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A recent case from the Ontario Court of Appeal sets out an interesting chain of events. In the case of North Elgin Centre Inc v McDonald’s Restaurants of Canada Limited, 2018 ONCA 71, the tenant (“McDonald’s”) had entered into a 20-year lease with North Elgin Centre Inc. (the “Landlord”) and had spent time and money on building their restaurant.

The lease had a term that the parties could renew for two additional 10-year terms. In order for the renewal to come into effect, McDonald’s was required to provide notice of its intention to renew at least 12 months before the expiry of the existing term. Upon notice being provided, the parties were to negotiate the new rental rate and if they could not agree at least 9 months prior to the expiry of the term, then McDonald’s could either revoke its notice of intention to renew or choose to go to arbitration to determine the new rental rate.

Was the lease renewed?

McDonald’s provided the Landlord with proper notice of its intention to renew but then the parties could not agree on the rental rate. The time limit of 9 months before the end of the term came and went without McDonald’s taking the next step of either revoking its notice of intention to renew or choosing to go to arbitration. Therefore, the lease became uncertain as to the rental rate and therefore was unenforceable.

However, the analysis does not end here. For the Landlord to rely on the fact that the lease was not renewed, the Landlord would have had to actually treat the lease as terminated. The Landlord did not do so.

Did the Landlord waive its right to terminate the lease?

Rather, the Landlord told McDonald’s that it was working on its proposal for the new rental rate. More than two months after the expiry of the 9-month period, the Landlord told McDonald’s that it was ready to discuss the rental rate for the renewal term. Two days after that meeting, the Landlord sent a letter to McDonald’s saying that it assumed McDonald’s intended to let the lease expire since it had not chosen to go to arbitration (unfortunately, we do not have information on what occurred at the meeting between the Landlord and McDonald’s).

Accordingly, by continuing to negotiate with McDonald’s after the expiry of the 9-month period, the Landlord waived its right to rely on termination of the lease because McDonald’s did not comply with the 9-month timeline to either revoke its notice of intention to renew or choose to go to arbitration to determine the new rental rate. So, the lease had not been terminated.

Did the Landlord revoke its waiver?

The Trial judge initially found that the Landlord did revoke its waiver. However, the Court of Appeal overruled the trial decision holding that the Landlord did not take the proper steps to revoke the waiver of its right to terminate the lease. A party may revoke its waiver of rights, but certain steps must be taken in order to do so. This is to provide fairness to the other party or parties. The Court of Appeal held that for the revocation of the waiver to be effective two steps must be taken:

  1. the notice of the revocation of waiver must be clear that the party who granted the waiver will insist upon the strict enforcement of its legal rights; and
  2. the notice must provide the other party with an opportunity to cure any defect resulting from its reliance on the waiver.

In this case, these steps mean that the Landlord would have had to provide clear notice to McDonald’s that it would be insisting on the strict enforcement of its right to terminate the lease since the parties could not agree on the rental rate and the Landlord would have had to provide McDonald’s with a reasonable period of time to fix the breach that McDonald’s did not refer the determination of the rental rate to arbitration or decide to withdraw its notice to renew the lease.

The Landlord did not take the steps set out above and accordingly, the Court of Appeal referred the issue of fair market rental rate to arbitration.

The main takeaway for both landlords and tenants in commercial leases is to ensure that you pay attention to all terms in the lease and if you intend to rely on them, be sure to follow them exactly and do not delay in enforcing your rights.


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

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

Paul also helps his clients plan for their future with estate and incapacity planning.

For more information please contact Paul Tonita at 250-869-1126 (direct line) or email him at tonita@pushormitchell.com.

Often times parties will turn to friends, family, acquaintances or business relations to seek funds to borrow rather than a bank or other lending institution. The debts that arise from such borrowing are frequently supported by a promissory note to confirm the debt in writing. Issues can arise when there is a failure to commit all the agreements made between the parties to writing or there is otherwise a disagreement about what was or was not included in a promissory note.

Such disagreements can arise during the performance or part-performance of the promissory note as was the case in Turpin v Constantinescu, 2018 BCSC 1326 (CanLII).

In Turpin, the defendants had borrowed $457,540.16 from the plaintiffs and executed a promissory note for $500,000. The court found that, while there may have been an intention to advance funds beyond the $457,540.16, there was insufficient proof that ever happened. In other words, the court found that the principal debt represented by the note was $457,540.16. The promissory note was backed by a security interest registered on the defendants’ home.

The primary issue in dispute was whether a lump sum payment of $375,000 made by the defendants to the plaintiffs when the defendants sold their home was a settlement of the debt represented by the promissory note as was alleged by defendants or was a partial payment as the plaintiffs alleged. In particular, the defendants said that the plaintiffs were experiencing financial hardship and accepted the $375,000 as a final settlement.

The court found that the burden of proof lay with the plaintiffs to show that after the payment of the $375,000, that money was still owed under the promissory note. The court held against the plaintiffs. It found that the plaintiffs were not reliable or credible witnesses; giving inconsistent and implausible evidence. There was no evidence that there would be repayment beyond the $375,000 and the discharging of the supporting security and the lack of replacement of that security with any form of security for the balance of the funds allegedly owing under the note were consistent with the $375,000 being a full and final settlement.

Turpin v Constantinescu is a sharp reminder of the importance of ensuring that no agreement reached with another party is left to interpretation or guesswork at a later date. It may have been that the plaintiffs intended for the defendants’ debt to survive the payment of the $375,000, but they failed to commit that intention or agreement to writing or to ensure that there was evidence to support such a position. The case is important to consider when parties are accepting partial payments on debts and to ensure that nothing about such partial payments might be construed as a settlement of a debt unless intended as a such. When in doubt, commit agreements and the intended legal effects of certain actions to writing.


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

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

WorksafeBC (the “Board”) is the provincially legislated body having exclusive jurisdiction to adjudicate all issues related to most worker injuries occurring in the province. There are some exceptions which will be dealt with in subsequent articles. This means that injured workers usually cannot sue the party that may have caused or contributed to their injury which in most cases would include other employees and the employer. This also means that employees can receive compensation even if their injuries result solely from their own negligence.

Pushor Mitchell is one of the few BC firms which is prepared to take on cases for injured workers. We find that most workers are baffled by the process and most often accept decisions made by the Board thinking that it is futile to challenge them.

Our experience has been in most cases that outcomes can be improved in a variety of ways. These will be discussed in greater detail in future articles but here are some examples:

  • pension awards can be increased by obtaining a greater percentage disability award
  • pension awards can be increased by obtaining a loss of earnings (LOE) pension
  • requests can be made to the Board to require it to adjudicate losses or benefits that it hasn’t considered
  • requests can be made to continue pension benefits beyond age 65

The bottom line is that we have often been able to have claims accepted that were initially rejected by the Board and in some cases we have been able to greatly increase the amount of pensions awarded.

Unfortunately many workers do not realize that they have to carefully scrutinize letters from the Board to ensure that they fully understand the decisions. Workers only have 90 days to challenge Board decisions and then only 30 days to appeal any resulting review decisions. It is possible, but very difficult, to get extensions of time to challenge decisions.

Over the next few months in Legal Alert we will be discussing strategies in dealing with the Board, specific challenges to decisions and cases that the Board does not have exclusive jurisdiction over.

Until recently there was considerable uncertainty in Canada when it came to how U.S. Customs and Border Protection would treat Canadians who were soon to be lawfully employed in the marijuana industry and who would be seeking entry to the U.S.

Fortunately, on October 9, 2018, U.S. Customs and Border Protection issued a formal statement, which is reproduced in part below, on Canada’s Legalization of Marijuana and Crossing the Border:

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border

The upshot is that while this certainly assisted in clarifying matters for Canadians who are or soon to be employed in the marijuana industry in Canada and wanting to travel to the United States it left several questions answered.

Namely, which activities will be considered “unrelated to the marijuana industry”? For example, would a Canadian citizen or permanent resident attending a marijuana related tradeshow in the United States be deemed inadmissible?

Given this ongoing uncertainty it is a good idea to consult with a U.S. immigration lawyer prior to planning a trip to the United States.

It is time to require seatbelts on school buses. Studies have shown they would save lives. A recent investigation by the CBC’s Fifth Estate shows how that thousands of injuries and numerous child deaths could have been prevented across Canada and the United States in the past three decades had school buses been equipped with seatbelts.

Despite the clear evidence Transport Canada has been at the forefront of a North American-wide campaign for the last 35 years against the use of seatbelts on school buses. They base their position largely on a 1984 study that asserted they are not only unhelpful — they may also cause injuries.

The four-month Fifth Estate investigation has exposed serious problems with that study, and reveals that government officials have known for years that seatbelts save lives and prevent injuries on school buses — information the department has kept hidden from the public. This is unacceptable, and clearly puts children’s safety at risk.

In the wake of the CBC investigation, it appears that Transport Canada may be changing its rigid position against seatbelts. After being told of results of The Fifth Estate‘s research, Transport Canada’s chief of crashworthiness research recently said seatbelts are “a good first step” towards improving school bus safety. While seatbelts don’t prevent all injuries and deaths, she agreed they “do prevent ejection.”

