the issue after the fact and before the review hearing.

At paras. 23-27 the Court of Appeal set out the relevant circumstances as follows:

[23]      The Report included a preamble that stated, “I, Cst. Gallagher, swear or sol[e]mnly affirm that the contents of this report are true.” The Report included a jurat to be executed by the investigating peace officer and a commissioner for taking affidavits for British Columbia. The officer signed the jurat, but a commissioner did not.

[24]      On March 9, 2019, before Mr. Kuzmanovic applied for a review, the Superintendent faxed an urgent request to the New Westminster Police Department advising the jurat on the Report was incomplete.

[25]      In response, the officer forwarded a “Report to Superintendent – Supplemental to File”, solemnly affirmed by the officer on March 13, 2019 (the “Supplemental Report”).

[26]      The Supplemental Report said:

IRP PACKAGE DID NOT HAVE A SIGNATURE OF A COMMISSIONER, PRIME NARRATIVE TEMPLATE DID NOT INDICATE I SHOWED THE DRIVER THE 2ND TEST RESULTS HOWEVER I DID SHOW HIM. VI CHECK BOX WAS NOT TICKED DISPLAYING VEHICLE WAS IMPOUNDED WHEN IN FACT IT WAS.

The Supplemental Report provided that the “IRP/VI PACKAGE” was attached. It also stated the original document was attached and the Supplemental Report “consists of 15 pages including this page”. The officer solemnly affirmed the contents of the Supplemental Report and the enclosures, which included the same package of documents he had faxed to the Superintendent on March 9, 2019.

[27]      The officer’s Occurrence Report provided the information summarized above as to the officer’s dealings with Mr. Kuzmanovic, but with the added information that the first ASD test at 2349 hours showed the ASD temperature was “in range”, and the result was a “warn”. The officer conducted the second ASD test at 2354 hours, the ASD temperature was “in range”, and the result was a “warn”.

Mr. Kuzmanovic’s counsel argued that the adjudicator’s finding that the Supplemental Report incorporated by reference the Report was unreasonable, among other things. In response, the Court of Appeal held that Supplemental Reports are not per se improper with the upshot being that if a Supplemental Report is properly sworn it can incorporate a Report that was not properly sworn thereby satisfying the requirements of s. 215.47(d) of the Motor Vehicle Act.

The key takeaway from this Decision is that one must scrutinize the report that is submitted to the Superintendent and confirm that it has been properly sworn or affirmed.

British Columbia employees are entitled to five paid days and three unpaid days of sick leave as of January 1, 2022. This new leave – referred to in the British Columbia Employment Standards Act as “Injury and Illness Leave” – applies to all eligible employees in British Columbia, including part-time, casual and seasonal employees.

To be eligible for the new leave, employees must be employed for at least 90 days and not otherwise excluded from the operation of the Employment Standards Act. A day of paid sick leave is calculated by adding all wages earned during the previous thirty days of employment and dividing that number by the number of days worked. Employees are not entitled to partial sick days.

The new sick leave provision applies to both unionized and non-unionized workplaces. The new provision automatically applies to collective agreements that do not currently provide for paid sick leave or provide for less than what is required by the Employment Standards Act.

Employers must also remember that sick leave protections may extend beyond the five days in the Employment Standards Act. For example, the British Columbia Human Rights Code prohibits employers from discriminating against employees by reason of, amongst other things, physical and mental disability. Employees who exhaust their injury or illness leave pursuant to the Employment Standards Act may still have additional job protections pursuant to the Human Rights Code.

The amendment to the Employment Standards Act follows the decision of other governments to increase paid sick leave entitlements, including the federal government which recently passed a bill to provide federally regulated employees with ten days of paid sick leave per year. The federal government has also announced that it intends to convene the provinces and territories in early 2022 to develop a national action plan to legislate paid sick leave for all workers across the country, notwithstanding that employment standards laws are mostly provincial jurisdiction. It remains to be seen whether the British Columbia government will make further increases to sick leave entitlement.

The New Year is a great time to review your Will. If you have an existing Will, that’s a great start. However, as your life changes, so will your Estate Planning needs.  Here are a few of the triggers that should get you thinking about re-doing your Will:

• If you marry or start a family, you’ll want an estate plan that ensures your loved ones are taken care of after you are gone. A Will is vital when you have children. Minor children can be provided for through Trusts set up for their health, maintenance, welfare and education. Guardianship issues can also be addressed if something happens to both parents. Wouldn’t you rather choose who gets to raise and care for your children?;
• A major life event such as a divorce, should also trigger a review of your current Estate Planning to ensure that it meets your current needs;
• As your net worth increases, proper Estate Planning becomes vital. You will need to address tax issues and discuss with your Lawyer and Accountant the best way to minimize the probate fees and taxes payable, in order to maximize your beneficiary’s inheritance;
• If you have adult children who are still dependent on you, you can make sure they have financial support for the rest of their lives by setting up a Trust. Whether this be for a disability, or otherwise;
• If you’re thinking of leaving a spouse (including a common law spouse) or child out of your Will, or giving them less than they might reasonably expect, they may decide to contest your Estate, which is allowed under current legislation. This could result in the Court changing your Will to give your spouse and/or child(ren) a greater share of your Estate than you would have liked. Be sure to consult with a Lawyer on this who will be able to discuss your options with you and create an Estate Plan designed to minimize these claims.

Those are just some of the reasons to review your Will. Reviewing and updating your Will gives you peace of mind that you have cared for your loved ones in the very best way you can!

This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information real estate matters or 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.

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!

Over 80% of businesses around the world are family-owned businesses. Specifically, Canada’s family businesses employ 4.7 million full-time employees, and the total annual sales of Canadian family businesses is $1.3 trillion.

It is thus very clear that Canadian family-owned businesses are a force to be reckoned with. So how does a family business become such a successful empire? One of the keys to many of these business’ success stories is a good governance system. Good governance will help any organization find its direction and identity. An excellent governance tool for a family business, large or small, is having a family philanthropic foundation.

A family philanthropic foundation is an effective way to bring all family members together to work towards a shared objective. They all have the same goal and must work as a team to create results for the common good, not just for financial gain (where we all know that the green-eyed monster can rear its ugly head). The family can give back to a community that has supported their success over the years through time or money or community programs that the family business can institute. Not only is a family philanthropic foundation a good way to give back to the community that the family business gained its success in, but it is also an incredible way for the next generation in line for the family business to learn to work together at a very young age. It will allow the current and younger generation to work together to better understand the business and the bottom line.

Effective governance is essentially wealth preservation. This type of governance will encourage collaborative decision-making among the family members, possibly across several generations of family members where financial skills and practices can be very different. A philanthropic goal for a family business will effectively unify their values and vision and provide the glue that will keep the family members focused and excited for the future. It will also encourage the family to address succession planning, business structuring and the family inheritance plan.

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.comor on 250-869-1140. 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.

Ever since the Family Law Act S.B.C. 2011, c. 25 came into force in British Columbia, the definition and determination of which relationships are considered to be “marriage-like” and therefore meeting the definition of “spouses” as set out in the act has become a high stakes endeavor.

The question is an important one because for those couples that are unmarried, if they are found to be living in a marriage-like relationship for a continuous two-year period as it is defined in section 3(1) of the Family Law Act, it allows standing for claims to property division and spousal support.

Meanwhile, the caselaw has not necessarily served to clarify the criteria or made it any easier for lawyers who practice family law to provide advice. Although many cases do provide a list of factors, the court is also clear in the cases that a “holistic” approach needs to be considered and it is not simply a matter of going through a checklist.

One would think that the most important factor would be cohabitation but that factor is clearly not determinative or even necessary. In the case Dey v. Blackett 2018 BCSC 244 the judge found that the parties lived in the same residence for more than two years, they shared sleeping arrangements and had a sexual relationship, they returned to the same residence on a daily basis, and carried out domestic duties together. They represented themselves to those they knew as a romantically involved couple. However, there was a marked absence of financial interdependence that the court found to be indicative of a lack of intention to live in a “marriage-like relationship” so in the end the judge did not find that they were spouses and therefore able to make claims under the Act to property division or support.

In contrast, a recent very interesting case which has garnered much attention in BC is Han v. Dorje 2021 BCSC 939. The facts of the case are that the parties never lived physically together although the Claimant, Ms. Han alleges that she has a child with Mr. Dorje arising from a sexual assault which she alleges occurred in October of 2017. Mr. Dorje is the high lama of the Karma Kagyu School of Tibetan Buddhism and he travels the world teaching Tibetan Buddhists Dharma and hosting ceremonies in which Buddhists express their gratitude and devotion to Buddha.

Master Elwood in this case goes through the various cases on unmarried couples living in marriage like relationships and determines that while the facts of this case do not fit into most of the factors, he confirms that the court should not consider the factors on a checklist basis and should look at it holistically. He quotes from several cases throughout the country, including a 2003 Saskatchewan: Yikiwchuk v. Oaks 2003 SK QB 124 where Mr. Justice Myers states

“It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain.”

The Master goes on to quote from a BC Court of Appeal case, Weber v. Leclerc, 2015 BCCA 492 which states at paragraph 23:

[23] The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”.

While the Master did not decide at this stage that the relationship was “marriage-like” he certainly indicated that it may be a possibility and left the door open procedurally for Ms. Han to pursue her claims.

In the end, which relationships are marriage-like? That depends on your unique circumstances and it is essentially impossible to predict with certainty which creates risk for the parties.

This Article was originally published in the October 2021 issue of BarTalk

The very conservative government of Ontario has introduced a bill called the Working for Workers Act which, among other changes, would prohibit restrictive covenant clauses in certain employment contracts and would require all employers with 25 or more employees to have a written policy designed to allow employees freedom to disconnect from the workplace for a certain number of hours per day. The particulars of the limits of the “right to disconnect” have yet to been announced.

Restrictive covenants are commonly used, particularly with managerial and sales employees, to provide some protection to employers from employees competing with the employer during their employment and after it comes to an end. The Ontario legislation would only apply to strike any agreements attempting to prohibit competition after the employment relationship comes to an end. Agreements regarding confidentiality of information and non-solicitation of customers and employees may not be affected by this legislation. The proposed legislation exempts restrictive covenants negotiated on the sale of a business. In other words, if one of the owners of a business as a term of the sale, is contracted to stay on, a clause prohibiting him or her from competing with the business after their employment comes to an end should be enforceable (if it is not unreasonable). It is not clear whether the legislation will render existing employments agreements with restrictive covenants unenforceable.

The stated intent of the legislation is to make Ontario a friendlier place to work. This seems to be a result, in part, of the hangover of COVID-19 and the shortage of workers in certain industries. It would not be surprising to see other provinces enact similar legislation.

Since the legalization of Cannabis here in Canada in October as of 2018, we have seen an influx of cannabis-based businesses looking to protect their intellectual property rights.

Intellectual property rights can take various forms, but specifically in relation to the cannabis industry there are a number of ways cannabis-based businesses can protect themselves, including protecting their intellectual property in the form of patents, plant breeders rights, trademarks (which include brand names and trade names) and trade secrets.

A patent provides legal protection for an invention or process that is novel, non-obvious and clearly defined. A trademark is a symbol, word, slogan or logo used to distinguish a brand or product from others. Plant breeders’ rights allow plant breeders to protect new varieties of plants in the same way that an inventor protects an invention with a patent.

The value of a properly protected and registered trademark is huge. A trademark provides your company with a competitive edge by differentiating your goods and services from those of your competitors. A trademark provides your customers with a memorable way to identify your goods and services. I would urge cannabis-based businesses to secure their trademarks now, before the Trademark’s Register gets crowded with an influx of these types of applications.

Securing trademarks is extremely important. Consumers trust and recognize brand names and trademarks. Good trademarks increase the value and goodwill of a company substantially. When a company is sold, a registered trademark can significantly increase the value of the business. Companies purchase other companies based on their know-how, reputation, and trademarks. Big name brands are in demand, and companies are willing to pay accordingly for the instant recognition and market access of recognized trademarks.

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 intellectual property rights, and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com. Vanessa is a Registered Canadian and US Trademark Agent at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you!

As I have written about earlier, the Protection of Public Participation Act (the “PPPA”) is aimed at combating strategy lawsuits against public participation (“SLAPPs”) and to guard against the vulnerability of the legal system to SLAPPs being used to censor public opinion, intimidate people and silence critics. I have previously written about the practical application of  the PPPA in Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 (CanLII).

The recent decision of Peterson v Deck, 2021 BCSC 1670 (CanLII) provides further insight on the practical application of the PPPA to a more common source of defamation actions: online complaints.

In Peterson, the plaintiff was a plastic surgeon who had performed a breast augmentation surgery for the defendant. The defendant, unhappy with her results, posted several negative reviews on her personal website and through Google Reviews. The plaintiff noticed these reviews and asked that they be taken down and the defendant refused. The plaintiff commenced a defamation action and the defendant defended, in part, by relying on the PPPA.

The defendant’s complaints focused on alleged lack of professionalism in the plaintiff and his office’s dealings with her, failure to provide adequate consultation, surgical outcomes falling below ordinary standards and what was represented as could be expected and encouraging the public to not make use of the plaintiff’s services.

In her defense, the defendant invoked s. 4 of the PPPA, which the Court noted:

“….creates a pre-trial procedure that allows a defendant to apply to the court for an order dismissing a claim arising out of an expression of public interest.” The Court further noted that the stated intention in enacting the PPPA “…was to protect public participation in debates of the issues of the day and prevent strategic lawsuits brought by the wealthy and powerful to shut down public criticism…”

The Court engaged in a similar analysis to that employed in Lyncaster v Metro Vancouver Kink Society. In Peterson, the tasks the Court set itself to where to:

1. first, determine whether the defendant satisfied the court that her statements related to a matter of public interest. If not, the PPPA defence was not made out;
2. if the first stage was satisfied, the Court would then decide whether the defamation claim and defence relied upon had any merit; and
3. as its last step, the Court would balance whether the public interest was weighed in favour of the expressions of the defendant or the prejudice that might be suffered by the plaintiff.

The Court did note that the intention of the PPPA was to potentially bring resolve to defamation claims early rather than when both parties had put the merits of their cases to trial, as was the case before the Court.

The Court found that whether a matter is in the public interest was a concept that deserved liberal interpretation. Having so found, the Court found that a consumer review of a plastic surgeon’s skills was within the ambit of what was a public interest. More generally, the Court also found that that consumer protection has always been the subject of protection of the public interest in defamation cases. The Court found that a defined segment of society would have a genuine interest in receiving information about a surgical procedure they were considering and, as such, the first stage was met.