Suzanne Tylko, a senior engineer with Transport Canada, conducted a crash test in 2010 that concluded the high-back padded seats in school buses are not enough to keep kids safe in the event of a side-impact crash. Those tests results were never released publicly. (CBC)

The Fifth Estate spent several weeks compiling and reviewing numerous studies from across North America prepared by academics and test crash facilities, examining computer modelling and interviewing safety experts and scientists. The research showed repeatedly that seatbelts would have prevented numerous serious injuries and deaths in school buses.

In the United States, such findings have already gained widespread acceptance. Safety organizations like the National Transportation Safety Board and the National Safety Council are now unequivocal that seatbelts on school buses save lives and prevent injuries. In a speech in 2015, the head of the U.S. equivalent of Transport Canada — the National Highway Traffic Safety Administration — put it bluntly. “There is no question that seatbelts offer improved safety. Seatbelts [on school buses] will save the lives of children who we might otherwise lose in crashes,” Mark Rosekind said.

Texas is now one of eight states that have mandatory seat belt legislation for school buses. (CBC)

The Transport Canada test crash film claimed that a system called compartmentalization — the use of high-backed padded seats — was enough to keep children safe. What’s more, it said that lap seatbelts might cause “fatal injuries” and should be kept off school buses. The promotional film said that slow-motion video and test measurements showed the belted dummies experienced a potential “fatal” whiplash as their heads hit the back of the seat in front of them. The study was soon quoted in numerous industry and academic papers across North America.

Still, a close examination of that study shows that Transport Canada never tested side-impact crashes or rollovers, where most serious injuries and death occur. Nor were any of the dummies fitted with three-point lap and shoulder belts, already proven to prevent ejection and injuries in cars. A scathing 1985 review by University of Michigan researchers dismissed the study as “exaggerated” and said that its conclusions were invalid.

As for the unbelted adult dummies, the University of Michigan researchers say they received greater injuries than the belted ones, contrary to what Transport Canada said. “The unrestrained dummies hit the top of the seat backs with their necks,” the researchers said, noting Transport Canada failed to properly measure those injuries or account for them in their conclusions.

The University of Michigan critique concluded that Transport Canada’s own data actually “supports the need for occupant restraint on buses.” “No case can be made from the results of this test program that belted children will have an increased likelihood of severe head and neck injuries in frontal crashes,” the researchers said.

Records obtained by The Fifth Estate show that Transport Canada had initially wanted to put seatbelts on school buses and had even set a date for the rule to take effect in the late 1970s. But after some “aggressive” lobbying by school bus operators and school boards, the proposed seatbelt law was withdrawn. The top concern: the “cost-benefit ratio due to the low number of accidents involving school buses,” according to a 1985 Transport Canada document summarizing the plan to withdraw the seatbelt requirement on school buses.

The Fifth Estate has also learned that by the time of the 1984 study, Canadian officials were already aware of — and had written about — a previous U.S. study showing that seatbelts would have saved lives had they been installed in school buses. That study concluded that of seven fatalities in small school bus crashes six children would have survived if they’d all worn a seatbelt. The study also concluded that of 75 major injuries, “most” of them would have been “minor” if a seatbelt had been worn. That information was left out of the Transport Canada promotional film.

Also missing from the film was a key passage in the written report that followed the 1984 test crash. A Transport Canada official had written that in a rollover crash, “the unbelted occupant could be thrown about the vehicle and could be badly injured or unconscious.”

Since then, Transport Canada officials have continually been made aware of more studies reaching the same conclusions — that seatbelts save lives.

James Johnson, an executive with IMMI, a crash test site based in Indiana, says the anti-seatbelt lobby is starting to lose its influence over regulators and school boards. (CBC)

James Johnson, vice-president of marketing and business development with IMMI, a company that runs one of the largest crash test sites in the world just outside Indianapolis, says the high padded backs on school buses do help prevent injuries in frontal crashes, but are completely inadequate when the bus is hit from the side or tips over. “Compartmentalization does nothing for you in side-impacts or rollovers. So those are the type of accidents, unfortunately, where tragedy strikes and you have children injured and killed.”

To prove its point, IMMI conducted a side-impact test crash. In a video, an unbelted dummy is seen being ejected violently through a school bus window onto the pavement. “And that’s where a lap and shoulder belt will make a big difference,” said Johnson.

Johnson said the anti-seatbelt lobby is starting to lose its power over school boards and regulators. “What I’ve seen over the last five or six years is that side losing steam, losing their influence over it.” Today, eight states representing about 40 per cent of the U.S. population require seatbelts on school buses.

In Canada, the federal government regulates bus safety requirements while provinces are responsible for enforcement and fines. There is no law anywhere in the country that mandates seatbelts in school buses.

Now is the time  to have such a law.

It is long overdue.


Paul Mitchell, Q.C. is a BC personal injury lawyer who is a Past Member of the Board of Governors of the BC Trial Lawyers Association. He has extensive experience with severe injury claims, including brain injury claims, spinal injury claims, bicycle claims, death claims, ICBC claims, and other catastrophic injury claims. He is acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company.

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

 

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”. 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 18th birthday, not to exceed $10,000
  • direction to allow Trust funds to be used for a downpayment 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.

One of the most frequent mistakes people make in entering contracts is in making incorrect assumptions about what is or is not included in a contract. This can arise from miscommunications, misunderstandings or misapprehensions. When parties differ on their understandings of what is included in a contract, the result can be a dispute that engages potentially complex notions of representations, limitations clauses and principles of contractual construction which, in turn, can make the resolution of contractual disputes protracted and expensive.

In the recent case of Tri-X Excavating Ltd. v Morman, 2018 BCSC 1493 (CanLII), Tri-X was suing the Mormans for unpaid invoices related to blasting services which it provided. The Mormans were countersuing Tri-X for Tri-X allegedly damaging a neighbouring property and for failing to leave the blasted rock wall in stable condition.

Tri-X was hired to provide “rough grade” blasting services for the Mormans, who planned on building a shop utilizing the area cleared by blasting. The Mormans did not hire a geotechnical or structural engineer with respect to installing a retaining wall but were “sort of aware” that a retaining wall would have to be checked for safety. The Mormans’ were very cost conscious in their discussions and negotiations.

The court had no issue finding that a contract existed but posited that the dispute entailed the scope or work covered by the contract, the interpretation of the contract and the degree to which the contracted work was performed. In particular, whether the contract included an obligation for Tri-X to provide more than simply blasting services.

The court found that the Mormans were not aware of what might be involved with remediating the rock face once blasting was completed. There were no discussions with Tri-X’s agents that the Mormans had an expectation that the contract would include rock face remediation. Additionally, the Mormans were aware that the contract was for a low price compared to other estimates that entailed more extensive remediation of the rock face. In the result, the Mormans failed to establish that there were instructions relayed to Tri-X to stabilize the rock face after it completed its blasting services nor were the Mormans’ plans to construct a building at the foot of the rock wall communicated to Tri-X.

The court agreed with the Mormans that Tri-X owed them a duty of care but found that the applicable standard had been met. There was a lack of evidentiary basis to establish the duty of care posited by the Mormans or that such a duty had not been met. Further, the expert evidence offered by the Mormans only suggested that aspects of the alleged duty of care may have been breached, but did not go so far as to actually assert such a breach.

The blasting done by Tri-X was always going to require some form of engineered solution to stabilize the exposed rock slope and the court found that the Mormans simply failed to retain Tri-X or another company to provide that solution. In short, Tri-X was not contractually responsible for work required to stabilize its blasting where the contract it was operating under failed to require such work.

Tri-X Excavating Ltd. v Morman is illustrative of the importance of understanding what falls under the rubric of a contract or not. It is not prudent to expect a party to perform matters and adhere to duties that were not contracted for based expectations that were uncommunicated, not contracted to or both.

Concerns about what is being contracted to, the duties a contractor might owe or the standards to which a contractor is to adhere to, those goals, duties and standards can and should be made clear and explicit within a written contract.  Expectations that are not agreed upon and recorded in writing are left open to differing understandings which, in turn, invites potentially protracted and expensive litigation to resolve. The old adage “an ounce of prevention is worth a pound of cure” remains sage advice when entering contractual relations.


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

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

As discussed in my previous article, When a Party Breaches a Settlement Agreement: Being Made Whole, settlement agreements are effectively contracts which can be enforced through legal action and replace whatever legal, contractual or equitable rights were involved in the fight that preceded settlement. Like any other contract, privity of contract – a contract being enforceable only as between the parties to it – remains a central concern in the enforcement of a settlement agreement.

In the recent case of Weizmann v Polar Bear Electronics Ltd., 2018 BCSC 1040 (CanLII), Mr. Weizmann entered into a settlement agreement in 2008 for some $150,300.27. The crux of the dispute was that Mr. Weizmann claimed that Polar Bear Electronics Ltd. (“Polar Bear”) was a party to the settlement agreement and that the agreement was enforceable against Polar Bear.

Polar Bear argued that it was not a party to the agreement and, as such, was not a proper defendant to the efforts to enforce the settlement. Piggy-backing onto Polar Bear’s argument was Mr. Jane who argued that, as he guaranteed Polar Bear’s debts and Polar Bear was not a party to the settlement, he was not obliged to guarantee Polar Bear’s alleged debt arising from the settlement.

The Court agreed with Polar Bear. Its analysis began with stating that the settlement agreement was prepared by or on behalf of Mr. Weizmann and, as such, any ambiguities in its interpretation would be resolved against Mr. Weizmann (a legal principle known as contra proferentum).

The Court went on to note that the settlement agreement contained introductory clauses that referred to Polar Bear but went on to state that the settlement was between other parties. There were other clauses that indicated that Polar Bear was not a party to the settlement and the signature blocks did not include any signing block for Polar Bear. Mr. Weizmann also had a history of preparing other agreements in which Polar Bear and its principal had different signing lines which the Court found as indicative that Mr. Weizmann appreciated the legal separation between Polar Bear and its principal.

The Court ultimately concluded that Polar Bear was not a party to the settlement agreement. Further, as Mr. Jane’s obligation as a guarantor was triggered by Polar Bear defaulting on a debt and that no debt existed, Mr. Jane was not obliged guarantee the settlement agreement.

Weizmann is an important reminder that settlement agreements should be carefully drafted so as to ensure that the contractual effects and enforceability of the settlement agreement are as intended. It is unwise to assume that any entity is a party to a settlement where there is an opportunity to explicitly make them a signatory to the settlement and spell out that party’s future obligations in the agreement.


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

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

 

Couples often experience significant change when their kids move out, and they retire or head towards retirement. It all sounds very idyllic but adjusting to these new norms can come with uncertainties, leading to conflict amongst couples.

It goes without saying that couples that recognize these relationship changes early, and who seek advice and support are better equipped to manage the transition. However, changing social stigmas, a no-fault approach in divorce and an increasing aging population has led to an increase the numbers of separation of people at this stage in life. Statistics Canada estimates that 37.6% of marriages are expected to terminate by the twenty-fifth year, and 43.1% of marriages are expected to terminate by the fiftieth year.  The process of separation is often very trying on several fronts: emotionally, financially, mentally and physically.

Separation for ‘empty nesters’ has its own special series of issues. There are many steps in the legal process key to protecting your interests and managing your life going forward that a lawyer can help you with.   Most empty nesters are no longer required to negotiate parenting issues and monthly child support although assisting children through post-secondary education can still be an issue that needs addressing. Most negotiations for this demographic tend to be focused around division of family property, debt and spousal support.

It is very important that parties seek out legal assistance to ensure that they are aware of their rights and obligations arising out of the relationship breakdown. Some typical issues to address can include division of pensions, investments, allocation of debt, and spousal support before and after retirement. Once you have consulted with a lawyer, it is generally recommended that you opt to resolve matters outside of Court, if appropriate, for your specific circumstances.

To do so, you can explore different out of Court resolutions including Mediation and the Collaborative Law process.

It is key that any settlement either by agreement or Court Order is done with full financial disclosure of each party’s finances including income, property and debt.

Ideally, parties can resolve matters in a fair manner and move forward into the next stage of their lives with confidence and certainty.

Another consideration is for those separated or divorced empty nesters who enter into a new relationship; that is a Cohabitation or Prenuptial Agreement.  It is highly recommended to those entering into a new, committed relationship that they consult with a lawyer to discuss whether a  Cohabitation or Prenuptial Agreement would be an appropriate step.  When combining finances where prior family assets and debts are involved, it is important to understand and address concerns regarding future rights and obligations of the new relationship.


Taryn is the Practice Leader of Pushor Mitchell’s Family Law Group

She provides family litigation services and is a collaborative law practitioner.  Her top client priorities are clear communication, compassion and accessibility, and she considers a trusting relationship with her clients, the single most important aspect of a good law practice. 

On September 17, 2018, a new version of the property transfer tax return came into effect. The new Form 31 was created to give effect to the June 12, 2018 Information Collection Regulation (the “Regulation”) of the Property Transfer Tax Act ordered by the Ministry of Finance, also with effect from September 17.

Under the Regulation, the information required to be disclosed by corporate purchasers and trusts is substantially increased.

Corporations must provide detailed personal information, including country of citizenship, of each “corporate interest holder”, as defined in the Regulation. A corporate interest holder is an individual who:

  • has legal or beneficial ownership or control of shares of the purchaser corporation representing 25% or more of the voting rights or equity of the corporation,
  • has the right, directly or indirectly to appoint the majority of the board of directors, or
  • has the right to exercise significant control of the corporation under a unanimous shareholders’ agreement.

Importantly, in ascertaining whether an individual is a corporate interest holder, the Regulation requires one look to whether that individual’s interest, power or right can be exercised directly or indirectly together with one or more persons with common interests or through other corporations, trusts, agents or other intermediaries. This requires, in effect, “looking through” those various intermediaries to the individuals who exercise effective control of the kind contemplated above. Because of the broad language in the Regulation, this could be difficult to accomplish in every case, especially with complex corporate structures.

Pursuant to the Regulation, trusts must provide detailed personal information, including country of citizenship, of each beneficiary of the trust. If the beneficiary is a corporation, the personal information of each director of the corporation and each corporate interest holder must also be disclosed. If the trust is a “bare trust”, the “settlor” of the trust must also be disclosed. This is the individual or corporation who contributed the property to the trust or contributed the assets used to acquire the property. We currently do not have clarity with respect to discretionary beneficiaries and how they must be treated under the new rules. Presumably, their information must also be disclosed.

The new property transfer tax return will increase the complexity of filing such returns. Corporate and trust property purchasers should be prepared to disclose significantly more information than previously. Much of the information may be difficult to gather and so attention should be paid to these new requirements early in the course of the property sale.

One of the frequent issues encountered in contractual litigation is parties failing to negotiate and set to writing the contractual obligations that exist between them. So long as the parties are getting along and no questions are raised about anyone’s obligations, the lack of written contractual terms may not be an issue and convention will general dictate the parties’ interactions. The concern with not reaching a fully-fleshed out, written agreement is that, once the parties get into a dispute or take differing views as to what has been agreed upon, a great deal of uncertainty and expense is introduced when the parties turn to lawyers and the courts to determine what rights and responsibilities exist within the contractual relations between the parties.

In the recent case of R & B Plumbing & Heating Ltd. v Gilmour, 2018 BCSC 1295 (CanLII) a plumber had been working for a property owner for several years in relation to a renovation. The work proceeded for those years on the basis that the plumber would provide invoices and the owner would pay same without concerns about the quality of work or method of billing.

The relationship soured when a dispute arose over the installation of a temporary heater. Among other things, the owner took the position that she was entitled to detailed invoices from the plumber in relation to its work dating back to the very outset of the business relations. Upon being provided most of these invoices, the owner then took the position that she was being overcharged for the historical invoices. For its part, the plumber adjusted some invoices where it agreed there were errors but was not able to reach a resolution satisfactory to the owner.

The dispute continued until the owner had refused to pay five invoices issued by the plumber and the plumber ceased work and registered a builder’s lien.

The Court’s analysis of the facts placed significance on the owner having never questioned the contact of the plumber’s invoices, the method of billing or the quality of services provided to her. As the Court was being called upon to interpret terms of an oral contract, its analysis began with what the parties said and did and to assess such evidence objectively to determine what contractual terms the parties intended to be bound by (citing, Berthin v. Berthin2016 BCCA 104 (CanLII) at para. 46; Le Soleil Hotel & Suites Ltd. v. Le Soleil Hotel Management Inc., 2009 BCSC 1303 (CanLII) at para. 328).

The Court found that the contract was informal and one that did not have any agreement as to billing method from the outset. By their conduct over time, the parties established an enforceable convention for billing based on time and materials and manifested their intention to be bound by this convention through their conduct as well. While the plumber had made some errors in its invoices, they were minor and did not amount to a breach of contract.

The owner’s refusal to pay invoices constituted a breach of contract which, in turn, provided a legal justification for the plumber to cease work and register a lien. The plumber’s conduct amounted to self-protection from further monetary loss and not an abandonment of the contract. As a result, the owner was not entitled to sue for breach of contract for abandonment by the plumber.

The plumber’s exposure was limited to a small repair and the owner’s additional costs to complete the plumber’s work were laid at the owner’s feet for breaching the contract. The owner was ordered to pay the outstanding invoices and costs were left to the parties to agree upon with the un-stated implication that costs ought to favour the plumber.

R & B Plumbing & Heating Ltd. is illustrative of the importance of how well-drafted contracts at the outset of contractual relations may lessen the costs of disputes over contractual terms if not avoid them entirely. Had the parties in the case set out full details of their contractual relations form the outset, there would have been no question as to the appropriate billing methods. The case is also a reminder that the courts will not shy away from imposing the contractual terms they determine that objective circumstances suggest were agreed upon and may do so to the frustration of one or more parties to a contract. Best business practice dictates ensuring well-drafted contracts are in place from the outset of any contractual relationship and that, if circumstances, convention or agreement suggest a change of contract is in order, that such changes also be put in writing.