The Court found that the defamation claim had substantial merit whereas the ordinary defences to defamation did not. As a result, the Court found that the defendant’s PPPA defence failed on the second stage. The Court also found that, while it was alive to the concern of the chilling effect judicial scrutiny of online reviews may have, online platforms were not a carte blanche to say whatever a person may wish without consequence. The Court weighed the impugned statements and found the prejudice that might be suffered by the plaintiff outweighed the public interest in the protection of the defendant’s statements and, as such, the PPPA defence also failed on the third stage.

More generally, the Court provided a thorough review of general defamation principles starting first with the legal framework of defamation which required the plaintiff to prima facie prove that the impugned words:

1. are defamatory in the sense that they are capable of lowering the plaintiff’s reputation in the eyes of a reasonable person;
2. refer to the plaintiff; and
3. were published to at least one person.

The Court reiterated that whether words might be found to be defamatory can be based on their literal meaning, their meaning as revealed by context or the inferred meaning or impression. It went on to find that:

“The court may take into consideration all of the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published, and the manner in which they were presented…”

The Court had little difficulty finding the impugned statements were defamatory. It found that “Professionals may be defamed by comments that question or impugn their qualifications, knowledge, skill, capacity, judgment, or efficiency. Comments suggesting that a medical practitioner is incompetent, unqualified, or guilty of discreditable conduct in his or her profession are defamatory…” It also found that there were several defamatory meanings to be drawn from or contained within the defendant’s impugned words.

The Court had little difficulty finding that the defendant’s words referred to the plaintiff; she referred to him by name and vocation. The Court was also able to readily infer the defendant’s posts had been read, even in the absence of proof given the method of publication and other surrounding circumstances.

The Court noted that justification or truth is a defence to defamation claim. The impudent words, however, were peppered with opinion that could not fall within the ambit of matters which are objectively true in fact or not. There were also statements of fact which the Court found were false statements. As a result, many aspects of the defendant’s statements were found to be outside the defence of truth.

The Court also noted that fair comment is defence to a defamation claim noting that “It does not cover defamatory statements of fact that are untrue. A fair comment defence cannot, as a matter of law, expunge the unjustified defamatory statements of fact noted above. It may, however, preclude liability for some of the defendant’s prima facie defamatory opinions.” The Court further noticed the onus is on a defendant to establish the defence of fair comment.

The Court noted that:

“The publication of negative and unflattering remarks about a plaintiff, if honestly held, based on fact, not actuated by malice, and in respect of matters of public interest, are considered fair comment and not actionable…” and that “…the facts must be sufficiently stated or otherwise known to the reader, so that the reader is able to make up his or her own mind on the merits of the comment. The comment must be presented as an expression of subjective opinion, not an assertion of objective fact…”

While the defendant did present a number of facts leading to her opinion, the opinion she presented to the public was predicated, at least in part, on false facts and misrepresenting or omitting critical facts which would help a reader evaluate and form their own opinion on the plaintiff and his conduct.

In the result, the Court found that defamation had been made out and that all of the impugned statements were not defensible under the PPPA or at law. The Court went on to find that damages had to be assessed based on the following objectives:

1. to act as a consolation to the plaintiff for the distress suffered as a result of the defamation;
2. to repair the damage to the plaintiff’s reputation; and
3. to vindicate the plaintiff or his business reputation.

The Court awarded general damages of $30,000 and made an injunctive order that the defendant remove her defamatory posts and not re-post them.

Peterson v Deck is a reminder that online reviews can and do attract significant damages. The PPPA does not provide protection for any critical review that may have some component of public interest. An opinion intertwined with incorrect and misrepresented fact is not protected from potential defamation claims. That said, a person should not be discouraged from sharing a review so long as it is grounded in fact.

Please note that since the publication of this article, the government of British Columbia has extended the filing deadline for pre-existing owners to November 30, 2022.

There is a new publicly searchable registry in British Columbia – the Land Owner Transparency Registry. This Registry has been around for almost a year, but there is an upcoming deadline that relevant corporations, trusts and partnerships should be aware of. A relevant corporation, trust or partnership that owns land in British Columbia must complete a Transparency Report by November 30, 2021. The Report must be filed by a legal professional¹ and will include information about the beneficial individual owners of the land.

Below, we provide answers to some commonly asked questions about the Land Owner Transparency Registry requirements.

What is the Land Owner Transparency Registry?

The Land Owner Transparency Registry is a new publicly searchable registry in British Columbia. It was created to combat money laundering and to end hidden ownership of land in the province. The Registry includes information about the beneficial individual owners of the land collected through Transparency Declarations and Reports.

When is a Transparency Registry filing required?

There are two situations where a Transparency Registry filing is required.

If a new interest in land is registered:

A Declaration (and Report, if applicable) is required every time a new interest in land is registered.

The definition of an “interest in land” includes:

• fee simple ownership;
• a life estate; and
• a lease for a term of more than 10 years.

This requirement ensures that the Transparency Registry will always contain up to date information about the beneficial owners of land in British Columbia.

If a “reporting body” has an existing interest in land:

All “reporting bodies” with an interest in land acquired before November 30, 2020 must file a Transparency Report prior to November 30, 2021.

The definition of “reporting body” includes:

• corporations (including limited liability companies, incorporated associations and societies);
• partnerships (including general partnerships, limited partnerships, limited liability partnerships and professional partnerships); and
• trusts (including express trusts and bare trusts);

and excludes many specific entities such as:

• public companies;
• strata corporations;
• real estate investment trusts;
• testamentary trusts;
• charitable trusts; and
• alter ego and joint partner trusts.

These Reports allow information about the beneficial owners of land to be captured for interests in land that existed prior to the introduction of the Transparency Registry in 2020.

What has to be filed?

There are two documents that may be involved in a Transparency Registry filing:

1.   A Transparency Declaration
2.   A Transparency Report

A Transparency Declaration is short, and simply indicates whether the interest in land is being registered to a “reporting body”.

A Transparency Report is required when the interest in land is registered to a “reporting body”. It includes information about the individuals who are behind the reporting body that benefit from the property interest.

How to get started

Transparency Declarations and Reports are filed through myLTSA, and must be submitted by a legal professional. The deadline for corporations, trusts and partnerships with existing interests in land to comply is November 30, 2021. Pushor Mitchell is happy to assist you in your efforts to do this. For more information, please contact Paul Tonita at tonita@pushormitchell.com or Rebecca Dickson at dickson@pushormitchell.com.

¹LOTR Resources

Paul Tonita is a solicitor practicing in the areas of business law, real estate, estate planning and estate administration.  His business experience includes assisting clients right from the beginning by discussing the different business structures, incorporating, buying and selling businesses, assisting with lending or financing needs, drafting and advising on contracts, and providing general advice to business owners.

Rebecca Dickson is an Articled Student at Pushor Mitchell. She completed law school at Thompson Rivers University in 2021, and is happy to have settled in Kelowna upon graduation.

The Federal Government recently passed legislation to create a new annual federal statutory holiday on September 30^th.  Named the National Day for Truth and Reconciliation, the statutory holiday was created as a step in the reconciliation process and in response to call to action number 80 of the Truth and Reconciliation Commission of Canada. According to the Government of Canada website, the National Day for Truth and Reconciliation “provides an opportunity to recognize and commemorate the tragic history and ongoing legacy of residential schools, and to honour their survivors, their families and communities.”

The National Day for Truth and Reconciliation is a paid federal holiday. It only applies to employers and employees subject to the Canada Labour Code, such as banks, radio and television broadcasting, air transportation, first Nations band councils, crown corporations, and road transportation services, including trucks and buses, that cross provincial or international borders. Employees are entitled to paid time off similar to other general holidays like Labour Day or Christmas Day. While the new statutory holiday does not apply to provincially regulated organizations (i.e., those governed by provincial employment standards legislation like the British Columbia Employment Standards Act), organizations should be cognizant that banks will be closed on September 30^th and plan accordingly. In addition, some provincially regulated employers, like Pushor Mitchell LLP, will voluntarily close on September 30^th to honour the victims and survivors of residential schools.

The Builders Lien Act, S.B.C. 1997, c. 45 (the “BLA”) establishes mandatory deadlines for the filing of builders liens against title to land in British Columbia. One of the triggers for the commencement of the lien filing period is termination of the “head contract” made between the owner and the “head contractor” for an improvement (that is, a contractor who is engaged to do all or substantially all the work respecting an improvement). If a claim of lien is not filed before the expiry of 45 days from the date of termination of the head contract, then lien is extinguished.

Until recently, the question of whether notice of the termination of the head contract is required to trigger commencement of the lien filing period was unresolved. The BLA does not expressly state that such notice is required, although notice was often given to preclude any arguments about whether the lien filing period had started.

In Hans Demolition & Excavating Ltd. v. Green Oak Development (West 7^th) Corp., 2021 BCSC 1472 (“Hans Demolition”), the Supreme Court of British Columbia recently considered whether notice of termination is required to trigger the start of the lien filing period, and the answer is “no”.

In Hans Demolition, the owner terminated the head contract on September 1, 2016. The lien claimant (a subcontractor) did not file its claim of lien until February 9, 2017. The owner argued that the subcontractor’s lien was invalid because it was not filed within 45 days of the head contract being terminated. The subcontractor argued that it was not advised that the head contract had been terminated, but rather advised that a replacement head contractor would be “awarded the rest of the work”. The subcontractor argued that constituted notice of an “assignment” of the head contract to a new contractor, not notice that the head contract had been “terminated”.

The court held that plain language of s. 20(2) of the BLA contains no provision that requires that subcontractors be notified when a head contract is terminated (at para. 93). The court held that if the legislature had intended for such requirement, the BLA would have expressly set out and required such notification (at para. 94). The court noted that the BLA does not contain a provision that requires the owner to publish notice of termination of a contract in a prescribed form (as does Ontario’s Construction Act, R.S.O. 1990 c. C30) and held that “unless and until the [BLA] is also amended, no such notice is required”.

The result in Hans Demolition does not necessarily mean that owners should absolutely stop notifying subcontractors about the termination of a head contract. It may be advantageous to have the termination clearly communicated to subcontractors to (a) bring certainty to the resolution of builders lien issues, and (b) eliminate the opportunity for argument about the termination date.

Conversely, it may be advantageous to the owner not to publicize the termination so that any liens filed more than 45 days after the termination date would be invalid. Another consideration may be that the continued participation of subcontractors may be required for completion of the project. A lack of transparency about the status of the head contract may not be appreciated. The most suitable strategy depends on the facts of the case, and legal advice should be sought before terminating a head contact and determining how and when to give notice of the termination, if at all.

For a host of reasons, folks often enter contracts through verbal agreement either not fully appreciating that they are entering into a binding contractual relationship or because one or more parties has refused to agree to reduce the contract to writing. While an oral contract may be fine when everything goes as planned, many complications can arise when an oral contract results in a dispute. This was the case in the recent decision of Go Transport Ltd. v Moore, 2021 BCSC 1099 (CanLII).

The Plaintiff, Go Transport, provided trucks and trailers for transporting concrete blocks for a travelling circus. The central issue was whether Go Transport contracted with the defendant, Mr. Moore or the companies which owned the circus as Mr. Moore asserted. Go Transport asserted that it has contracted directly with Mr. Moore and that he owed them $20,946.35 plus interest on the issues it issued to him. Mr. Moore contested that he was an intermediary for the circus companies and was acting only as their agent. If Mr. Moore’s version of events was upheld, Go Transport had named him wrongfully as a defendant instead of the circus companies.

In its analysis the Court first made it clear that oral contracts are enforceable, but that the party asserting the oral contract must establish the parties’ intent to be bound by the contract and the essential terms of the contract. The Court noted that the substance of the contract is more important than its form. The Court also emphasized the challenge in oral contracts is properly interpreting such agreements without the key interpretative aid, which is ordinarily the written words of a contract itself.

Given that it was dealing with an oral contract, the Court found it was called upon to consider the complete context and factual matrix of the circumstances surrounding the alleged contract to determine if it existed and, if so, what its terms were. Mr. Moore, for his part, admitted that he and Go Transport entered a similar contract for services the previous year and was not able to produce evidence he said existed and supported his arguments that the contract in question was entered between Go Transport and the circus companies.

There were bills of lading various addressed to Mr. Moore or iterations of his name, phone calls between Mr. Moore and Go Transport and invoicing addressed to Mr. Moore. Mr. Moore failed to produce evidence of the contract he says existed directly between Go Transport and the circus companies, did not obtain any admissions of such an agreement and produced no evidence that he was acting as an intermediary between Go Transport and the circus companies only.

The Court summed up its findings as follows: “I find the circumstances in 2019 were the same as in 2018: [Mr. Moore] engaged [Go Transport] and [Go Transport] did the work. The only difference is that [Mr. Moore] paid [Go Transport] in 2018. He failed to pay in 2019. The fact that [Go Transport] billed him differently in 2019 does not vitiate the contract.”

Respecting claimed interest, Go Transport alleged that it should be entitled to interest at a rate of 24% based on it including such a claim in its invoicing. The Court made it clear that Go Transport could not unilaterally foist such a term on Mr. Moore by simply including a claim for interest in its invoicing; an agreement to such a term had to be found.

Relying on s. 1(1) of the Court Order Interest Act, the Court found that an appropriate interest rate was the prime lending rate on a simple interest basis. This was in the absence of evidence about what the standard from of interest was but also noting that the basic interest rate under the Court Order Interest Act would be inappropriate in such commercial circumstances.

Go Transport Ltd. v Moore once again underscores how important it is for parties to carefully reduce their contractual arrangements to writing. Even a very simple contract could have clarified for all parties which parties were contracting and which obligations were owed by which party to which party. Go Transport could have secured its 24% interest rate; Mr. Moore could have made it clear that Go Transport was contracting with the circus companies. All parties could have potentially avoided significant legal expense and uncertainty.

For related reading, please consider:

• Expanding the Scope of Work: Renegotiate, Capitulate or Litigate
• Contract Law Largely Explored in One Case
• Meeting of the Minds – When A Contract Is Or Is Not Formed and
• Construction Estimates and Failure to Agree on Contract Pricing

It is an unfortunately common story in construction litigation: parties agree on a scope of work and price, the scope of work changes and the parties don’t go back to the bargaining table to reach an agreement on the new scope of work. This occurred in the recent decision of Digg’n 4U Contracting Ltd. v Kharwar, 2021 BCSC 1027 (CanLII).

The plaintiff contractor was originally retained by the defendant property owners to construct a five-foot high lock-block retaining wall consisting of two rows of concrete lock-blocks for the estimated price of $25,000-$30,000 based on the owners also supplying certain materials. Several changes to the project were contemplated including moving the siting of the wall, expanding the height of the wall, making alterations to the shape of the wall, making alterations to the wall that required the input of an engineer and additional excavation and preparation work for these changes. The contractor, for its part, did not immediately invoice for its expanded scope of work.

Relying on the original $25,000-$30,000 estimate, the owners refused to pay the contractor’s invoice, which was $70,618.80. In insuring discussions, the owners also alleged several deficiencies in the contractor’s work and invoicing. In their legal submissions, the owners also relied on case law related to the notion that estimates can limit the amounts properly charged, can influence the amount a court may determine work is worth if a price isn’t agreed for that work and that deficiencies with the work might disentitle a contractor to its full claims. The owners also alleged several issues with the math and basis of the invoicing itself.

The Court ultimately found that it was patently obvious to the owners that the scope of work had changed and expanded significantly. It similarly found that there was no evidence to counter the reasonableness of the contractor’s invoicing. Simply put, when the owners increased the work, they increased the amount that could be properly charged and the estimate no longer was relevant.

The owners did not establish what the duty of care applicable to the contractor for the construction of its retaining wall was, did not prove they suffered any damage as a result of alleged issues with the retaining wall and did not lead evidence the court could have relied on to conclude otherwise. The owners did not give the contractor an opportunity to remedy alleged issues with the retaining wall before they had another party alter the contractor’s work.

In the end, the judge awarded the contractor its full invoice less $665.13 in errors the contractor admitted in its invoicing. The judge rejected the owners’ counterclaims and awarded costs against them.

Digg’n 4U Contracting Ltd. v Kharwar is once again a reminder of the importance of parties reducing their contractual agreements to writing. This remains just as important when commencing contractual relations as it does when the parties agree to alter those contractual relations. Had the contractor obtained an agreement in writing from the owners as to the amount that could be charged for the additional work or even provided a new estimate that was accepted, a significant fight could have been avoided. Similarly, if the owners wanted to limit the amount that could be invoiced or bind the contractor to an estimate, it was important to refresh such commitments as the scope of work changed. Having failed to reach such agreements and no party agreeing with the position of the other, the parties had to turn to litigation to obtain resolution.

For related reading, please consider:

• Contract Law Largely Explored in One Case
• Keeping Construction Costs Under Control: Costs-Plus vs. Guaranteed Maximum Price
• Construction Estimates and Failure to Agree on Contract Pricing and
• Construction Disputes: A Contractor’s Right to be Paid vs. Owner’s Claims for Defective Work

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.

Lately, 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, or that funds are being inappropriately used (ie. not in the best interests of the Donor) it should be recognized.  That being said, to avoid any issues with your financial institution’s 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.

Intra-company disputes often involve two broad categories of remedies:

1. oppression: where a minority shareholder claims they are being disadvantaged by the majority in some fashion and seek to have the court exercise its broad statutory discretion to correct the issue; and
2. derivative actions: where a shareholder or director seeks to have the court compel a company to take some form of action. Typically the action sought is for the company to recourse or action against another shareholder or director it otherwise would not seek such recourse or action against.

Recently the Supreme Court of Canada in 2538520 Ontario Ltd. v. Eastern Platinum Limited, 2021 CanLII 44590 (SCC) rejected an appeal from the British Columbia Court of Appeal decision and, in so doing, left the appeal judgment, 2020 BCCA 313 (CanLII) as a strong, recent authority on derivative actions in British Columbia.

The underlying dispute in the litigation concerned a shareholder, described as “253” seeking leave to commence a derivative action on behalf of a company, described as “EPL”, against past and present directors and officers for breaches of fiduciary duty related to such directors’ and officers’ roles in causing EPL to enter into a framework agreement and related transactions with a company described as “Union Goal” concerning mining operations in South Africa. 253’s complaints centered on what it said was a failure of EPL to conduct due diligence and to enter into agreements 253 alleged would result in costs exceeding the benefit that such agreements could yield.

There was significant procedural wrangling at the trial level, but the trial judge and Court of Appeal did not turn their decisions on such issues.

In its analysis the Court of Appeal began by citing the provisions of the Business Corporations Act which concern derivative actions, ss. 232 and 233(1):

232   (1)In this section and section 233,

“complainant” means, in relation to a company, a shareholder or director of the company;

“shareholder” has the same meaning as in section 1 (1) and includes a beneficial owner of a share of the company and any other person whom the court considers to be an appropriate person to make an application under this section.

(2)A complainant may, with leave of the court, prosecute a legal proceeding in the name and on behalf of a company

(a)to enforce a right, duty or obligation owed to the company that could be enforced by the company itself, or

(b)to obtain damages for any breach of a right, duty or obligation referred to in paragraph (a) of this subsection.

(3)Subsection (2) applies whether the right, duty or obligation arises under this Act or otherwise.

(4)With leave of the court, a complainant may, in the name and on behalf of a company, defend a legal proceeding brought against the company.

233   (1)The court may grant leave under section 232 (2) or (4), on terms it considers appropriate, if

(a)the complainant has made reasonable efforts to cause the directors of the company to prosecute or defend the legal proceeding,

(b)notice of the application for leave has been given to the company and to any other person the court may order,

(c)the complainant is acting in good faith, and

(d)it appears to the court that it is in the best interests of the company for the legal proceeding to be prosecuted or defended.

The Court of Appeal went on to detail the requirement that the party seeking a derivative action, the complainant, must be acting in good faith. This requirement is based on the notion that the primary purpose of a derivative action must be for the company (not the complainant). The complainant has the burden of proving this good faith. The court can accept a complaint’s assertion that the derivative action is sought in good faith, but that is not determinative. Without the court finding that a derivative action is sought in good faith, a derivative action will not be permitted.

The Court of Appeal next explored the best interests requirement, which requires the court to consider whether the best interests of the company, not the complainant, lie with prosecuting the proposed action. A significant consideration is whether the proposed action is likely to succeed or bound to fail. There needs to be a properly proposed legal and factual basis for the proposed action and indication that it has a reasonable prospect of success. Whether the proposed action is worthwhile is a further consideration.

Even if the good faith and best interests tests are met, the court retains discretion whether it will grant leave to commence a derivative action.

In applying this analysis, the Court of Appeal found that the trial judge did take the views of 253’s principal on the merits of the proposed derivative action into account in his good faith analysis. It was the ulterior motives of 253’s principal that were of concern. It was not enough for there to be some belief in the merits of the proposed action, the good faith requirement was focused on the primary purpose of the proposed action to be for the benefit of the company.

253’s principal was not frank with the court that he had made considerable efforts to partner with a third party to seek a controlling interest in EPL and seek to purchase chrome offtake from OPL unsuccessfully. The trial judge found the proposed derivative action was motivated by 253’s principal unsuccessful takeover bid or to obtain retribution for such failure. The Court of Appeal found that the trial judge had evidentiary basis to reject the proposed derivative action on the basis of ulterior motives for the proposed action.

The Court of Appeal affirmed that the good faith test is not subsumed by the best interest test. A proposed action can benefit a shareholder individually, but that could only coincide with the best interests of a company so far as the requirements of a derivative action were concerned. There was no clearly articulated or apparently factual basis for the proposed derivative action, being based on breaches of fiduciary duties which breaches were not detailed, supported or described.

A party considering pursuing a derivative action should consider reviewing 2538520 Ontario Ltd. v. Eastern Platinum Limited, 2021 CanLII 44590 (SCC) and considering the lengthy and well-detailed explanations of the various requirements for such an application to succeed.

British Columbia recently passed legislation requiring employers to provide employees with two new separate paid leaves:

• Three paid days of leave for absences due to COVID-19; and
• Paid sick leave for an undetermined number of days.

The paid COVID leave came into force on May 20, 2021 and expires on December 31, 2021. The paid sick leave comes into force on January 1, 2022, and has no expiry date.

Three Days of Paid COVID Leave

The British Columbia Employment Standards Act was amended last year to provide unpaid job protection leaves to individuals unable to work as a result of COVID-19. The criteria to qualify for the unpaid leave are fairly broad, and include the need to provide care to an eligible person for a reason related to COVID-19, including a school, daycare or similar facility closure. The criteria to qualify for a paid COVID leave are narrower. Employees are entitled to a paid COVID leave where:

• the employee has been diagnosed with COVID-19
• the employee is in quarantine or self-isolation in accordance with public health direction; or
• the employer, due to the employer’s concern about the employee’s exposure to others, has directed the employee not to work.

Employees who satisfy the above criteria are entitled to three days of paid leave consisting of their average day’s wages. The government will reimburse employers who do not currently have a paid sick leave policy up to $200 per day for each employee on leave.

This paid leave is only available to individuals who cannot work due to the reasons enumerated above. For example, it does not apply to individuals who cannot work due to childcare responsibilities arising from COVID such as a COVID-related school closure. That said, such individuals may still be entitled to an unpaid leave of absence. Conversely, the paid leave applies to individuals self-isolating due to a public health order as they await a COVID test result. The government has said that the purpose of the leave is to financially “bridge the gap” between when employees first become aware of a potential illness and when they can access the Canada Sickness Recovery Benefit, thus encouraging employees not to attend work while ill.

Permanent Paid Sick Leave

Employees will be entitled to an unknown number of paid sick days beginning January 1, 2022. The legislation introducing this paid leave is relatively sparse. The provincial government passed legislation last year entitling employees to three unpaid sick days. The number of paid sick days will be finalized following consultation with the business community, labour organizations and Indigenous partners.

A recent interesting court decision came out last week from the B.C. Supreme Court: Han v. Dorje 2021 BCSC 939.  The facts of the case are interesting in that the parties never lived physically together although the Claimant, Ms. Han alleges that she has a child with Mr. Dorje arising from a sexual assault which she alleges occurred in October of 2017.

Mr. Dorje is the high lama of the Karma Kagyu School of Tibetan Buddhism and he travels the world teaching Tibetan Buddhists Dharma and hosting ceremonies in which Buddhists express their gratitude and devotion to Buddha.

Ms. Han was originally seeking child support for the child that she says is Mr. Dorje’s biological child and she recently applied to amend her claim and add in a claim for spousal support.

This case examines the law on unmarried couples and when they are considered spouses under the BC legislation, the Family Law Act. 

In order to apply for spousal support, Ms. Han must prove that they lived together in a spousal relationship and had a child together.  If the parties did not have a child together, then she would need to prove they lived together in a spousal relationship for a minimum of a two year time period.

Master Elwood goes through the various cases on unmarried couples living in marriage like relationships and determines that while the facts of this case do not fit into most of the factors, he confirms that the Court should not consider them on a checklist basis and should look at it holistically.  He quotes from several cases throughout the country, including a 2003 Saskatchewan: Yikiwchuk v. Oaks 2003 SK QB 124 where Mr. Justice Myers states:

“It is this variation in the way human beings structure their relationships that make the determination of when a “spousal relationship” exists difficult to determine. With married couples, the relationship is easy to establish. The marriage ceremony is a public declaration of their commitment and intent. Relationships outside marriage are much more difficult to ascertain.”

The Master goes on to quote from a BC Court of Appeal case, Weber v. Leclerc, 2015 BCCA 492 which states at paragraph 23:

[23]  The parties’ intentions – particularly the expectation that the relationship will be of lengthy, indeterminate duration – may be of importance in determining whether a relationship is “marriage-like”.

The Master in this case did not decide whether or not Ms. Han was in a marriage-like relationship with Mr. Dorje and could therefore claim spousal support.  He was to make a decision on the procedural issue of whether or not Ms. Han could amend her claim to include a claim, at this stage, that they were in a marriage-like relationship and therefore she could claim spousal support.  In order for her to amend the claim at this stage of the proceedings, Ms. Han needed to prove that there was a reasonable claim that the parties were in a marriage like relationship and the Master needed to assume that the facts as alleged by Ms. Han were true in order to make that determination.

The Master ultimately determined that there was a reasonable claim and that it would be up to the trial judge to decide, so allowed Ms. Han to amend her claim.  He did acknowledge that the proposed amendment raises a novel question which is “can a secret relationship that began on-line and never moved into the physical world be like a marriage?” and that Ms. Han’s claim was that they could not be physically together because Mr. Dorje was forbidden by his station and religious beliefs from intimate relationships and marriage and that it will be up to the trial judge to determine. The two factors which the trial judge may find weigh in favour of this being considered a marriage like relationship are the fact that Mr. Dorje provided Ms. Han with large amounts of financial support, during the year that she alleges they were in a marriage like relationship, and that there is text message correspondence between the parties during that year, which the trial judge may find is indicative of an intimate marriage like relationship.

It will be interesting to see ultimate how this case is decided at trial.  If it is determined that there was a marriage like relationship here, it is a further broadening of the types of relationship that can be considered to be marriage like for spousal support purposes and potentially for the purposes of property division as well.

This case is yet another reminder that if you are in an unmarried relationship, it is prudent to clarify the terms of your relationship.  If you want to avoid litigation in the future, a Cohabitation Agreement between you and your partner is always recommended.

The Office of the Superintendent of Real Estate (OSRE) has released a new information brochure for consumers looking to purchase a pre-sale condo. The brochure, called Understanding Pre-Sale Purchases, identifies risks and other information that consumers should be made aware of prior to signing a pre-sale contract. OSRE strongly encourages the developer and legal community to share this resource with pre-sale consumers.

For many consumers, including first-time home buyers, pre-sales are an affordable pathway to home ownership and OSRE is supportive of the efforts of the development community to ensure consumers are informed of their rights and responsibilities when signing a pre-sale contract.

OSRE receives numerous enquiries each month from purchasers related to pre-sale purchase agreements. Consumers thinking about purchasing a pre-sale condo need to make an informed decision and understand their rights and obligations when signing a pre-sale contract. This brochure is intended to help prepare them for this significant decision.

In the coming weeks, OSRE will be working with the Real Estate Council of British Columbia (RECBC) to promote the usage of this brochure by licensed real estate agents. OSRE and RECBC will also be promoting the brochure through social media channels and as part of RECBC’s ongoing consumer awareness campaign in response to current market conditions.

There are a number of important considerations which arise where an estate planning client holds shares in a company including legal, tax and financial considerations.  This article is intended as an overview of some of these matters and is by no means exhaustive.  It is very important to get specific legal and tax advice to ensure that your wishes will be achieved and in the best possible way.