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

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

 

When a loved one passes away, how do you know if they had a Will? Many people – even those close to us – can be very “cloak and dagger” about finances and personal matters. Estate Planning is certainly very personal, and oftentimes loved ones will not communicate with those closest to them about their Wills. Some people keep their original Wills at home, or 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 out the location of the Will, one thing you can do is 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 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, filing a Wills Notice, although highly recommended, is optional, so it’s possible the Will-maker didn’t file a Notice, or may have since moved the will or revoked it. So the Wills Registry search may not be conclusive evidence, but 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 Real Estate and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be delighted to assist you!

Most people familiar with the purchase and sale of real property are familiar with subject to clauses, the full legal significance of such clauses can be a source of confusion. The misunderstanding of the legal meaning of subject to clauses was at the heart of the litigation in Dhaliwal v Binepal, 2018 BCSC 1061 (CanLII).

In Dhaliwal, the purchasers had negotiated the purchase of a home in Cloverdale. The purchasers’ offer included a number of subject to conditions which were required to be removed by December 22, 2015. One of the subject to clauses was for the purchasers to obtain financing obtain financing. While the purchasers were able to obtain financing prior to the end of December 22, 2015, they requested a one or two day extension in order to obtain written and not just oral confirmation of their financing.

The purchasers properly drafted the subject to clauses to be to their benefit. As such, upon the removal of the subject to clauses, their offer would result in a firm and binding contract; however, until that time, their offer did not require any performance by the vendors. In the face of potentially running out of time to remove subject and out of an abundance of caution, the purchasers signed both an agreement to extend the subject removal date by one day as well as a removal of the subject to clauses (including financing) and set the realtor to the task of closing the deal.

Despite knowing the purchasers were intent on closing the purchase and had only hours left to remove subjects, the vendors ceased communications with their realtor which, effectively, left the purchasers with the option of removing subjects or having the deal collapsing. The purchasers’ realtor eventually advised the vendors’ realtor that, as the extension was not being granted, subjects would be removed. A late evening meeting was arranged for the purchasers’ realtor to drop of the removal of the subject clauses in person.

The legal effect of the removal of the subject to clauses shortly before the end of December 22 was that the purchasers offer was no longer conditional and the offer became a firm and binding contract. Accordingly, the next morning, the purchasers’ realtor dropped off the contractually required deposit.

The vendors, upon learning that subject to clauses had been removed, refused to close and, instead, alleged that there had been conspiracy and deceit on the part of the realtors to preserve the commissions. The Court viewed the vendors attempts to maintain their theory of conspiracy as essentially grasping at straws and baseless. As the vendors nonetheless maintained this baseless position and refused to close, the purchasers sued for specific performance of their contract (the court forcing the vendors to sell).

The Court found that the vendors, upon deciding not to respond to the request for an extension, had assumed, incorrectly, that the deal had collapsed. Despite both sets of realtors agreeing that the purchase contract because unconditional and enforceable with delivery of the subject removal clause, the vendors insisted on continuing to allege a conspiracy by the realtors to defraud the vendors and preserve the realtors’ commissions.

The Court observed that the choice to remove the subject to clauses rested with the purchasers, not the vendors, and, as such, the purchasers were able to unilaterally created a binding contract by removing subjects. The vendors attempted to maintain that their defence, in part, on the basis that they felt they had been given conflicting explanations about what occurred with the subject to removal. The Court gave no weight to the vendors attempts to prove the realtors to be deceitful or that their position was supportable on their alleged confusion.

The Court rejected the vendors’ defences and found the subject property to be so unique and well-suited for the purchasers’ needs that it granted the purchasers specific performance and ordered the vendors to convey the property to the purchasers for the negotiated purchase price. The Court further ordered that the vendors pay the purchasers’ carrying costs, expenses and rent incurred between the time of closing and the time of judgment as well as the purchasers’ court costs.

Dhaliwal is illustrative of the legal effect of subject to clauses; properly drafted clauses generally hold a contract in suspense until they are satisfied or removed and notice of same is provided to the opposite party(s). Subject to clauses generally are drafted to be in the favour of one party and, as such, may be satisfied or waived unilaterally by that party. The party who is not the beneficiary of a subject to clause is obliged to perform the contract if the subject to is satisfied or waived in the time frame stipulated in an offer and exposes themselves to Court-ordered relief and censure for refusing to do so.


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

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

 

Consumption of recreational cannabis will be legal as of October 17th. While some Canadians are rejoicing, many businesses are understandably nervous. Employers are required to ensure the health and safety of their workers, and impairment at the workplace is a hurdle to meeting this obligation. In addition, many employers are concerned about the impact of recreational marijuana on workplace productivity. However, employers can breathe a sigh of relief. The legalization of cannabis does not provide employees with carte blanche to consume cannabis whenever and wherever they want.

The starting point in understanding the impact of legalizing recreational cannabis is to remember that the law does not permit workers to attend the workplace impaired. Employers and employees share a reciprocal duty to protect the health, safety and well-being of workers. This includes ensuring that employees are not impaired at the workplace – whether such impairment is caused by alcohol, prescription drugs or illicit drugs. The legalization of recreational marijuana does not change this fact.

It is helpful to think of recreational cannabis in the workplace in much the same way as alcohol. Some employers will already have a drug and alcohol policy that prohibits the consumption of alcohol during working hours and impairment at work. Recreational marijuana can be treated similarly. Employees are not permitted to be “high” at work in the same way that they are not permitted to be “drunk” at work.

That being said, the legalization of recreational cannabis will raise new challenges.

Assessing impairment from cannabis is not as straightforward as alcohol. Drug testing is generally not permitted in non-safety sensitive workplaces. As such, employers will want to educate themselves on how to assess the conduct of persons who appear impaired by cannabis. Additionally, drug dependencies are generally considered disabilities under human rights law. An employee’s use of recreational marijuana may lead to a drug dependency that triggers an employer’s obligation to accommodate the employee.

Given the above, employers are strongly encouraged to develop or update their workplace policies to address the impact of recreational marijuana in the workplace. It is important that both employers and employees know their rights. Employers will be in a better position to meet their legal obligations if they draft a policy that clearly outlines expectations, communicate the policy to employees and apply the policy consistently.

The law is changing. However, employers who prepare themselves for the legalization of recreational marijuana should not be overly anxious. Of course, if preparation does not help calm your nerves, there will be a new (legal) way to mellow out come October.

In Bates v Superintendent of Motor Vehicles, 2018 BCSC 1211, we recently succeeded in having the decision of an adjudicator confirming an immediate roadside driving prohibition set aside.

The Bates decision is significant because it confirms that the Charter of Rights and Freedoms must be considered by an adjudicator when conducting a written or oral review of an Immediate Roadside Prohibition (IRP) pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

The Court in Bates, ibid, cited Tsogas v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 1742, and held as follows:

[18] … In the Tsogas decision, Mr. Justice Johnston makes some observations:

[…]

[20]     The Court in Goodwin held that “the demand to breathe into a roadside screening device constitutes a seizure that infringes on an individual’s reasonable expectation of privacy,” invoking the protection of s. 8 of the Charter (at para. 51). Further, although the demand is made under s. 254(2) of the Criminal Code, for the purposes of s. 8, the provincial legislative scheme authorizes the seizure and thus the provincial legislation is open to Charter scrutiny (Goodwin at para. 54).

[21]     Charter scrutiny of a search or seizure requires a court to determine if the search or seizure was reasonable. The requirements are that: (1) the search or seizure must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search or seizure must be carried out in a reasonable manner (Goodwin at para. 48, citing R. v. Caslake, [1998] 1 S.C.R. 51 at para. 10 and R. v. Collins, [1987] 1 S.C.R. 265 at 278).

Clearly, driving prohibitions issued pursuant to the provisions of the Motor Vehicle Act concerning Immediate Roadside Prohibitions (IRP) are open to Charter scrutiny.

Thus, when reviewing the circumstances surrounding the issuance of an Immediate Roadside Prohibition (IRP) by a peace officer in British Columbia one must always determine whether there has been a breach of an individual’s Charter rights. Any such breach must be raised in the written or oral review hearing in order to ensure that both the hearing and the outcome of the hearing are consistent with principles of fairness.

In order to do this effectively one should seek the advice of legal counsel who has experience challenging Immediate Roadside Prohibitions.

The Federal Court of Appeal has quashed approvals to build the Trans Mountain expansion project, but the federal government is determined to proceed with the pipeline.

See the full reasons of the Court here.

 

Hailing from the UK originally, dealing with firearms in an Estate is simply something I did not learn at law school or ever come across in practice over there. In Canada it is far more common. Hunting is a big part of life for many people over here, and thus firearms are frequently gifted through Wills and are often part of a deceased’s personal effects and household goods when she or he passes away. How does an Executor deal with these?