One tool available to a shareholder in the estate planning process is called an “estate freeze”.  This tool is intended to limit the capital gains tax payable by the Estate on the death of the shareholder (“Shareholder A”).  In many cases, this is beneficial where the value of the shares held by Shareholder A is likely to significantly increase prior to the death of Shareholder A.  In essence, the purpose of the estate freeze is to lock in the value of the company as of a certain date.  This is achieved by a share exchange whereby Shareholder A will exchange their shares for a different class of preferred shares with a fixed value.  Going forward, new shareholders in the company (whether they be individual family members or a family trust) will have any appreciation in the value of the company flow to them rather than Shareholder A, thereby limiting the capital gains tax that the Estate may be exposed to on the death of Shareholder A.  This is a very brief summary of what can be a fairly complicated process involving accounting and legal advice.

Another issue that often arises in the course of considering a shareholder’s estate plan is the question of who will take over the operation of the business once the shareholder passes away.  There are a number of ways of arranging the transfer of shares to meet the testator’s wishes.  In some cases, the testator will have a child or other family member who will be taking over the business.  In others, the testator will want the company to be sold and the proceeds from the sale to be available for distribution to the beneficiaries.  Specific matters that need to be considered is who the voting shares in the company will be transferred to (as they will be entitled to vote on the composition of the board of directors to run the company) as well as when the testator wants their chosen successor (if there is one) to receive the shares in the company.

In many cases, a shareholders’ agreement for the company in which the testator holds shares may impact the transfer of the testator’s shares on their death.  The shareholders’ agreement and the articles of the company should be reviewed carefully in the course of establishing the estate plan.

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.

Whenever parties fail to fully document the contractual agreement between them, the risk of litigation is heightened given the lack of prescribed remedies and consequences in addition to the wide spectrum of issues that may come down to “he said, she said”. In the recent decision of Hodder Construction (1993) Ltd. v Topolnisky, 2021 BCSC 666 (CanLII) (“Hodder”) the Court was called upon to adjudicate a myriad of issues that can arise in both a collapsing construction project and where there is no formal contract at the heart of the dispute.

In Hodder, the plaintiff contractor had been retained to act as a general contractor for a specially designed steel-frame home for the defendant property owner. The project was commenced without a written agreement and ran into several issues including the head architect eventually leaving the project and a stop work order being issued as a result. Disputes arose between the contractor and owner because of the owner refusing to pay the contractor’s invoices and questioning the billing practices of the contractor.

The total amount of the invoices issued was $854,400 of which the owner paid $495,000. The contractor stopped working when payment was being refused and liened the property. The owner retained another general contractor to finish the work and paid it another $635,000 including $131,094 alleged to be work within the scope of the work the plaintiff contractor invoiced. The owner also alleged the contractor’s invoicing was in violation of an agreed-upon maximum cost of $850,000. The contractor sued for its unpaid invoices based on both contract and quantum meruit (the concept of being paid the fair value of your work) and the owner countersued for the amount she said she wrongfully paid the contractor, breach of contract and negligent representation.

In analyzing whether the parties reached a binding contract, the court held that such a finding was dependent on finding there had been a consensus ad item or meeting of the minds, which, in turn, required an analysis of the expressions of intent of the parties.

The court did not have difficulty finding that the parties had agreed for the plaintiff to act as a general contractor for the construction of a home, but that was not enough to find that a contract had been formed. The court found that “fixed price” documents exchanged were not signed and were produced for the purposes of obtaining construction financing. The full scope of the contract’s work and the cost consequences of work being removed from that scope were not spelled out. There was no clear completion date agreed upon. There was no clear agreement on the amount the contractor would be paid for its work once complete.

Ultimately, the court found that there was no enforceable contract between the parties. The lack of any clear agreement on the contract price or remuneration caused no contract to be formed.

In the absence of a binding contract, the court then went on to analyze how the contractor’s claims for payment and the owner’s counterclaims for overpayment and costs to complete the work should be adjudicated.

The court held firstly that it is possible that estimates the contractor gave could be given contractual effect, setting a limit beyond which its charges could not go. The court further detailed that this legal concept is tempered by the uncertainty inherent in construction work and that even an estimate found to have binding legal effect must treated with leeway.

While the court found that there was no contract and, as such, there could be no contractual effect for any representations the contractor made to the owner, there existed a quasi-contractual relationship between the parties supporting the notion that a reasonably informed estimate provided by an experienced builder and relied upon to an owner’s detriment could have legal effect. The court went on to cite the law that such effect made be found where:

1. a special relationship between the parties existed;
2. a false, inaccurate, or misleading representation was given by one party to the other;
3. there was negligence in making the representation,
4. there was reasonable reliance on the representation; and
5. detriment occurred as a result of the reliance

The court found that a quasi-contractual relationship existed satisfying the first element. The court rejected the factual underpinnings of arguments about whether representations made were false because the court found that there was conflicting and inconsistent evidence about a construction budget and found that the contractor never agreed to a $850,000 costs cap as alleged by the owner. As the owner failed to meet the second element of the test for negligent misrepresentation, the court concluded its analysis and rejected arguments about misrepresentation.

In determining what the contractor might be owed, the court first discussed that there are a variety of contractual, quasi-contractual and equitable means of determining the amount a contractor may claim which are fact specific in application. At paras. 178 and 179, the court held as follows:

In the case of contractual quantum meruit, the underlying premise is that the parties reached an agreement that included an implied term for reasonable remuneration, without specifying the amount or mechanism for determining remuneration. In such cases, the appropriate monetary award is determined by reference to the “cost of the services, rather than the benefit to their recipient…

In the case of restitutionary quantum meruit, the underlying premise is that the party who provided the services is entitled to be compensated in connection with the opposing party’s unjust enrichment. As an equitable remedy, restitutionary quantum meruit is flexible. Over time, courts have come to assess quantum meruit awards “in various ways, including the cost to the claimant of providing the service, the market value of the benefit, or even the value placed on the benefit by the recipient”:… Thus, the measure of damages has been described variously as “the amount the [claimant] deserves”, “what the job is worth”, “the value of the benefit obtained by the defendant”, “the reasonable market value of the services”, or the “value of the services rendered to the defendant”…

The court made several adjustments to the contractor’s claims including:

• rejecting the contractor’s claims for rental of its own equipment;
  • the court noted this might be appropriate in cost-plus arrangements, but was not for this sort of quantum meruit claim;
• the court reduced labour costs;
  • the amounts claimed were increased over the costs incurred and, while the court accepted that there was some justifiable overhead expenses that could be added onto the amounts actually paid, not all such amounts were claimable on a quantum meruit claim;
• the court rejected markup on materials;
  • again, since a cost-plus arrangement was not agreed to, the court would allowed payment for the contractor’s costs but not an amount on top of that; and
• the court adjusted a 5% management fee it allowed to harmonize with other adjustments it made to amounts claimed.

In total, the court reduced the amounts claimed as outstanding by the contractor from $359,862.09 to $199,879.16. In that same vein, the contractor was entitled to a builders’ lien for the same amount and the remedies that flowed from same.

The court rejected the owner’s claims for defects and deficiencies finding that such claims were for amounts to complete the work started by the contractor and were not actually defects and deficiencies.

Hodder is a cautionary tale for both contractors and owners.

As the court in Hodder pointed out many times, in a cost-plus arrangement, the contractor might have claimed significant portions of the over $150,000 in claims the court disallowed because it was granting a judgment based on quantum meruit. The contractor may have also been able to realize anticipated profit more easily on incomplete work had the parties had reached a properly detailed contract that would have governed their dealings.

Similarly, the owner might have succeeded in her arguments that construction costs would be capped and may have successfully advanced costs for completing work or for amounts which exceeded the construction cap if she had properly secured a detailed contractual agreement containing such budgetary constraints.

Both parties may have saved significant legal expense by entering a detailed contract even if elements of that contract would have come into dispute anyways. The parties may have significantly reduced the amount of testimony that was required to be given, the need to argue about the meaning and import of tangentially related documents and communications and even number of issues that could reasonably be disputed.

Some related articles I have recently written on similar subject as this one include:

• Contract Law Largely Explored in One Case;
• Keeping Construction Costs Under Control: Costs-Plus vs. Guaranteed Maximum Price;
• Construction Estimates and Failure to Agree on Contract Pricing; and
• Negligent Construction – Who to Sue and What to Sue For.

It is a common question: when you lend someone money, they use that money to purchase land and the money is not paid back, can you somehow secure repayment by encumbering title to the land? Clients often ask about whether they can “lien” or tie up real property for their debts and are curious whether there is any means to secure a debt or encumber land before judgment.

With a mortgage or security agreement, generally the means of encumbering land based on an alleged interest in that property is through a certificate of pending litigation or CPL. In BC, the Land Title Act provides that CPLs can be registered against real property by a person who has commenced a proceeding or is a party to a proceeding that has commenced who claims an estate or interest in land or is given a right of action in respect of land by statute. Land with a CPL registered on it prevents other instruments being registered on it or sold or transferred except in specific circumstances.

In the recent decision of Beijing Tian Zi Property Group Trading Ltd. v Jia, 2021 BCSC 423 (CanLII) the Supreme Court tackled questions about when a lender can or cannot seek to register a CPL against the lands of a debtor.

In Beijing Tian, the plaintiff sought to cancel CPLs registered by the defendant against the plaintiff’s lands. The underlying dispute was complex, involving allegations that the defendant misappropriated funds from the plaintiff’s bank account. The defendant alleged that the money taken was authorized and was a partial payment for purchase of his shares and that he was owed a substantial additional amount. The defendant’s position was altered and his pleadings were amended alleging the repayment of a loan related to the taken funds. He alleged he had an equitable interest in the form of a constructive trust over the lands he registered CPLs against.

In its analysis, the Court held that whether the CPLs could be maintained required an examination of the court filings and whether those filings demonstrated the defendant alleged a proper interest in the lands which could support a valid CPL. The Court stated at para. 16 that “The key issue in this case is whether [the defendant’s] pleadings are capable of giving rise to an interest in land.”

The Court held that the defendant’s claims were based on the funds he allegedly lent to the plaintiff being used to acquire, preserve, maintain and improve the subject lands. The defendant alleged he performed work on the lands and maintained and cared for them.

The court at paras. 26 and 28 cited the following passages from Nouhi v. Pourtaghi, 2019 BCSC 794:

A party seeking either type of constructive trust must satisfy two criteria, in addition to the cause of action or circumstances on which the remedial or substantive constructive trust is based. The first is that there must be referential property, i.e. the plaintiff must demonstrate a substantial and direct link, a causal connection or a nexus between the claim and the property upon which the remedial constructive trust is to be impressed… The second is that the plaintiff must demonstrate that a monetary award is inadequate, insufficient or inappropriate in the circumstances…

[An application to strike a CPL] requires the court to determine whether the pleadings disclose a claim to an interest in land so as to support a certificate of pending litigation. …[T]he party who filed the certificate of pending litigation may not maintain the certificate when the pleadings were inadequate to disclose a claim to an interest in land at the time the certificate was filed. If the pleadings were not adequate when the certificate was filed, the certificate was never valid and is immediately cancelled… In such a case, the plaintiff can seek to amend the pleadings and then file a valid certificate of pending litigation in the event that the amended pleadings disclose a claim to an interest in the land… [citations omitted].

In completing its analysis, the Court determined that the defendant’s claim failed to give rise to an interest in land. There was no direct link, causal connection or nexus between the claim and impugned lands to give rise to a remedial constructive trust. Pleadings were insufficient to support the notion that a monetary judgment would be inadequate, insufficient or inappropriate, which the court found was necessary to permit the CPLs to continue.

The Court found that ultimately the defendant’s claim was one seeking a monetary judgment. There was no connection between the funds alleged to be loaned and the lands. Providing a loan where the funds lent might be used to purchase property does not, in and of itself, establish an interest in land.

The Court was clear that the defendant could seek to amend his pleadings to properly allege an action supporting a CPL, if such basis existed.

Beijing Tian is an important reminder that simply because someone might owe another person money does not mean that there is any ability of the creditor to encumber lands owned by the debtor prior to judgment. Whether the funds lent were used to purchase lands can be immaterial. There can be circumstances in which lent funds could give rise to a valid CPL, but generally not in the situation of a basic loan. Further, a party wishing to secure loaned funds should avoid any arguments about the validity of any CPL it might later file by properly drafting and having a debtor execute security agreements and/or a mortgage.

It is notable that Pre-judgment garnishment can also be considered as a means to effectively secure a debt claim before judgment, but does require knowledge of the debtor’s banking information and/or other financial affairs to be successful.

Leaving a charitable donation in your Will can be a wonderful way to benefit a charity that has meant a great deal to you during your lifetime. It gives the testator a really ‘feel good’ last word, and an opportunity to say ‘thank you’ for all the great work that charities do for our community.

There are many different types of assets that can be donated. If your Estate will have cash, you can simply donate a sum of money to your favourite charity. It is also possible to donate your registered accounts like RRSPs, life insurance proceeds or personally held assets.

There are several reasons that people decide to make a charitable bequest:

• Helping others – We all have an innate desire to help others. This is, of course, the main reason we give to charities during our lifetimes. A Will can ensure you keep giving after your death.
• Tax Benefits – Your estate can reduce taxes that may be payable by making a charitable donation. You should talk to your Accountant for more information about this, during your Estate Planning process.
• Leaving a legacy – Some charities will remember their donors by engraving their name on to a plaque, painting, wall or other object. This can leave you with a positive legacy and help console your bereaved loved ones. It may be somewhere they can visit and derive comfort from.

There are also different types of bequests that can be drafted into your Will, depending on what you wish to achieve with your charitable gift:

• Specific Bequest: You can designate a specific dollar amount or piece of property, such as real estate, stocks, bonds or works of art, for example: “ I give the sum of $X.XX (or description of other property) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”
• Residual Bequest: You can donate all or a portion of your estate to the charity after all your debts, taxes, expenses and other bequests have been paid “ I give the residue of my estate (or percentage of the residue of my estate) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”
• Contingent Bequest: Your gift takes effect only if the primary intentions cannot be met (sometimes called the ‘disaster clause’). “ If neither (name of primary beneficiary) nor (name of alternate beneficiary) survives me for 30 days, then I give (describe amount of cash, property, percentage of residue or other gift) to XXX to be used for such of the objects and purposes as the Board of Directors shall from time to time determine.”