Unless an Executor is otherwise barred from possessing a firearm for some reason, an Executor can hold the firearms of the deceased for a reasonable period of time. During that period of time (undefined), the Executor must store them appropriately, depending on what type of firearm they are dealing with (non-restricted/restricted/prohibited).

Assuming the beneficiary of the firearm is not a minor, the Executor must ensure that the beneficiary has the appropriate firearms licence for the firearm they will be receiving. The Executor should also satisfy themselves that the beneficiary is not banned from possessing a firearm for some reason. It is recommended for an Executor to call the office of the Chief Firearms Officer (“CFO”) of British Columbia to ascertain this information.

Firearms Act excerpt:

Authorization to transfer non-restricted firearms

23 A person may transfer a non-restricted firearm if, at the time of the transfer,

(a) the transferee holds a licence authorizing the transferee to acquire and possess that kind of firearm; and

(b) the transferor has no reason to believe that the transferee is not authorized to acquire and possess that kind of firearm.

Voluntary request to Registrar

23.1 (1) A transferor referred to in section 23 may request that the Registrar inform the transferor as to whether the transferee, at the time of the transfer, holds and is still eligible to hold the licence referred to in paragraph 23(a), and if such a request is made, the Registrar or his or her delegate, or any other person that the federal Minister may designate, shall so inform the transferor.

If the firearm is restricted or prohibited then the Executor must notify the CFO who will provide the necessary transfer paperwork to transfer the firearm to the beneficiary, provided they are not prohibited from holding same, are not a minor and hold the appropriate firearms licence.


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.

Did you know that there is a different contract that is used when buying and selling a home on Westbank First Nations (“WFN”) Lands? The standard contract used by real estate agents for buying and selling homes in the British Columbia land system assumes that the land is being bought and sold. However, on WFN Lands it is not possible to sell the land and all interests bought and sold are leasehold interests (usually a long-term prepaid sublease in a larger development, and occasionally a stand-alone lease for a home not in a development). This is a really important difference when it comes to language used in the contract.

There is a WFN specific standard form contract available to real estate agents which is drafted to address the differences in the WFN system (the “WFN Contract”). Some of these differences include:

(a) the WFN Contract is clear that the interest being bought and sold is a leasehold interest;

(b) the registration process in the WFN Contract refers to the WFN lands registry and the standard language in the WFN Contract reflects that the transfer of interest is by assignment of leasehold interest.

These differences are particularly important if the transaction does not go smoothly and the parties need to rely on strict performance of the obligations set out in the contract. If the contract is not the WFN Contract, strict compliance with the contract terms would result in the parties being required to follow a process which would not result in a transfer of the home. This would become very important if a dispute arose between the buyer and the seller, and especially important if that dispute ended up in court.

The WFN Contract is labelled so that it is easy to identify: it is called “Westbank First Nation Contract of Purchase and Sale of a Leasehold Interest”.

If you have any questions about the WFN Contract or the process for transferring a home on WFN Lands, please give us a call. We are happy to help.


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

On June 12, 2018, the Federal Court of Canada (the Court) rendered its decision in Heffel Gallery Limited v. The Attorney General of Canada, 2018 FC 605 (the Heffel Decision). The Court determined that the Review Board’s determination that the painting is of national importance was unreasonable.

The Review Board is bound by the interpretation of the national importance requirement adopted by the Court, which is now applicable to its decision-making in both requests for review of applications for export permits and applications for certification of cultural property.

The Attorney General of Canada has appealed the Heffel Decision to the Federal Court of Appeal.  Nevertheless, the Review Board is bound to apply the Heffel Decision while the appeal is pending.

Until further notice, the Review Board will provide an applicant of an application for certification of cultural property with the option to either:

a) demonstrate that the object that is the subject of the application meets the test for national importance established by the Court in the Heffel Decision;

or

b) request the Review Board defer rendering its decision in the application until after the Federal Court of Appeal renders its decision in the appeal of the Heffel Decision.

An applicant who elects the first option must address, in its statement of outstanding significance and national importance (OS/NI Statement) included as part of its application for certification, how the object that is the subject of the application has a direct connection with the cultural heritage that is particular to Canada.

In determining whether an object meets the test for national importance established by the Court in the Heffel Decision, the factors that the Review Board will consider include:

a) the extent to which the object has a connection to Canada or to Canadian heritage;

b) the extent to which the object had an influence on the Canadian public, the practices of Canadian creators or Canadians working in a particular field of work or study; and

c) the extent to which the object’s connection to the cultural heritage is particular to Canada.

This test and these factors will be applied by the Review Board with respect to applications for certification of objects that were made by Canadian creators, objects that were created by creators who are not Canadian, and objects for which there are no creators (e.g. meteorites and mineral specimens).

Read full practice notice


Paul’s art law practice includes acting for buyers and sellers, dealers, collectors, artists, galleries, museums, and art institutions.  He has been involved as an art dealer and art advisor for many years.

Paul has lectured on art including events hosted by the University of British Columbia, and the Kelowna Art Gallery.  He is a Director of the Kelowna Art Gallery.

 

Do you own recreational property in Kelowna or West Kelowna? Thinking of renting it to avoid BC’s proposed speculation tax, but still want to enjoy it yourself for some parts of the year?

You may be considering a fixed term tenancy agreement with a prospective tenant. Here’s a summary of what you need to know about BC’s Residential Tenancy Act and how it may limit your options for using your recreational property personally and avoiding the proposed tax.

Earlier this year, BC’s government announced that, as of 2019, second properties that are “qualifying long-term rentals”, which are rented out for at least six months in a year, in increments of 30 days or more, will qualify for an exemption from the speculation tax. Let’s set aside the ambiguity about what a “qualifying long-term rental” is (we expect that the BC government will release draft legislation regarding the speculation tax this fall) and consider the requirements of the BC Residential Tenancy Act.

Earlier this year, and in late 2017, BC’s government approved amendments to the Residential Tenancy Act that:

  • changes when landlords can enforce “move-out” clauses in fixed term tenancy agreements;
  • requires landlords to use their property for a period of at least 6 months if they end a tenancy for the purpose of personally using their property; and
  • increases the compensation payable to tenants if a landlord ends a tenancy for a stated purpose, then does not use the unit for that stated purpose.

Now, if a landlord wants a tenant to move-out of the rental unit at the end of a fixed term tenancy, the reason must be indicated in the tenancy agreement and both parties must have their initials next to the move-out clause in order for it to be enforceable. The move-out clause will only be enforceable if the landlord, or a close family member of the landlord, intends in good faith at the time of entering into the tenancy agreement to occupy the rental unit at the end of the term.

Additionally, if a landlord ends a tenancy because the landlord, or a close family member of the landlord, intends to occupy the rental unit, the rental unit must be occupied by the landlord, or a close family member of the landlord, for a period of at least 6 months, or the landlord is liable to compensate the tenant in an amount equal to 12 months’ rent payable under the tenancy agreement.  This means that a landlord cannot end a tenancy to occupy a rental unit and then re-rent the rental unit to a new tenant without occupying the rental unit for at least 6 months.

The key element in ending a fixed term tenancy for a landlord’s use of the property is the good faith requirement. According to BC’s Residential Tenancy Branch Policy Guideline, “a claim of good faith requires honesty of intention with no ulterior motive.” In dispute resolution, to prove good faith, the landlord must produce evidence that they have been truly using their property for personal use. However, if the tenant can produce conflicting evidence, such as an advertisement for new tenants or a short-term rental, then that evidence raises a question as to whether the landlord had a dishonest purpose.

Effectively, these provisions limit the manner that a recreational property owner can rent out their property and still enjoy it themselves. In order to meet the requirements of the speculation tax exemption and avoid any risk of liability for compensation to the tenant under the Residential Tenancy Act, there is only one sure option: a 50/50 use (rented out 6 months of the year and occupied personally for 6 months of the year).

Here are some scenarios that may create liability for a landlord to compensate a tenant:

Summer Use. The landlord rents to a tenant for 8 months on a fixed term, and then occupies the property continuously for a period of 4 months. In Kelowna and West Kelowna, this likely scenario is where the landlord rents to a student from September until April, and then occupies the property from May to August. However, the landlord is only occupying the property for 4 months, which does not meet the requirement for the landlord to use the property for period of at least 6 months under the Residential Tenancy Act. However, there may be an arrangement that can be made by the landlord and tenant to avoid issues.

Vacation Rental. The landlord rents to a tenant for a fixed term of 6 months, and then either:

  • personally uses the property intermittently, alternating with short-term (nightly or weekly) vacation rentals for periods when the landlord is not using the property; or
  • continuously offers the property for short-term rentals.

Because there is evidence that the landlord may have an ulterior motive for ending the tenancy in order to rent the property out on a short-term basis, this type of use is unlikely to meet the good faith requirements of the Residential Tenancy Act.