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.

I recently attended a Continuing Legal Education Society of BC presentation about the significant changes coming to the Provincial Court Family Rules and forms effective May 17, 2021.  Below is a brief summary of some of what I learned.

There are 13 parts to the rules.  The first part deals with the purpose and interpretation of the rules which generally is to encourage resolution by agreement, and to resolve matters in a just and timely way proportionate to the issues at hand.

New defined terms include Family Law Matter, Priority Parenting Matter, and Case Management Order.

Family Law Matters includes issues about parenting arrangements, child and spousal support, guardianship of a child, and contact with a child.  The Provincial Court does not deal with divorce or division of family property.

Priority Parenting Matters include issues concerning the health of a child, applications for passports, etc., permission to travel, etc., changing a child’s residence, orders to prevent removal of a child from BC, among other serious matters.  As the name suggests, these issues will likely be given priority treatment.

Case Management Orders are available to deal with issues of a procedural or administrative nature like transferring files, document disclosure, conduct orders, expert reports, etc.  The orders can be made at any time in a case and are designed to manage the case and move it forward to resolution.  Often, no court appearance will be necessary.

Applications for Case Management Orders replaces the previous notice of motion, and require seven days notice unless the court directs otherwise.  The applications can be brought at any time and the forms are specific to the issues.  There are specific forms for protection orders, priority parenting matters, case management, prohibiting relocation, and enforcement.

How a case proceeds depends on the registry, and the rules direct in which registry to start or continue a case.  The Kelowna Provincial Court is a designated Family Justice Registry which requires a litigant to participate in a needs assessment with a Family Justice Counsellor, and complete an online parenting education program before filing their court application.  Also offered is the opportunity to utilize a voluntary consensual dispute resolution process.

Forms have been totally revamped and are expected to be much easier to follow and complete.  An online guidebook will be available.  The forms are generally in the first-person format with questions requiring answers, and are specific to the issues at hand often including schedules.  They are designed to give litigants the opportunity to tell their story in a meaningful way and collects the necessary information to allow for informed decisions while avoiding duplicity of claims.

Family Management Conferences are also new, and replace first appearances.  The conference is informal and time limited.  It is designed to help litigants identify the issues, explore options, make consent orders if agreement, manage the case and direct the next steps, and make interim orders to address needs until final resolution.  The conference is recorded and evidence can be provided.  The conferences are expected to reduce the number of interim orders required before trial proceeds.  If a person does not appear at a conference, then the court can proceed to make orders in their absence.

There are a number of other important changes to the rules that are not mentioned above, and it will likely take some time for the ‘dust to settle’ before the new rules can be evaluated, but they are expected to make it easier to access justice.

If you require assistance with the new Provincial Court Family Rules then contact one of the family lawyers at Pushor Mitchell LLP.

Patrick has been practising Family Law since 1996.  First in Prince George, then in Ontario, and now in Kelowna with Pushor Mitchell LLP as associate counsel.  He can be contacted at gaffney@pushormitchell.com, or 250.869.1164.

It’s well known that drinking and driving is linked to a high risk of causing a car crash.

UBC Medial Relations has an article on a new UBC study that concludes that many common prescription medications pose a risk of causing a car crash.

• taking common prescription medications like sleeping pills, opioids and medication used to treat anxiety and depression also poses a risk, a new UBC study of millions of drivers finds.

• drivers prescribed sedating antipsychotics have a 35 per cent increased risk of causing a road collision.

• people on commonly prescribed benzodiazepines (like Valium or Xanax) increase their risk by 25 to 30 per cent.

• high-potency opioids such as morphine showed a 24 per cent increased risk of road collisions.

Dr. Jeff Brubacher, an associate professor at UBC’s faculty of medicine, says these results indicate a need for more caution among drivers taking medications, and specific advice from physicians who prescribe them.

Although standard advice recommends not driving if you feel drowsy, a lack of symptoms does not mean drivers are not at risk.  “Even if you feel safe to drive, you’re still at a modestly increased risk of up to 35 per cent, which is nothing to ignore,” he says.  “I don’t want to give advice that you just absolutely shouldn’t be driving when you take these medications, but there has to be a lot of caution if you do choose to drive, especially if you are feeling at all drowsy.”

No evidence of tolerance

The researchers studied prescription records and motor vehicle collisions over a 20-year period in B.C. This included almost five million drivers, over 131 million prescriptions and over 600,000 collisions from Jan. 1, 1997 to Dec. 31, 2016.

The study analyzed police reports to determine which drivers were responsible for crashes, and then compared the risk between drivers with active prescriptions and those without any prescriptions.

They also assessed whether tolerance might play a factor.  People with a new prescription (less than 30 days) and people with an established prescription (more than 30 days) turned out to have similar risk.

“People taking these medications on a long-term basis might think they are tolerant to it and are safe to drive,” Dr. Brubacher says. “But in reality, the risk of causing road collisions goes up in these groups of people and it stays up even with time.”

Brubacher also warns that risk increases when drivers take several prescription medications at the same time, or if they mix their medications with alcohol.

Specific messaging needed

The findings can further guide prescription choices and warnings on medication labels, and inform public education campaigns targeting impaired driving, Dr. Brubacher said.  “If almost every medication is dispensed with a warning not to drive, then that messaging loses its effect,” he says. “We can maybe be a little bit more selective and specific in our warnings.”

The study proposes that clinicians who prescribe opioids and benzodiazepines should regularly counsel patients on the risks of driving while using these medications, even for patients who have been on the medications for a long time.

This study was published Monday in Lancet Public Health.

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, medical malpractice, 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.

Contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

The amendments to the federal Divorce Act came into force March 1, 2021 which marked long overdue changes to a piece of legislation that has not been significantly amended in more than thirty years.

The change that I believe will impact the most on a day-to-day basis in my capacity as a family lawyer was finally getting rid of the terminology of custody and access. British Columbia brought in its current family law legislation in 2013 and was ahead of the times in the shift away from this language. It’s about time that now the federal legislation has followed suit.

A change in language may not seem like a significant change, however unfortunately good old custody has become quite the albatross in dealing with parties going through separation in crafting their parenting plans. The words “custody” and “access” has over time become both emotionally loaded and meaningless.
When a new client comes through the door and declares that they want “sole custody!” I always ask, “What does that mean to you?” Usually they do not have a clear idea of what it means but somehow a conception that in achieving sole custody they are deigned to be the most important or better parent, or the one who will have the final say in parenting disputes.

I try and reframe the conversation with more neutral language of putting in place a parenting plan that is focused on what will work the best for their kids instead of equating their worth as parents on a perplexing label. Now, both the Divorce Act and our provincial legislation in British Columbia have language that is helpful in reframing this conversation and I can just tell clients, “We don’t use that word or concept anymore.”

“Parenting time,” as opposed to custody, focuses on the parent-child relationship and a consideration of what the plan will be for the child (i.e., how much time they will spend with their child in their care and what will that plan look like). Words are powerful and shape the way we think about our relationships.

My other favourite part of the new legislation is the emphasis on family dispute resolution processes. It represents the results of a discussion that has been happening in the family bar and in the culture more generally to broaden the context and view on how we resolve disputes for families. Family dispute resolution used to be called “alternative dispute resolution” and was seen as the alternative to court, with the court process as the default. I believe we are now on our way to seeing court options as the alternative in family disputes, particularly in parenting disputes and where there are children involved. The old Act did have reference to a lawyer’s duty to have this discussion with their client, however, it was much less specific or exhaustive and simply referenced mediation and negotiation. Now collaborative law has been added in and recognized as a viable option for resolution.

It remains to be seen how much difference these two changes will make in the way we practise as family lawyers and in the way the broader culture supports families going through the transition of a separation. However, it is a long overdue and positive step to recognizing that these difficult issues should be approached through a child-centred lens.

This article was originally published by The Lawyer’s Daily part of LexisNexis Canada Inc.

Leneigh Bosdet is a partner at Pushor Mitchell LLP in Kelowna, B.C. and practises exclusively in family law. She has an emphasis in her practice on out of court resolution. Bosdet is the chair of the Okanagan Collaborative Family Law Group and is the 2020-2021 president of the Okanagan family law section of the B.C. bar association.

Sir Richard Branson leads this worldwide initiative to end the death penalty.

A global group of executives, supported by the Responsible Business Initiative for Justice, is launching the Business Leaders’ Declaration Against the Death Penalty, calling on governments everywhere to end the practice, and asking their peers to join them. The declaration seeks to build a global movement of like-minded leaders committed to the cause of abolition.

Sir Richard Branson is quoted in a Fast Company article:

“I am of the opinion that the death penalty is inhumane and barbaric. Study after study has shown that it has failed to deter or reduce crime. It is also disproportionately used against minorities and other vulnerable and marginalized groups. Virginia Delegate Jay Jones, speaking just prior to his state’s historic vote, called it a “direct descendant of lynching.” It’s true. The death penalty can no longer hide its rotten roots: The world over, it has been an instrument of racism, oppression, and intimidation.

From a fiscal point of view, capital punishment cases are often prohibitively expensive, especially when compared to the cost of a life sentence. Under any circumstances, it is an enormous waste of public funds—not just in the U.S., but also in other countries where large numbers of people languish on death row, only to be released a decade or more later as courts acknowledge that charges were trumped up and never warranted a death sentence in the first place.

Most important, perhaps, capital punishment is terrifyingly prone to error. In the U.S., for every nine people executed, one person has been exonerated. Since 1976, 185 innocent people have been freed from U.S. death rows. That’s far more than just a shocking statistic. It’s 185 personal stories of needless suffering, agony, and injustice. Bryan Stevenson, a brilliant champion of criminal justice and human rights, once compared this rate of error to the safety record of an airline.

Against this backdrop, today’s business mobilization against the death penalty shouldn’t come as a surprise. The heightened attention to corporate sustainability over the last three decades has raised expectations of business as a driver of social and environmental progress. But getting your own house in order, tackling material challenges like climate or human rights issues in supply chains, is no longer enough. Increasingly, consumers, employers, and investors expect businesses and their leaders to take a stand on critical issues of our time. If business can lobby for its own good, the argument goes, it must also be a lobbyist for the greater good of humanity.

In the case of the death penalty, the business case for engagement is blindingly obvious. As a biased and inherently unjust form of punishment, it runs counter to the ideals of good governance, social cohesion, transparency, and fairness—all factors considered critical to long-term business success. Where governments hide or obscure the origin of lethal injection drugs, for instance, businesses have good reason to wonder about commitments to private contracts. Where people of color and the poor are far more likely to be caught up in a vicious and deadly cycle, business should raise concern about the rule of law and equal justice. And where precious public resources are wasted on the relentless pursuit of executions, rather than invested in schools, quality healthcare, social services, and infrastructure, business must vocally call into question government priorities.

I believe that business leaders must strive to hold up their end of a social contract that entrusts us with great leverage to grow and succeed.

Sir Richard Branson is an entrepreneur, philanthropist, and the founder of the Virgin Group.

So in summary:

• The death penalty system is applied in an unfair and unjust manner against people, largely dependent on how much money they have, the skill of their attorneys, race of the victim and where the crime took place.  People of color and minority groups are far more likely to be executed than white people, especially if the victim is white.
• The death penalty is a waste of taxpayer funds and has no public safety benefit. The vast majority of law enforcement professionals surveyed agree that capital punishment does not deter violent crime; a survey of police chiefs nationwide found they rank the death penalty lowest among ways to reduce violent crime.  They ranked increasing the number of police officers, reducing drug abuse, and creating a better economy with more jobs higher than the death penalty as the best ways to reduce violence.  The FBI has found the states with the death penalty have the highest murder rates.
• Innocent people are too often sentenced to death.  Since 1973, over 156 people have been released from death rows in 26 states because of innocence.  Nationally, at least one person is exonerated for every 10 that are executed.
• Statistics also show that the death penalty often results in jurors being more reluctant to find guilt, and results in more guilty offenders being acquitted, and back on the streets.

To learn more about the Business Leaders’ Declaration Against the Death Penalty, visit businessagainstdeathpenalty.org.

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, medical malpractice, 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.

Contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

Most people are aware that they are supposed to shovel the sidewalk in front of their house after a snowfall. Many people are aware of what time their municipality expects them to do so. The recent decision of Der v. Zhao, 2021 BCCA 82 (CanLII) explored the legal principles related to the obligations of residential owners to clear the sidewalk in front of their houses and what risks are created when a person slips on a sidewalk in front of someone’s house.

In the Der v. Zhao decision, the Plaintiff, Mr. Der, was injured when he slipped on black ice in front of the Defendants’ home. The sidewalk had been cleared, but black ice had formed on a sloped section of the sidewalk allowing for wheelchair access. When Mr. Der stepped on that sloped portion, he did not see the black ice and he fell backwards, striking his head and causing serious injury. The Defendants had cleaned the sidewalk after a snowfall two days earlier including salting the sidewalk in the morning of the accident.

As in most if not all municipalities, the City of Burnaby (where the accident occurred) had a bylaw requiring a property owner to clear a sidewalk of snow and ice by 10 a.m. each morning.

At trial, Mr. Der conceded that whether the Defendants had breached the bylaw did not make them liable to him for using their sidewalk. He also agreed that the Defendants were not occupiers of the sidewalk meaning they could not be held liable further to the Occupiers Liability Act. He also conceded that no duty of care was owed by a residential property owner to clear their sidewalk of snow and ice. Instead, Mr. Der tried to argue a novel duty of care resulting from the Defendants failing in their attempt to clear snow and/or ice prior to the accident thereby created a hazardous, slippery sidewalk that was not visible to a reasonable person in Mr. Der’s circumstances. Put succinctly, he sued for a negligent attempt to clear the sidewalk.

The trial court rejected Mr. Der’s positions finding that “It is not reasonable to interpret an attempt to comply with a bylaw as a voluntary undertaking to the City to maintain the sidewalk and resolve dangers that later form on it.” The trial judge refused to recognize a new duty of care noting that “To agree that homeowners owe no duty to users of the sidewalk to maintain it, but argue that failing to act to the appropriate standard in doing so can create a duty of care, is contrary to basic negligence principles in that it conflates concepts of duty of care with standard of care. It is circular reasoning.”

On appeal, Mr. Der abandoned arguments about a novel duty of care arising from the negligent undertaking of the sidewalk clearly. Instead, he changed his position and argued that there was a duty of care by residential homeowners to clear adjacent municipal sidewalks. Mr. Der contended that the trial judge erred by asking whether a reasonable person in the position of the Defendants would have foreseen that their actions would risk danger.