If you are thinking of entering into a fixed term tenancy (for the purpose of avoiding the speculation tax or not) or evicting a tenant because you intend to occupy your property, and you would like some assistance, please contact Elise Everest.

The 2018 Provincial Budget introduced the government’s 30-Point Plan for Housing Availability in British Columbia.  One of the “points” in the Plan is to address what the government refers to as “hidden ownership”, whereby the true beneficial owner of a property is obscured by holding it in trusts or shell corporations. The government’s concern is that hiding ownership in such a way can facilitate tax evasion, money laundering, and fraud.

In June, 2018, the Ministry of Finance released a White Paper with a proposed Land Owner Transparency Act (the “Act”). The Act proposes to create an ambitious new public registry for beneficial ownership of real estate in the Province, which will hold records on the individuals who fundamentally own and control the land.

Under the Act, corporations, trustees and partners (“reporting bodies”) will be required to identify the individuals that have a beneficial interest in land, that have a significant interest in the land-owning corporation, or that have an interest in land through a partnership.

Reporting bodies will be required to disclose information in three situations:

  1. on any application to register legal title in the name of a reporting body;
  1. any time there is a change of interest holders or beneficial owners (even when this does not result in a transfer of legal title to the land); and
  1. during an initial transition period all those holding an interest in land for a beneficial owner will be required to file a disclosure report.

The information collected will vary based on the type of reporting body.

For corporations, information that must be disclosed includes:

  • the name, head office and business/incorporation number of the corporation;
  • for each person who directly or indirectly own or control 25% of the corporation’s shares, that person’s name, citizenship, place of residence, date of birth, and social insurance number/ individual tax number; and
  • information about the person completing the report.

For trusts, information that must be disclosed includes;

  • identification information about the trustee, beneficial owner(s) and settlor(s);
  • date of birth and social insurance number/individual tax number of beneficial owner(s) and settlor(s); and
  • information about the person completing the report.

For partnerships, information that must be disclosed includes:

  • name, head office and business number of the partnership;
  • each partner’s date of birth and social insurance number/individual tax number; and
  • information about the person completing the report.

The Act will include several provisions to attempt to alleviate privacy concerns some may have with the public database, such as restricting the information available to the public and allowing more sensitive information such as social insurance numbers and dates of birth to be accessible only by certain authorized agencies, such as law enforcement and tax authorities. Furthermore, the information of individuals under the age of 19 or those legally incapable of managing their financial affairs will be automatically omitted and vulnerable individuals, such as victims of domestic abuse, can apply to have their personal information omitted from the publicly accessible database.

The White Paper is currently out for public discussion and comment and the government will accept submissions until the end of day on August 19, 2018.

The recent case of Dalpadado v North Bend Land Society, 2018 BCSC 835 (CanLII)

The Petitioners asserted that the respondent, North Bend Land Society (“NBLS”), had breached promises to the Petitioners which granted the Petitioners rights over certain lands (the “Lands”) and had acted in a manner that constituted oppression. In particular, the Petitioners say that they were promised exclusive use the Lands and NBLS had breached its bylaws and acted in an oppressive manner by, among other things, breaching the promises in respect of the Lands. NBLS responded that the Petitioners’ claim amounted to a land grab.

By way of further background, NBLS was a non-profit organization incorporated in order to purchase lands in North Bend, BC with the intent to subdivide land for its members. Its membership was generally comprised of elderly members of limited means. Its leadership were not particularly legally sophisticated and it ran into a number of issues during the subdivision process.

The pith of the dispute arose after the Petitioners purchased an interest in NBLS which provided them with use of land where a mobile home was located. The Petitioners sought and were granted permission by NBLS to use a neighbouring area for a play space and for ATV use (the “Disputed Lands”). Disputes arose when the Petitioners erected a fence around the Disputed Lands, built a gazebo on the Disputed Lands and asserted exclusive use and possession of the Disputed Lands. NBLS had reached an impasse with its efforts to have the Petitioners remove their structures from the Disputed Lands and retreat from their possession about the exclusive use and possession of the Disputed Lands. The need to resolve the conflict was heightened when a new member to the NBLS purchased an interest in NBLS granting them exclusive rights to certain of the Disputed Lands.

The Petitioners sought to support their claim on the basis of proprietary estoppel which consists of three elements: (1) a representation or assurance made that a claimant will receive or is entitled to some benefit; (2) the claimant reasonably relies and acts on that representation; and (3) there is a detriment to the claimant resulting from the reliance that would be unjust or unfair to suffer if the promising party is allowed to break their promise.

The court rejected the claim for proprietary estoppel on the basis that the Petitioners had never been promised either exclusive or indefinite use of the Disputed Lands. The Petitioners went further than the promise that had been given by erected structures where what they were granted was temporary use. As the Petitioners went beyond the permission granted to them, any deprivation they suffered lied at their own feet and, in fact, their use of the Disputed Lands deprived another NBLS member of his rights. As such, the court rejected the claim for proprietary estoppel for failing to meet each of the elements of that claim.

 

The Court went on to reject the Petitioners claims that NBLS’ bylaws did not allow for the addition of new members.

 

In addressing the Petitioners’ claims that NBLS was being operated in an oppressive manner, the court held that the impugned provision of the Societies Act, s. 102, the court found that the oppression remedy crafted and honed in the context of corporate disputes was applicable. As such, the court turned to the seminal case with respect to oppression, BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 where it was held that:

  • finding oppression is a fact-specific exercise;
  • what is just and equitable is determined in accordance with the reasonable expectations of stakeholders in the context of and with regard to impugned relationships; and
  • two inquiries that relate to claims for oppression include:
    • whether the evidence supports the reasonable expectations of the claimant; and
    • whether the evidence establishes that such expectations were violated by conduct where such conduct is oppressive, unfairly prejudices the claimant’s expectations or unfairly disregards the claimant’s expectations.

The court rejected a number of claims of oppression variously finding that there had been no oppressive conduct or otherwise holding that there had been irregularities and providing directions to the NBLS to correct/address same.


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

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

Often times, parties will get to the edge of entering into contractual relations, but miss the steps required to form a contractual agreement. This often results from the performance of the duties of an intended contract being commenced before a contract is entered and the parties simply assuming that a certain contractual relationship exists between them or the parties failing to address changes in their intended contractual dealings as such changes arise. Disputes may follow where parties then take differing views about what compensation is owed for work/services/goods provided. When faced with such situations, the Court may turn to the concept of quantum meruit (in Latin – “what one has earned”).

The concept of quantum meruit was at the heart of the dispute in Nygard v Continental Steel Ltd., 2018 BCSC 541 (CanLII). In that case Mr. Nygard had worked for one of the defendants for years as a plant manager before retiring and moving from Calgary to Abbotsford. Once retired, Mr. Nygard aided the defendants, his former employer and a sister company, on small projects through informal retainers.

At issue was when Mr. Nygard was requested to and agreed to take over the duties of a general manager on a temporary basis. This work, which was intended to be for a few months, eventually lasted for a period of 15-16 moths and included living in Calgary during that time. Issues arose over Mr. Nygard’s compensation when the defendants paid him approximately $48,000 for his services.

A year passed since Mr. Nygard took over the general manager duties and it did not appear that there was another general manger to be hired imminently. Mr. Nygard gave evidence that he requested that his deferred salary be paid on a lump-sum basis quarterly until paid in full and he received a lump sum payment of $47,742 for a period of January 1, 2014 to June 15, 2014 based on the former general manager’s salary of $7,957 monthly. Mr. Nygard eventually resigned and requested payment of expenses of $14,888 and 9.5 months’ worth of unpaid wages.

The defendants disputed the general circumstances under which Mr. Nygard took over as general manager, disputed the extent of time he dedicated to his duties and disputed his claims for work-related expenses. They argued that Mr. Nygard had been sufficiently compensated and rejected the notion that he should be compensated based on the wages of the former general manager.

In its analysis of the substantive disputes, the Court first started with whether a contract had been reached. The Court noted that a contract requires a meeting of the minds on all essential terms and that a failure to fix a price for service could be remedied by implying a term of reasonable compensation for services. The Court rejected Mr. Nygard’s contention that there was an agreement about salary; preferring to find that there was a loose arrangement with the expectation that Mr. Nygard’s services would last only a few months. Neither side had proceeded on the expectation that Mr. Nygard would be working for many months.

There were insufficient grounds for the Court to even attempt to imply a contractual term where the dynamic and ever-evolving situation left the parties without any agreement about compensation; however, the Court found that the parties were likely on their way to arriving at an agreement as to compensation similar to the claims Mr. Nygard had made.

More precisely, what the Court found was that both sides had demonstrated an intention to use the former general manager’s salary as a basis for Mr. Nygard’s compensation. The Court also found that the elements of quantum meruit were made out; that is: (1) the defendants were benefitted by Mr. Nygard’s services; (2) he suffered a corresponding detriment (his time and efforts); and (3) that restitutionary principles required that some compensation be paid to Mr. Nygard.