The Court of Appeal in its analysis first turned to the most basic principles which establish liability, known as the Anns/Cooper analysis. That analysis as cited by the Court is:

• Does a sufficiently analogous precedent exist that definitively found the existence or non-existence of a duty of care in these circumstances;

If not;

• Was the harm suffered by the plaintiff reasonably foreseeable;

If yes;

• Was there a relationship of sufficient proximity between the plaintiff and the defendant such that it would be just to impose a duty of care in these circumstances;

If yes, a prima facie duty arises;

• Are there any residual policy reasons for negating the prima facieduty of care established in question/step 3, aside from any policy considerations that arise naturally out of a consideration of proximity.

If not, then a novel duty of care is found to exist.

Applying these factors, they Court found as follows.

1) Sufficiently Analogous Precedent

The Court reviewed several previous cases and concluded that:

…[A] property owner owes no duty of care at common law to pedestrians to clear adjacent sidewalks of snow and ice. In most of the cases, this conclusion has been reached in circumstances where a municipal bylaw imposed an obligation on the property owner to remove snow or ice.

…

The existence of a bylaw requiring a property owner to clear snow and ice does not impose such a duty; courts have repeatedly held that such bylaws may impose penal consequences for non-compliance but not civil liability to third parties.

…

[I]t is well‑established at common law, through tort and property law principles, that a property owner’s liability for the condition of and activities on his or her property ends at the property boundaries.

2) Foreseeability

The Court had no difficulty finding that the harm suffered by Mr. Der was foreseeable. It a sidewalk is not cleared of snow and ice, someone falling is a clearly foreseeable risk created as a result.

3) Relations of Proximity

The Court noted that there were existing authorities rejected the existence of a duty of care in the same or similar circumstances as Mr. Der which it had to consider. Previous decisions had determined without exception that no proximate relationship exists. The Court noted that a different relationship exists between municipalities and the roads and sidewalks in their ownership and care and the public than exists between residential homeowners, a municipally owned sidewalk and a pedestrian on that sidewalk.

The Court noted that there is a history of courts finding that pedestrians are expected that snow and ice create hazards on sidewalks even when sidewalks are cleared. Such expectations suggest that pedestrians should not rly on adjacent property owners or municipalities to keep sidewalks free from hazards caused by changing winter conditions after a snowfall. It would be unfair for residential property owners to constantly monitor changing weather conditions and check for and clear all hazards which are dynamically created as a result.

Ultimately, the Court was able to find that no duty of care was owed to Mr. Der and, as such, he could not successfully sue because no relationship of proximity existed.

Conclusions

Der v. Zhao is a good reminder to the public that sometimes accidents are just accidents and that, even when foreseeable risk is present and serious injuries have been suffered, there may be no one to sue. Pedestrians must take care to guard their own safety and be aware of risks around them.

Der v. Zhao should not be viewed as asserting that there are no circumstances in which a slip and fall on a sidewalk or elsewhere may result in liability. The Court specifically distinguished municipally owned sidewalks in front of residential property from sidewalks in front of commercial operations where the public is invited to access the business via said sidewalk. The case does not speak to municipally owned and municipally maintained sidewalks or to sidewalks which may be owned and managed as part of the common property of a strata. Lastly, occupiers’ liability can be created as soon as a victim steps off the municipally owned sidewalk onto a residential owner’s walking path or driveway.

In short, pedestrians should take care when walking in the winter. Residential property owners should abide by all obligations to clear municipally owned sidewalks adjacent to their property as required by applicable bylaws but are not responsible to do more by removing all hazards created by dynamically changing weather conditions occurring after snow removal required by bylaws has occurred.

Some important changes to the Worker’s Compensation act have come into effect.

One that could be of particular interest to those workers in receipt of long-term disability benefits is the Board will reconsider decisions made regarding the duration of pensions.  Currently pensions are only payable until age 65 unless at the time that the pension is granted the worker can prove that he or she was intending to work beyond age 65.  For all intents and purposes that was an impossible test for most workers. How would a 40-year-old know when he was going to retire?

Under the new rules anyone having been granted a pension before they reach age 63 provided that they make an application before they reach the age 65.  The board will decide whether pension extensions will be granted based on some of the following factors:

• names of the employer or employers the worker intends to work for after age 65, a description of the type of employment the worker is going to perform, the expected duration of employment, and information from the identified employer or employers to confirm that the employer(s) intends to employ the worker after the worker reached age 65 and that employment is available;
• a statement from a bank or financial institution outlining a financial plan and post-age 65 retirement date;
• an accountant’s statement verifying a long-term business plan (for self- employed workers), indicating continuation of work beyond age 65;
• information provided from the worker’s employer, union or professional association regarding the normal retirement age for workers in the same occupation and whether there are incentive plans for workers working beyond age 65;
• information from the employer about whether the worker is covered under a pension plan provided by the employer, and the terms of that plan;
• information regarding whether the worker has the capacity to perform the work;
• financial obligations of the worker, such as a mortgage or other debts;
• family commitments and/or circumstances of the worker; and
• an outstanding lease on a commercial vehicle (for self-employed workers).

Another important change increases the amount of compensation payable to workers as a result of the increase in the maximum assessable earning rate to $100,000 from $87,100 in 2020.  This change puts BC roughly on par with Alberta and Ontario but below Manitoba’s $127,000.

COVID-19 Vaccines in the Workplace

As COVID-19 vaccinations become more readily available, employers have lots of questions about how vaccines will impact their workplace. This article addresses some of the important issues at play before providing answers to some frequently asked questions about vaccinations and the workplace. That said, the rules and regulations around COVID-19 are fluid and ever-changing. While jurisdictions across Canada have similar rules and regulations, every jurisdiction is different. Employers are encouraged to review the most up to date information from public health officers.

Issues at Play

Vaccinations in the workplace engage many different areas of law including privacy, human rights, and occupational health and safety. It is important to discuss legal principles because they provide the foundation for what employers can (and cannot) do in the workplace.

Human rights are protected by legislation in every jurisdiction in Canada. They are quasi-constitutional which means that they generally take precedent over other legislation. Human rights legislation prohibits discrimination based on protected grounds. Mandatory vaccination policies engage the following protected grounds: religion (e.g., certain religions oppose vaccinations), mental disability (e.g., some individuals have medically-recognized needle phobias) and physical disability (e.g., some individuals are prone to allergic reactions resulting from vaccination). Individuals with a protected ground must be accommodated to the point of undue hardship.

Employee privacy rights are similarly protected in every jurisdiction in Canada. The hallmarks of privacy legislation are consent, reasonableness and proportionality. In short, an organization must not collect, use or disclose personal information about an employee without the consent of the individual or unless permitted by statute. But, even with consent, there are limits on what can be collected. The information requested by an employer must be proportional to the necessity of the information. Information must be collected in the least intrusive way possible. We see this principle play out in accommodation cases where an employee takes time off for a medical leave. The employer is entitled to receive the employee’s prognosis (i.e., the timeline for getting better) but not the diagnosis (i.e., the actual illness causing the absence). We also see this principle in random drug testing cases where the Supreme Court of Canada has held that random drug testing is generally not permissible even in safety sensitive environments because it is an unreasonable intrusion into an employee’s privacy.

With respect to occupational health and safety, every jurisdiction in Canada has distinct rules pertaining to the steps employers must take to ensure the health and safety of workers.

The above are issues that largely protect the interest of employees. But employee rights are not absolute and need to be balanced against workplace safety (including the safety of patients, clients, students and customers) and the legitimate business interests of an organization.

Influenza Vaccination Decisions

Although COVID-19 is novel, the issues underlying mandatory vaccinations are not. Arbitrators in British Columbia and Ontario have dealt with mandatory “vaccination or mask” policies in the health care sector. The decisions pre-date COVID-19 but are useful tools to predict where courts and tribunals will land on the issue of compelling vaccination. However, each case and workplace is unique and caution must be exercised in applying the principles gleaned from these decisions. Policies in the health care sector are subject to the “precautionary principle”, the essence of which being that a policy that otherwise infringes on an individual’s rights may be more justifiable given the heightened risks in health care settings.

The British Columbia health authorities implemented an immunization or mask policy in 2013 for health care workers in situations where there is an influenza outbreak. The union grieved alleging that the policy was unreasonable, discriminatory and contrary to the Charter of Rights and Freedoms. Both parties submitted voluminous amounts of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. The arbitrator reviewed the expert evidence and concluded that the policy was reasonable in health care settings as it represented the least intrusive way to ensure patient safety. Notably, the policy did not compel vaccinations. It offered employees a choice: vaccinate or wear a mask. In addition, the collective agreement between the parties expressly permitted the employer to require vaccinations in certain circumstances.

Interestingly, a very similar case was heard by an Ontario arbitrator in 2015. In that decision, a hospital implemented a vaccinate or mask policy similar to the one implemented in the British Columbia decision. The nurses’s union grieved the policy. Again, both parties led a significant amount of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. However, the arbitrator came to a completely different decision based on his interpretation of the expert evidence related to the use of masks in reducing the transmission of influenza to patients, and the policy was deemed unreasonable.

There are important distinctions between the influenza policies cited above and COVID-19 policies. First, influenza does not pose the same public safety risks as COVID-19. Second, the influenza decisions dealt with “vaccinate or mask” policies. Employees were offered a choice. In this way, the policies were much less invasive than a COVID-19 policy compelling vaccination.

The two arbitration decisions above also reflect how we anticipate courts and tribunals will deal with the issue of mandatory vaccination policies: courts and tribunals will likely reach different conclusions depending on the circumstances until the appellate courts or Supreme Court of Canada rule on the matter.

Frequently Asked Questions about Vaccines in the Workplace

Q:        Will the Federal or Provincial Governments mandate COVID-19 vaccinations?

A:         No. The Government of Canada and provinces have confirmed that vaccination is not mandatory. While some provinces have legislation permitting mandatory vaccinations generally, no jurisdiction in Canada has confirmed that they intend to enforce such legislation.

Q:        Can an employer compel its employees to get a vaccination?

A:         It is unlikely that employers will be permitted to compel vaccinations in most workplaces: such policies will be deemed an unnecessary intrusion into an individual’s privacy. Courts and tribunals will balance employee rights with workplace safety. Employers who implement a mandatory vaccination policy must be able to explain why occupational health and safety rules (such as physical distancing, working from home, and mask wearing) are not sufficient to protect worker safety and the employer’s legitimate business interests. Employers will also need to accommodate individuals who are unable to receive the vaccination for reasons related to human rights protections. Employers who implement mandatory vaccination policies should exercise caution as they may be liable if an employee develops an adverse reaction upon receiving the vaccine.

Mandatory vaccination policies will likely be more acceptable in industries with increased health or transmission risks, such as long-term care homes, camps and health care settings.

Q:        Will employees need to wear masks in the workplace after vaccination?

A:         This depends on whether occupational health and safety rules and local authorities require masks in the workplace. While (depending on the jurisdiction) masks are not mandatory in all workplaces, they are mandatory in many workplaces, particularly where it is not possible to maintain appropriate social distancing. Occupational health and safety regulations do not currently state that masks will not be required upon vaccination. At some point this will likely change; however, we do not have insight into when. While the efficacy of vaccination appears extremely high, it is still unknown whether vaccinated individuals can act as carriers and transmit the illness to others.

Q:        What can I do as an employer if an employee refuses to wear a mask post-vaccinations?

A:         Employees must follow occupational health & safety guidelines or risk discipline. Employees who are unable to wear a mask due to a protected ground under human rights legislation may require accommodation to the point of undue hardship but accommodation does not necessarily include allowing them to not wear a mask where a mask is required by law.

Q:        Can employees refuse to work with unvaccinated employees under occupational health & safety legislation?

A:         Very unlikely. Employees have the right to refuse unsafe work. However, worker compensation boards require employees who refuse unsafe work to identify how the unsafe work is contrary to occupational health and safety guidelines. Assuming the workplace is following proper occupational health & safety protocols, the workplace is “not unsafe”. In other words, if the workplace was “safe” prior to an employee being able to receive a vaccine, it is still “safe” for occupational health and safety purposes after an employee becomes eligible to receive a vaccine.

Q:        Are employees required to advise employers if they are vaccinated?

A:         If there is a valid vaccinate policy in place (e.g., health care workers), then yes. However, employers will want to take great strides to ensure the information is kept confidential and not disclosed. However, in many workplaces, requiring employees to advise of vaccination will constitute an unreasonable intrusion into an individual’s privacy.

Given the ever-changing landscape and myriad legal issues at play, employers are strongly encouraged to seek legal advice before implementing any vaccination policies.

This article is the first in a series about the intersection of family law and estate planning. In further articles the writer will set out several available planning options to help realize a client’s goals and intentions with respect to family law planning, wealth management and estate planning.

Who is my spouse anyway?

The answer to this question is not always clear and often requires an analysis of the relevant facts. The Courts generally employ a flexible approach and consider the diversity of relationships.

Before getting into the details of when two people are considered spouses, you may wonder about the consequences of inadvertently being in a marriage-like relationship.

Why does it matter?

From a family law perspective, it matters because subject to an agreement or order that provides otherwise, spouses are both entitled to family property and responsible for family debt regardless of their respective use or contribution (s. 56 of the FLA). In simple terms, this means that on separation there is a presumption that family property and family debt will be divided equally between spouses.

This may result in a division of property that is entirely contradictory to a person’s wishes.

From an estate planning perspective, it matters because the case law has established that a will-maker has a legal and moral obligation to provide for their spouse and for their children. 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-makers’ estate for the spouse of children (s. 60 of the WESA). In short, a court may vary a will-maker’s will if adequate provision has not been made for the will-maker’s spouse and children.

The bottom line – it is important to know when you are considered to have a spouse and plan accordingly.

The Definition of a Spouse

In British Columbia, there are two statutes (for the purpose of this article) that should be considered when answering the question of whether someone has a “spouse” – the Family Law Act, SBC 2011, c 25 (the “FLA”) and the Wills Estates and Succession Act, SBC 2000, c 13 (the “WESA”). The Courts have also weighed in by creating a multi-faceted framework to determine whether two people are spouses.

The WESA defines a spouse as follows:

When a person is a spouse under this Act

2(1)        Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

     (a)          they were married to each other, or

     (b)          they had lived in a marriage like relationship for at least 2 years.

…

Similarly, the FLA defines a spouse as follows:

Spouses and relationships between spouses

3(1)        A person is a spouse for the purposes of this Act if the person

     (a)          is married to another person, or

     (b)          has lived with another person in a marriage-like relationship, and

          (i)            has done so for a continuous period of at least 2 years, or

          (ii)           except in Part 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)          A spouse includes a former spouse

(3)          A relationship between spouses begins on the earlier of the following

     (a)          the date on which they began to live together in a marriage like relationship;

     (b)          the date of their marriage.

…

As you can see from the above definitions, both statutes define a spouse as a person who has lived with another person a marriage-like relationship for at least two years.

What is a marriage-like relationship?

In defining a marriage like relationship, the Courts have consistently relied on a case called Molodowich v Penttinen, (1980), 17 RFL (2d) 376 (Ont. Dist Ct.) (“Molodowich”). In Molodowich, the Court identified several factors which were indicative of whether parties live in a marriage-like relationship. The factors include: (1) Shelter; (2) Sexual and Personal Behaviour; (3) Services; (4) Social; (5) Societal; (6) Support (economic); and (7) Children. Under each of these factors the Courts ask various questions. For example, with respect to shelter the courts may consider whether the parties lived under the same roof and if so, whether the parties shared a bedroom.

The above factors are not meant to be a checklist but are considered together by the court to give effect to the subjective intention of the parties and the objective behaviour of the parties. The Courts have found that the analysis is fact specific and must be made on a comprehensive basis, having regard to all of the evidence.

There have been several cases since Molodowich that further support the position that no one factor is determinative and the relationship must be considered broadly and holistically.

For example, in the 2018 case of Robledano and Jacinto, 2018 BCSC 152, one of the parties sought a declaration that she was the will-maker’s surviving spouse. The parties lived together on and off for 20 years. However, at the time of the will-makers death the parties were not sexually active and they were not consistently living in the same residence. The Court concluded that it was not fatal to the plaintiff’s claim that the parties did not consistently live together and justified the couple’s unusual living arrangements. The parties were found to be spouses under the definition in the WESA.

Take Away

In summary, spousal relationships are varied and structured differently. There is not one factor that sufficiently describes a marriage-like relationship so individuals must consider their circumstances and assess whether they could have a spouse.

If a person is seeking to protect their assets and have greater certainty from a family law or estate planning perspective we suggest that you speak to a lawyer regarding the most effective planning options.

The B.C. government is taking over the running of the provincial home owner grant from municipalities. The home owner grant reduces the amount of property tax you pay for your principal residence. The grant is available to homeowners who pay property taxes to a municipality, or to the province if they live in a rural area.

Effective 2021 all home owner grant applications must be submitted directly to the B.C. provincial government through a secure online application. Previously, home owners would submit their applications through their municipal offices.

As of February 16, home owners can apply for their current year or their retroactive home owner grants online at Home Owner Grant.

Home owners are reminded to keep their property assessment notice from BC Assessment or property tax notice from their municipality, as they will need their roll and jurisdiction number from their notice to apply for the grant.

If the home owner would prefer to apply over the phone, they can call the contact centre toll-free at 1 888 355 2700 to speak with an agent. The contact centre will begin taking applications over the phone as of February 16.

Municipalities will no longer accept any applications.

Patrick Bobyn is a solicitor practicing in the areas of business law and real estate. His real estate experience includes assisting clients with purchasing and selling real property, financing, and providing general advice as it relates to real estate law. Please do not hesitate to contact Patrick at bobyn@pushormitchell.com.

If you have been appointed Executor in a Will, there are a wide range of obligations if you accept the position of Executor.  You can decline to act as Executor by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for the representation grant. If you are Executor, there are a few big “No-No’s” you will want to avoid as you take on this onerous role, both involve tampering with the original Will itself.

1. Do NOT write on the Will. Seems obvious? In acting for many Estates over the last decade, I have seen it happen. The Executor thinks they are being helpful, but it simply adds another layer of paperwork to the probate application, in the way of explanatory documentation, which can be expensive.
2. Do NOT remove the staples! Guard the original Will diligently and DO NOT allow anyone else to remove the staples either (unfortunately this does happen when you hand it to others to possibly photocopy, such as the financial institution or insurance company). Again, if staples are removed, it just creates an extra burden on the Executor as they will need to provide an explanation / Affidavit / evidence to the Court as to why the staples were removed, which can be very difficult. The Court has to be satisfied that the Will has not been interfered with.

The safest and best place for the original Will is most often in the vault of the law firm who did the original Will, and we always recommend our client’s Wills are retained in our vault for safekeeping. We register the location of the original Will(s) at Vital Statistics, Wills Registry. The original Will is going to be required for the probate application to Court in any event, so the law firm is an excellent place for safekeeping it.

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 real estate matters or 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.

In my earlier article, Defamation, the Protection of Public Participation Act and Strategic Lawsuits Against Public Participation, I wrote about the Protection of Public Participation Act (the “PPPA”), a piece of legislation  aimed at combating strategy lawsuits against public participation (“SLAPPs”). And, in particular, about the stated intention of the PPPA to guard against the vulnerability in the legal system of SLAPPs being used to censor public opinion, intimidate people and silence critics.

Since my initial article, cases continue to be published which explore the practical application of the PPPA including Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 (CanLII) (“Lyncaster”).

In Lyncaster the Plaintiff was a member of the BDSM or kink community in the lower mainland. The Defendants were a society dedicated to educating and advocating for members of the kink community and several of its Directors. The complaint of the Plaintiff centered on a letter and statements made by the Defendants which variously stated that the Plaintiff invited a minor to his home to discuss BDSM, that he engaged in potentially predatory sexual behaviour and engaged in BDSM practices without consent.

The Defendants applied further to s. 4 of the PPPA seeking a dismissal of the Plaintiff’s claim on the basis that their comments were protected under the PPPA. As the Court framed things, there were two stages of analysis engaged as a result:

1. the Defendants were required to satisfy the Court that their statements related to a matter of public interest. If the Defendants failed to do so, their application to dismiss the claim would be denied; and
2. if the Defendant satisfied the first stage, the onus would shift to the Plaintiff to satisfy the Court that there are grounds to believe that his claim had substantial merit and there was no defence to same. This required the Plaintiff to also show that there is public interest in allowing the claim to continue by demonstrating that the harm potentially suffered by him if his claim did not proceed outweighed the public interest in promoting the value of freedom of expression.

Citing several other decisions, the Court in Lyncaster set out the following principles applying to the consideration of whether a matter is of public interest:

1. A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest.
2. The phrase “public interest” must be given a broad, although not unlimited, interpretation.
3. The public interest is to be determined objectively, having regard to the context in which the expression was made and the entirety of the relevant communication.
4. An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression.
5. The characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made.
6. Neither the merits of an expression, nor the motive of the author in making it, should be taken into account in determining whether an expression relates to a matter of public interest.
7. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or to which considerable notoriety or controversy has attached.

Applying these principles, the Court found that the Defendants’ statements in Lyncaster concerned matters of public interest. As a result, the Court moved on to whether the Plaintiff satisfied the merits-based second stage of the analysis.

The Court summarized its task as follows: the Plaintiff was required to prove “…on a balance of probabilities, that there are reasonable grounds to believe that his defamation claims are legally tenable and supported by evidence, which could cause a reasonable trier of fact to conclude that his claims have a real chance of success.” The Court found that the words complained of met the test of being defamatory such that the claim had substantial merit. The defamatory words were published in a potentially public way meaning that they may have reached a very large audience. The defamatory words included thinly veiled allegations of sexual criminal misconduct. The conclusion being that the Plaintiff met the onus of proving a reasonable judge could conclude the claim for defamation should succeed.

Lastly, the Court engaged in a balancing of the public interesting in continuing the proceeding vs. protecting the Defendants’ statements. The Court held that the Plaintiff could establish evidence of harm suffered by the defamatory statements through incomplete evidence and common sense reading of the claim. On this relatively low threshold, the Court found that the Plaintiff had satisfied his obligation to demonstrate that he may have suffered some financial, physical, psychological and social harm. The Court also noted that the circumstances were not the type of circumstances the PPPA is aimed at, which are generally instances of a more powerful and financially backed entity using its power and resources to shock and deter critics through use of SLAPPs.

In summary, the Court found that the Plaintiff demonstrated that the harm he likely suffered, in all the circumstances, was sufficiently serious that the public interest in permitting him to continue his defamation claim outweighed the public interest in protecting the Defendants’ words.

Lyncaster is a helpful case for both plaintiffs and defendants to defamation proceedings to understand the application of the PPPA to such proceedings and the onus and burden or proof on both parties at various stages of analyzing how the PPPA might be engaged by a defamation proceeding. It is important to clarify that the PPPA does not provide absolute protection to any defendants for their potentially defamatory conduct, but needs to be applied carefully and while considering a number of factors.

One of the issues that can frequently come up, particularly when couples separate later on in life and when they have higher net worth assets is the question of “double dipping”.

The question is, if the spouses divide their property such that one spouse is bought out and paid compensation for their interest in an asset, how does that impact on income and any spousal support entitlement in the future?

The Supreme Court of Canada considered this question as it relates to pensions in Boston v.  Boston 2001 SCC 43.  In brief, the facts of this case were as follows:

• It was a 36 year marriage;
• The wife was a homemaker and primarily responsible for raising 7 children, while the husband pursued his career outside of the home and supported the family.
• The parties agreed when they separated that the wife would receive an equalization payment for her interest in the husband’s pension and the husband would retain his pension for the future. The husband would then pay spousal support in an agreed upon amount over time indexed to inflation.
• The husband sought to vary this agreement once he started collecting his pension based on the material change in circumstances as the wife had prudently invested the equalization payment that she received, which generated income for her. He claimed that it was double dipping for the wife to have been compensated for her share of the pension and then additionally receive spousal support based in part on the income that he received from her portion of the pension that had already been equalized in the division of property.

Ultimately the court did agree with the husband that the wife could not be permitted to “double dip” in this respect, and the spousal support paid to the wife was reduced to be based only on the husband’s income from the portion of the pension that had not been equalized.

The Supreme Court of Canada did make it clear that there would be some exceptions to this approach in that income from a pension that had been equalized could still be considered in the spousal support analysis if;

• the payee had used their equalized assets prudently, in order to produce income; and
• despite this there was still some economic hardship for the payee that was directly related to the breakdown of the relationship and the payor had the ability to pay.

In the case M.C.D. v. D.A.D. 2017 BCSC 1832, one spouse was paid an equalization payment for their interest in the business.  The spouse retaining the business argued that they should not pay spousal support based on the income generated from the business in the future, as the other spouse had already received compensation through the division of assets. The argument was that for the payee spouse to receive further benefit from the income generated by the business would constitute “double dipping”.

The Court rejected that argument in this instance on the basis that when a spouse retains marketable assets with an income yield as part of the equalization of family assets, they cannot eliminate such income from the determination of their capacity to pay as it relates to spousal support.

There is a clear distinction made between pensions which are considered to be liquidating assets and other types of assets, such as a functioning business, which are marketable assets and have an ongoing income yield.

One of the distinctions is that a successful business can produce income on an ongoing basis that can be spent without depleting the value of the business.

It is important when dealing with these types of assets and the very complex nature of spousal support, to consider how the division of property could impact on spousal support in the future.

A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. Living Will language can also be incorporated into a Representation Agreement which provides the named representative the legal right to refuse specific medical treatment or any treatment at all.

A Representation Agreement gives you the opportunity to appoint a person of your choice to make health care decisions for you on an ongoing basis. You set out in what circumstances consent to treatment is to be given on your behalf by your representative and in what circumstances it is not to be given. As well, you can specify acceptable types of treatment.

The Representation Agreement enables you to choose who will make the decisions regarding your personal care and health matters when you cannot. As well, it provides you with the flexibility to choose more than one person so that two or more people have to act together to make the necessary decisions. You can also stipulate whether one representative can break a tie or has a veto; and choose an alternate representative in the event the person(s) you have chosen are unable or unwilling to act at the time.

A Representative who has authority over an adult’s personal care or health care is under strict obligations in regards to record keeping. He/she must keep the following records in relation to personal care or health care of the adult:

• a copy of any record made by the adult of the adult’s instructions, wishes, beliefs/values;
• if there are any changes in the adult’s residence, or needs with respect to personal or health care, the Representative must record the nature of the change and the decision made by the Representative in respect of it;
• if the Representative made a major health care decision or admitted the adult to a care facility, the Representative must describe why the decision was made and the date of that decision;
• if the Representative decides to restrict a person from associating with the adult, the Representative must explain why; and
• if the adult was physically restrained, moved or managed, the Representative must describe who restrained the adult and why.

Proper planning is essential. Representation Agreements provide a great deal of flexibility when it comes to planning for incapacity in the delegation of decision-making authority for personal care and health matters.

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, Wills & Estates and Intellectual Property at Pushor Mitchell LLP in Kelowna.

In British Columbia, the Employment Standards Act, R.S.B.C., c. 113 (the “ESA”) provides significant employment rights for pregnant women. Under the ESA pregnant women have the right to take an unpaid leave of absence (up to 17 consecutive weeks) regardless of their length of employment. An employer must not because of a woman’s pregnancy terminate her employment or change a condition of her employment without her written consent. As soon as the maternity leave ends, the employer must place the employee in the position they held before taking maternity leave or in a comparable position. Therefore, employees who find changes have been implemented to their jobs or who find their position has been eliminated upon their return from maternity leave may make a complaint against an employer at the Employment Standards Branch.

An employee may also be able to file a complaint for discrimination with the BC Human Rights Tribunal if an employee is fired, laid off, denied opportunities or experiences other negative treatment because they are pregnant or taking maternity leave. Although the Human Rights Code, R.S.B.C., c. 210 (the “Code”) does not specifically enumerate pregnancy as a prohibited ground of discrimination, the Supreme Court of Canada’s decision in Brooks v. Canada Safeway Ltd., 1989 CanLII 96 made it clear that, “discrimination on the basis of pregnancy is a form of sex discrimination.” To succeed in a claim for discrimination an employee will need to establish:

• The employee was pregnant;
• The employee suffered some adverse treatment in the workplace; and
• The employee’s pregnancy was a factor in the adverse treatment she received.

The employee’s pregnancy needs only to be one factor in the adverse treatment; it does not need to be the only, or event the primary factor, for an employee’s complaint for discrimination to be established.

If you are an employee experiencing any negative treatment from your employer because of your pregnancy you should consult with an employment lawyer to better understand your rights.