The defendants attempted to argue that Mr. Nygard had been sufficiently compensated already, but the Court rejected this contention finding that the elements it had to consider when assessing what Mr. Nygard might be owed on a quantum meruit basis included:

a) the nature and extent of the services Mr. Nygard provided;
b) their reasonable market value of Mr. Nygard’s services;
c) Mr. Nygard’s special expertise and personal connections;
d) the negotiations between the parties; and
e) any other facts bearing on the benefit of the services to the defendants.

Taking all the factors into account, the Court found that the value of Mr. Nygard’s services could be calculated based on the salary of the general manager whose duties he covered resulting in $62,258 owed for services provided after adjustments were made. The court also found that much of the expenses claimed by Mr. Nygard were to be paid out by the defendants.

Nygard v Continental Steel Ltd. demonstrates that Courts are not wont to leave a party with no compensation for goods and/or services given to another which are not given as gifts. On the other hand, the case also illustrates that there are risks of parties failing to complete contractual relations which include uncertainty as to what amounts to the contractual terms that might be imposed on them as well as the attendant legal expenses to support or defend a quantum meruit claim. While quantum meruit remains a method by which a party who has given value to another to their own detriment may seek redress, the better alternative remains for parties to arrive at clearly agreed upon terms and to commit those terms to writing.

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

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

Sometimes, very unfortunately, loved ones go missing. They may never return from a hunting trip, or a hike in the mountains. How can we deal with their assets? Their bills while they are missing? What if they return home? Or worse… what if they never return, when can we actually deem that they are deceased and start to deal with their Estate?

This is a complicated issue. It is hard enough to get 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. “Sufficient evidence” is really evidence looked at in its totality regarding the circumstances relating to the disappearance of the missing person.

Strong evidence will include things like 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 banking records showing no activity for months on the accounts etc. If there is insufficient evidence that someone is deceased, but where they have been missing for a certain period of time, with no contact with relatives or others that are usually in touch with them, the Court may appoint the Public Guardian and Trustee, or other 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 Wills and Estates at Pushor Mitchell LLP in Kelowna.

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

  1. an owner’s invitation to tender constitutes an offer to all potential bidders;
  1. a contract. “Contract A” comes into existence when a contractor submits a bid in response to the invitation to tender;
  1. the terms and conditions of Contract A are governed by the terms and conditions of the invitation to tender;
  1. the rights of the parties crystallize when a tender capable of acceptance is submitted on an objective view of the material requirements of the invitation to tender;
  1. if Contract A fails to materially comply with tender specifications, the rights of the parties to Contract A do not come into existence;
  1. assessing material compliance is a two-part test analyzing: (1) whether there is a failure to address an important/essential requirement of the tender documents; and (2) whether there is a substantial likelihood that the defect would have been significant to the owner’s decision-making process when considering the rational of the invitation to tender requirements, effective fair competition and reasonable expectations of parties; and
  1. discretion clauses in an invitation to tender cannot be utilized to give force to materially non-compliant bids; rather, such clauses can only be used to forgive minor defects in substantially compliant bids. 

In Mega Reporting Inc. v. Yukon (Government of), 2018 YKCA 10 (CanLII) the Court was called upon not only to scrutinize the tender process, but to determine if the Government of Yukon  could arrange a bidding process such that it could contract itself out of liability for any errors in the tendering process. The Court ultimately determined that Yukon and, by extension, other offering parties could contract out of liability subject so long as doing so was contractually clear and not uncontestably against public policy.

At the heart of the dispute was a request for proposals by the Yukon for a contract to provide court reporting and transcription services. The Plaintiff’s bid was rejected for technical reasons before its contract price was considered and the accepted bid ended up being a more expensive bid. The Plaintiff successfully sued at trial on the basis that Yukon had breached its duties of fairness in the bidding process and that its attempts to contract out of liability were rejected for public policy concerns. On appeal, that decision was reversed.

It its analysis, the Court of Appeal first approved the following three-prong test for determining whether to apply the exclusion clause may be enforced (citing, among others, Tercon Contractors Ltd. v. British Columbia (Transportation and Highways)2010 SCC 4 (CanLII)):

  1. whether as a matter of interpretation the exclusion clause even applies to the circumstances based on the intention of the parties;
  1. whether the clause was unconscionable at the time the contract was made; and
  1. whether the Court should nevertheless refuse to enforce the valid clause because of the existence of an overriding public policy that outweighs the very strong public interest in the enforcement of contracts, the proof of which lies on the party seeking to avoid enforcement. 

The Court went on to cite several authorities about the interests in having a fair, reliable and transparent bidding process competing with the notion that public policy concerns should be invoked to excise contractual terms only in clear cases in which the harm to the public is substantially incontestable. The case law cited pointed to the notion that bidders go into the bidding process with open eyes and can decline to bid where they disagree with the contractual relations created by a specific bidding process.

The Court ultimately found that the exclusion clause did not rise to the level of it being substantially incontestable that public policy had been offended; rather, the Court held that Yukon had an interest in the organizational structure of the procurement process which included the ability to shield themselves against liability. The Court emphasized that the Plaintiff was aware of the exclusion clause prior to bidding and accepted to bid anyway.

The Court found that the exclusion clause was clear and less ambiguous than exclusion clauses previously scrutinized by the courts. The Plaintiff was a sophisticated commercial party capable of appreciating the exclusion clause and remained willing to bid. It was not the Court’s place to step into the shoes of the Plaintiff and protect it from its own participation in the bidding process.

It is likely material that the Court emphasized that the staff responsible for the error were not acting in any kind of conflict of interest or that Yukon was otherwise engaged in fraudulent practices in awarding the contract to the Plaintiff’s competitor. Likely evidence of some intention to disfavour the Plaintiff intentionally would have triggered other concerns and increased the likelihood it might have secured success at the Court of Appeal.

Mega Reporting Inc. v. Yukon (Government of) is a cautionary reminder to bidders that, although the party making a request for a proposal or calling for bids is to run a bidding process in a transparent and reasonable way consistent with its tendering process, the offering party can nonetheless contract out of and absolve itself of liability for unintentional errors in that process. Bidding parties are expected to understand and appreciate the contractual relations created in the tendering process and should not bid where they do not wish to accept the terms of such relations.


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

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

In recent years, several communities all over the world have sought to means by which to reduce the accumulation of plastic in our natural environment. The reasoning being that the accumulation of plastics in the natural environment is having and will have detrimental effects on the biosphere, ecosystems and a number of vulnerable species.

Communities such as the City of Victoria recently enacted a bylaw prohibiting businesses from providing single-use plastic bags to customers and otherwise charging a fee for paper and reusable bags. Some additional information on the bylaw and the City’s initiative to reduce plastic bag use can be found here. The Bylaw’s preamble is as follows:

The purpose of this Bylaw is to regulate business use of single use checkout bags to reduce the creation of waste and associated municipal costs, to better steward municipal property, including sewers, streets and parks, and to promote responsible and sustainable business practices that are consistent with the values of the community.

The Bylaw was not without some controversy including a legal proceeding commenced by the Canadian Plastic Bag Association, an organization dedicated to the growth of the plastics business, which argued that the Bylaw was beyond the power of a municipality to pass given that the Bylaw was, in fact, environmental regulation and passed without the approval or agreement of the provision government. Canadian Plastic Bag Association v Victoria (City), 2018 BCSC 1007 (CanLII) is the judgment arising out of that dispute.

The process of the creation of Victoria’s Bylaw was a long one beginning with a petition supported by 2,500 signatures. That petition was followed up by a report to council estimating that Victoria businesses distributed more than 17 million single-use plastic bags a year and as many as 798,000 of those were littered and not collected. Additional reports received underscored the impact of plastic bags on littering, landfill use, increased costs of municipal services and negative environmental effects.

The Canadian Plastic Bag Association brought their petition about the Bylaw pursuant to s. 623 of the Local Government Act which section permits an application to be brought to set aside bylaws where they are illegal. The challenge posed by the Canadian Plastic Bag Association was that Victoria had no authority to pass its bylaw.

In its analysis, the Court noted that s. 8(3) of the Community Charter permits local governments to exercise power concerning protection of the natural environment and that s. 8(6) of the Community Charter permits local governments to regulate businesses by bylaw. The Court went on to recognize that caselaw and s. 4(1) of the Community Charter call on the courts to take a broad and purposive approach when determining whether municipal legislation authorizes exercises of certain power. This includes considering both the purpose and effects of bylaws under review.

The Court noted caselaw that provided that the purpose of bylaws is gleaned from its wording as well as the minutes and public submissions surrounding the adoption of such a bylaw.

Ultimately the Court found that the Bylaw was properly characterized as one which regulated business and that any environmental purpose or effect was in addition to that the purpose and effect as a regulation of business. The reports received by council indicated a number of municipal concerns raised directly by the use of plastic bags including waste collection, sewers, drainage and litter control. The Court cited case law that makes it clear that bylaws can be passed which have more than one purpose and, even if the dominate purpose is beyond the power of a local government, a bylaw can still be saved if it still serves a purpose within the powers of a local government.