Under the Builders Lien Act (“BLA”) a statutory right is created to filed builders liens for work performed and/or materials supplied to an improvement. Understanding this seemingly simple concept requires applying the following terms defined in the BLA:

• “work” means “…work, labour or services, skilled or unskilled, on an improvement…”;
• “materials” means “…movable property that is delivered to the land on which the improvement is located and is intended to become part of the improvement, either directly or in a transformed state, or is consumed or used in the making of the improvement, including equipment rented without an operator…”; and
• “improvement” is given a non-exhaustive definition of including “…anything made, constructed, erected, built, altered, repaired or added to, in, on or under land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under land.”

The recent decision of Shelly Morris Business Services Ltd. v Syncor Solutions Limited, 2020 BCSC 2038 (CanLII) is illustrative of some of the difficulties that can arise in the interpretation and application of the definitions of the BLA.

In Shelly Morris the defendant had contracted with the plaintiff to provide interior design and construction management services for two office buildings. Pre-construction work including site visits, design and tendering was performed before further work was put on hold due COVID-19. The defendant issued two invoices for its work, which were not paid in full. In July 2020, the plaintiff advised that it would not continue with the contracts. In August 2020 the defendant filed builders liens for its unpaid invoices against the project lands.

The decision in Shelly Morris came about as a result of the plaintiff seeking to have the builders liens on title cancelled. In rendering its decision, the Court first went through the definitions detailed above. It held, per earlier case law, that the object of the BLA was to “… prevent owners of the land getting the benefit of buildings erected and work done at their instance on their land without paying for them…”. The Court also found, based on previous case law, that “Because a builders lien is a creature of statute, the legislation must be interpreted strictly, insofar as it creates a preference in favour of one creditor over another…”

The Court noted that “improvement” was inclusive in that the examples of improvements given in the legalisation did not preclude additional meanings to the word. The Court also noted previous case law that had held that “improvement” means an improvement to the property itself; work and construction must commence. Similarly, “improvement” does not include intended construction.

The Court ultimately determined that, since the improvement didn’t commence, the defendant’s pre-construction efforts and preparation did not constitute an improvement and, therefore, were not lienable. The Court did observe that the defendant’s work not being lienable did not mean that it was not recoverable in contract.

Shelley Morris is illustrative of how the strict requirements of the BLA can be difficult to understand and difficult to follow. While the defendant’s work was certainly intended to become part of an improvement, it had not become part of an improvement yet and was not lienable. As may be discerned from the decision, had a shovel hit the ground of a nail been hammered that required planning, such planning would be lienable (although there would still be a question of how much planning/pre-construction related to an actual improvement).

For related cases about some of the strict requirements of the BLA, please also consider the following articles:

• Builders Liens: Abuse of Process, 21-Day Notices and Strict Compliance
• Discharging a Builders’ Lien on Posting of Security: What is Sufficient Proof?
• Builders Liens: The Consequences of Less than Strict Compliance
• Builders Liens: Strict Compliance or Lose Your Lien

As discussed in my previous article, COVID-19, Builders Liens and Limitation Periods, since March 26, 2020, limitation periods in BC were suspended. This suspension was listed as of April 15, 2020 for builders lien issues.

By way of simple introduction, a limitation period is generally two years and requires that a party commence a lawsuit within two years of knowing or having the information to know they have a cause of action, or basis for a lawsuit, or forever lose the right to commence litigation. When a limitation period begins to run, how a limitation period may be extended and various restrictions and extensions of the basic two-year limitation period are complex subjects that need to be considered in each potential action but are beyond the scope of this article.

In a new provincial order made on December 21, 2020, the provincial government announced that the suspension of limitation periods is ending as of March 25, 2021.The provincial government released an explanatory document explaining the technicalities of this important legal development.

The suspension of limitation periods was formerly tied to the state of emergency, with the intention being to lift the suspension when the state of emergency was lifted. With the recent announcement, the limitation periods suspension will be lifted on March 25, 2021 regardless of whether the state of emergency in BC lifts before or after that date.

The suspension of the limitation period for one year makes calculating the time remaining in a limitation period simple: just add one year.

By way of example:

• a limitation period that expired before the suspension remains expired. By example:
  • payment under a contract was not made when due on February 26, 2018;
  • the limitation period was on February 26, 2020;
  • the limitation period expired on February 26, 2020 if no action was commenced;
• a limitation period that would have expired during the limitation period suspension has the same time remaining after the suspension as it did before, resulting in one year being added to the limitation period. By example:
  • a person was in a motor vehicle accident with an identified at-fault driver on April 26, 2018;
  • the victim’s limitation period would have expired on April 26, 2020 but for the suspension;
  • the victim had one month left in their limitation period before the suspension period and will have one month left afterwards;
  • the victim’s limitation period expires on April 26, 2021;
• a limitation period that would have expired after the limitation period suspension also has the same time remaining after the suspension as it did before, resulting in one year being added to the limitation period. By example:
  • a new home owner discovered on June 26, 2019 that the vendors misrepresented that the house they sold had no water damage when they knew that it did have water damage;
  • the new home owner’s limitation period would have expired on June 26, 2021 but for the suspension of the limitation period;
  • the new home owner’s limitation period expires on June 26, 2022;
• a limitation period began to run during the suspension starts to run when the suspension is lifted. By example:
  • a supplier fails to deliver product when required on September 26, 2020;
  • the limitation period would have expired on September 26, 2022 but for the suspension;
  • the limitation period starts to run when the suspension is lifted on March 25, 2021; and
  • the limitation period expires on March 25, 2023.

This new announcement provides certainty for calculating the expiration of limitation periods. Previously, it was unknown how and when the suspension would be lifted. It is critical that counsel and clients who may have previously relied on the suspension of the limitation period to “sit” on claims to appreciate and calculate when action must be taken to preserve a limitation period. It is also crucial for parties to understand that, for the next couple of years, claims may be commenced later than expected because of the extended limitation periods.

More complicated limitation issues such as acknowledgment of claims that might renew the limitation period and how those interact with the newest announcement should be carefully considered with the wording of the announcement but are beyond the scope of this article.

It should be noted that the discretionary power provided to entities which have statutory power to waive, suspend or extend a limitation period will continue until 90-days after the state of emergency is lifted, although the limits of that discretion are beyond the scope of this article.

If you are concerned about how any limitation period concerns might affect your legal interests, we are happy to assist.

As discussed in my previous articles, Builders Liens: The Consequences of Less than Strict Compliance and Builders Liens: Strict Compliance or Lose Your Lien, the Builders Lien Act (“BLA”) creates extraordinary remedies and, as such, requires extraordinary attention be paid to complying with its requirements. Issues about the strict procedural requirements of BLA were at the center of the recent decision of Toska Woodworking Inc. v Balazadeh-Nayeri, 2020 BCSC 1378 (CanLII).

In Toska the plaintiff was a contractor was retained to supply and install custom cabinetry and millwork in the defendants’ home. The parties fell into dispute and a builders’ lien for a little over $92,000 was filed against the homeowners’ property on February 22, 2020. The parties continued to try to resolve their differences unsuccessfully. Eventually, the homeowners served a 21-day notice on the contractor.

Under s. 33(1) of the BLA, a party with a builders’ lien is required to commence an action in the Supreme Court and file a certificate of pending litigation (“CPL”) within one year from the date of the filing of a builders’ lien to maintain the right to claim the lien. This process is known as “perfecting” a lien. Under s. 33(2), a property owner or another lien claimant can serve a 21-day notice shortening the time in which a lien needs to be perfected to 21 days after the effective service date of such a notice. Failing to perfect a lien within the applicable time limit extinguishes the right to maintain a builders’ lien although the underlying debt claim still exists without the additional relief and benefits that flow from a lien.

In Toska after the 21-day notice was served the contractor filed a Supreme Court action in time but did not file a CPL in time due to confusion created with the Land Title Office and COVID-19 protocols put in place. As part of an apparent effort to protect its lien claim, the contractor filed a second lien in July 2020.

In analyzing its analysis, the court noted that there was not good evidence before it about the underlying project costs and details. The issuance of the occupancy permit did not determine whether the first lien was filed within the time requirements of the BLA and the parties continued to negotiate about the project through to April, 2020. In the circumstances, the Court found that the first lien was filed in time.

In analyzing the failure of the contractor to perfect its claims per the 21-day notice, the Court held that the first lien remained valid because the service address for the 21-day notice did not match address for service in the first lien. As such, the first lien would have been struck for failing to file a CPL in time, but the 21-day notice was defective and did not trigger the requirement to perfect the builders’ lien early. Since there was no effective 21-day notice and the one-year ordinary perfection period had not passed, the first lien remained valid.

On the second lien, the court found that, whether nor not the period in which a valid builders’ lien could be filed had expired, the filing of a second lien to attempt to recover from a failure to perfect another lien was not tolerable. The filing of a second lien was found to be an abuse of process and was ordered cancelled along with any CPL filed further to same.

The Toska Woodworking Inc. v Balazadeh-Nayeri is an example of how easy it is for both claimants and defendants in builders’ lien disputes to make minor errors which can have significant impacts on the rights and remedies available to them. Had the owners in the case served a proper 21-day notice, they could have cleared their title from any builders’ lien claim and CPL. Similarly, the builder exposed itself to potentially substantial cost and other consequences for trying to salvage its failure to perfect its lien as required by what it thought was a 21-day notice by filing a second lien. Timely legal advice respecting builders lien concerns is always a prudent course of action.

On December 1, 2020 the TSX Venture Exchange (the “Exchange”) announced long awaited changes to its Capital Pool Company (“CPC”) program. The revised program is intended to increase the flexibility of the CPC program, reduce regulatory burdens and improve the economics for CPC participants.

Below is a summary of the key changes to the program.  For a comprehensive list of all changes please see this link.

1. Increase in Capital Raising Thresholds.

Capital limits have been increased from $500,000 to $1,000,000 in respect of seed capital raised below the IPO price and from $5,000,000 to $10,000,000 in aggregate funding.  The increased limits should give CPCs more flexibility when pursuing targets.

2. Removal of the 24 Month Timeframe for Completing a Qualifying Transaction.

Under existing CPC program, issuers that fail to complete a Qualifying Transaction within 24 months are downgraded to the NEX board of the Exchange.  This 24 month window has been eliminated under the new CPC policy.

3. Easing of residency restrictions for Directors and Officers.

The new CPC policy eases residency restrictions on directors and officers, allowing for the inclusion of international directors, as long as the majority of the management team is from Canada or the United States.

4. Reduced Escrow Restrictions on Founders.

The new CPC policy has reduced the escrow restrictions on founders and seed capital investors from a 36 month restriction to an 18 month restriction.

5. Reduced Minimum Distribution Requirements

The new CPC policy provides for reduced minimum requirements for share distributions. Specifically, CPCs will now only need a public float of at least 500,000 shares (compared to 1,000,000 previously) and a minimum of 150 shareholders (compared to 200 previously).

Transitional Provisions

The revised CPC Program will take effect on January 1, 2021, however existing CPCs can take advantage of certain provisions of the program depending on where they are at in their lifecycle and subject to complying with certain transitional requirements.

If you are interested in learning more about Capital Pool Companies, taking your existing 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 or Brendan Bachewich at bachewich@pushormitchell.com or by phone at 250-869-1122

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

An Executor/Trustee has a wide range of obligations and responsibilities to fulfill. When doing your Estate Planning and choosing an Executor/Trustee, you have a number of important considerations to keep in mind. In a nutshell, the choices available are: Corporate Trustee (like a Bank or Trust Company), a family member/friend (or more than one, named as Co-Trustees), or another willing professional you know, such as your Accountant or Lawyer. (A Bank, Trust Company, Accountant and Lawyer are referred to hereafter simply as “Professional Trustee”.)

The first thing you should do, if you are in the process of making such important decisions, is to contact an estate planning lawyer to discuss the various issues involved. A good estate planning lawyer is worth more than the documents they create. Your answers to the questions asked by your estate planning lawyer, and your decision making process triggered by those questions, documented by a careful lawyer, will make all the difference in the world to your actual written plan. The planning behind the documents is what gets you the results you desire.

The entity you choose to fill this role will have a big job to do. If it is a Professional Trustee, you will meet with them to go through your Estate and sign Compensation Agreements. If you are choosing a family member/friend, it is a very good idea to make them aware that you have chosen them and ensure that they are willing, comfortable and able to fill that role.

Whether you are choosing an inexperienced family member/friend or a Professional Trustee, that person will be working with your beneficiaries for a significant amount of time (sometimes well over a year) as they administer your Estate and deal with your assets. It is very important that you consider the myriad of issues when deciding who your Executor/Trustee will be, a few of which are as follows:

• Is the job of looking after your Estate going to be very hard on a loved one who has just lost YOU? This can be overwhelming to deal with, coupled with grieving, even though they may feel duty bound when you ask them to take on that role;
• What about compensation? Compensating a loved one to do this job is often frowned upon by other beneficiaries who are not privy to what the role involves. They simply sit back and wait for their inheritance to come through. Considering the level of responsibility that an Executor/Trustee takes on, shouldn’t your loved one be compensated? It is highly likely that the role of Executor/Trustee will take away from the usual way your loved one makes a living. I have seen family members take on this role, only to fight with their siblings over the details, grow weary of trying to maintain family harmony, grow tired of trying to sustain their own family life/job while serving your Estate, yet deny themselves compensation. They eventually grow irritated, bitter and resentful over the thankless hours they have spent accounting and documenting and gathering your assets, that they end up losing their sibling (or other) relationships. Family harmony is extremely difficult to maintain without an objective perspective;
• If you don’t want to burden family members/friends with this job, or you simply don’t feel that you have anyone appropriate to appoint, and your Estate is of a certain value to warrant hiring a Professional Trustee, then a Professional Trustee is a very good option for you. Their experience and objectiveness is of huge value to Estates. Each Professional Trustee will have a fee structure that you should carefully review. Their fees may be charged monthly, quarterly or annually based upon the value and type of the assets they are managing in a Trust or Estate. Some Professional Trustees also charge hourly fees or flat fees for certain activities or situations. It is very important to closely review the Professional Trustee’s fee schedule so that you understand how and what fees will be charged to your Estate. If the assets in your Estate do not warrant the level of fees to be charged, then obviously this is not a good option for you.

All of the above should be discussed with your estate planning lawyer as you embark on the estate planning process. Their guidance on the above will be invaluable to your Estate, and your beneficiaries, who will ultimately be the ones left behind and thus dealing with your choice of Executor/Trustee.

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 would be more than happy to assist you.