Victoria’s Bylaw, ongoing concerns about plastic accumulation and the decision in Canadian Plastic Bag Association v Victoria (City), 2018 BCSC 1007 (CanLII) all suggest that we may continue to see a number of communities in our province enact bylaws aimed at reducing plastic waste generated through business activities regulated by municipal authorities and that, so long as they are properly crafted, such bylaws may be expected to be upheld on any challenge.


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

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

Recently the Canadian Government passed Bill C-46, which on its face appears to substantially change the legal landscape concerning impaired driving in Canada. In order to provide Provincial Governments with sufficient time to digest the new law and its implications the law does not take effect until October of 2018.

The new law appears to be an attempt to crack down on impaired driving as part of the legalization of cannabis. Indeed, the new law increases the penalty for impaired driving from 5 years to 10 years. From an immigration standpoint, this means that an impaired driving conviction will now fall within the definition of serious criminality under section s. 36(1) of the Immigration and Refugee Protection Act, which will mean that permanent residents in Canada could face deportation if convicted of impaired driving in Canada.

In addition, the new law removes the language in the criminal code that requires peace officers to have reasonable suspicion before requiring an individual to provide a sample of their breath into an approved screening device (ASD). This change in particular will likely spur considerable litigation under the Charter given the new ability of peace officers to arbitrarily request potentially incriminating evidence from individuals.

The new law also provides for roadside screening for impairment due to cannabis, but how this is going to be accomplished remains to be seen, as no roadside device has yet been approved to accurately assess impairment due to cannabis consumption.

While the Provinces have yet to weigh in on how this new law will be implemented, it is clear that on the Federal level, under the criminal code, the penalties for driving while impaired for citizens and non-citizens alike are now more severe.

The BC Court of Appeal has pronounced a new decision which lenders in BC and their lawyers will want to be aware of in Leatherman v. 0969708 BC Ltd. et al, 2018 BCCA 33.  This decision represents a significant development in the area of foreclosure law and enforcement of security.

The Leatherman case involved a demand mortgage meaning that the “balance due date”, or the date that the full balance of the funds loaned and secured by the mortgage was due, was on demand.  Until the demand was made by the mortgagees, the mortgagors were obliged to make an annual payment of the accrued interest.  The “maturity date” was defined in the mortgage as the balance due date shown on the mortgage form (i.e. on demand), or any earlier date on which the mortgagees could lawfully require payment of the mortgage money.  The mortgagor first failed to make an interest payment in October of 2013 and continued to fail to make the required interest payments in the subsequent years.  The parties exchanged correspondence in relation to the debt and its repayment in November of 2015.  The mortgagees made formal demand for payment of the principal and interest due under the mortgage on November 9, 2016 and filed a petition for foreclosure in December of 2016.

The mortgagors responded to the foreclosure petition by arguing that the foreclosure was statute barred because the two-year limitation period commenced on November 1, 2013 when the mortgagors first failed to make a required interest payment.  The mortgagees argued that the triggering event for the limitation period was the failure of the mortgagors to comply with the demand for payment made on November 9, 2016.

The relevant provisions of the Limitation Act in BC are as follows:

“Discovery rule for claims for demand obligations

  1. A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made.

Discovery rule for claims to realize or redeem security

  1. A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises.”

The Court of Appeal held that the mere insertion of the term “payable on demand” does not render a mortgage a “demand obligation”.  The Court elaborated that the agreement in question included both a demand obligation and a contingent obligation.  Specifically, the Court held that the covenant to pay the principal, considered on its face and alone, was a demand obligation to which section 14 of the Limitation Act applied.  In other words, the principal balance of the mortgage was not payable until demand.  However, the obligation to pay interest was not a demand obligation because it was payable without demand on October 31 of each year.  In addition, the mortgage provided that the mortgaged property was security for the debt, such that section 15 of the Limitation Act applied and the right to realize on the security arose upon discovery of that right.  Discovery of that right arose upon default, namely when an interest payment was not made under the mortgage.

Essentially, the Court of Appeal held that the limitation period for realizing on the security over the property arose upon the mortgagors’ default by the failure to pay interest, and that the limitation period would expire two years after that default, unless the limitation period was postponed.  Two ways that a limitation period for a debt can be postponed include the debtors (a) signing an acknowledgement of the debt in writing or (b) making a payment.  However, the Court of Appeal also held that the limitation period as it relates to the debtors’ unsecured promise to repay the principal portion of the loan only started upon demand, except to the extent of the interest payable more than two years prior to the commencement of the foreclosure proceeding.

In light of the decision of the Court of Appeal in Leatherman, lenders need to be aware of the different starting points for limitation periods to enforce obligations arising under a demand loan secured by a mortgage and a personal promise to pay.   If you are a lender that becomes aware of a default under a demand loan, you should contact your legal advisor to discuss the issue of limitation periods for enforcing your debt claim.

A landlord entering into a commercial lease should consider the rights it wishes to have if the tenant is not performing its obligations. The following is a list of the options most landlords have to choose from when dealing with a tenant who is not performing its obligations:

(a)                Keep the lease alive: This option is related to the common law of breach of contract and is used where there is a reasonable prospect of payment by the tenant or a guarantor/indemnitor/co-covenantor on the lease. The lease remains in place and is binding on the parties, and the tenant still has the right to exclusive possession and to enjoy the property without interference from the landlord. The rent continues to become due each month, and the landlord can sue for rent overdue (not future rent).

Advantage: If there is a reasonable prospect of payment, this option will result in the tenant being liable to pay all rents under the lease as they become due.

Disadvantage: This is really slow.

(b)                Accept tenant’s repudiation and terminate the lease: This option, by terminating the lease, ends the tenant’s obligations to pay any rent which is not yet due. The tenant’s right to occupy the premises is at an end, and the landlord may retake possession and manage the premises as it sees fit.

Advantage: Landlord gets possession of the premises quickly. May be a preferred option where the rents have gone up since the lease was entered into and the landlord expects to be able to re-lease at higher rents.

Disadvantage: No right to sue for future rents.

(c)                 Affirm lease, re-let on tenant’s account: This option is only available if drafted into the lease. In this option, the lease continues and the tenant is liable for the rents as they become due each month. The landlord exercises its right to arrange for a new tenant to take over the premises and the rents received are applied against the rent owed by the tenant. If there is a shortfall, the tenant makes up the difference.

Advantage: The tenant continues to be liable for the rent to the end of the term.

Disadvantage: Only available if drafted into the lease, and then only in accordance with the words of the lease.

(d)                Accept repudiation, terminate lease, give notice of a claim for recovery of damages: This option allows the landlord to take possession of the premises right away, and sue the tenant for the loss of present value of unpaid future rent. This loss must be mitigated by the landlord by re-leasing the premises to a new tenant. The amount that the landlord receives as a judgment is the difference between the rent under the terminated lease and the rent under the replacement lease for the balance of the term. There is a precise form of notice which must be provided to rely on this option.

Advantage: Allows the landlord to claim damages for the future unpaid rent.

Disadvantage: Requires a particular form of notice. This only provides recovery for future rents where the landlord is only able to re-lease at a lower rate. If the rents are better, then there is no loss for future rent.

Landlords should review their commercial leases to ensure that they have the language in their leases to allow them the flexibility to react to a situation with a tenant. If you would like a review of your standard commercial lease for these and other issues, please contact Andrea East.

Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the areas of Business Law and Commercial Leasing. You can reach Andrea at 250-869-1245 if you would like assistance.

 

I have a lot of corporate clients. These clients often have small businesses, or sometimes large businesses that they are one of many shareholders in. Who has the right to inherit these shares when the shareholder dies? If the shareholder has a Will, then these shares will be administered by the Executor of that Will and pass through the shareholder’s estate.

Any business owner, small or large, should make sure they have advance planning in place to determine what will happen to the shares in a private company in the event that one of the shareholders passes away. It is in the best interests of company directors, owners and their family members to resolve this ahead of time and have intentions properly documented.

It is not something that grieving relatives and remaining directors should have to deal with after a death. As a surviving business owner, do you really want to suddenly own a business with your deceased partners soon to be ex-wife? Not only awkward, but potentially catastrophic for any business. There are several different arrangements that can be made by business owners ahead of time, to avoid issues.

A Shareholder’s Agreement is a popular solution. These often include clauses that allow existing shareholders to buy out the deceased shareholder and pay proceeds to the estate.

If you own a business, it is crucial to obtain legal advice on these issues.

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.

A fiduciary relationship is a relationship in which one party places distinct trust, confidence and dependence on another. In Canadian law, directors are fiduciaries of the corporations for which they act. This is expressed, for example, in Peoples Department Stores Inc. (Trustee of) v. Wise, 2004 SCC 68 at paras. 34 to 39 and has been codified into s. 122(1)(a) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 and s. 142(1) of the B.C. Business Corporations Act, S.B.C. 2002, c. 57.

There is no fixed set of rules for what fiduciary duties are owed by a fiduciary; rather, the Courts examine facts to determine what fiduciary obligations might exist in which situations (Blue Line Hockey Acquisition Co. v. Orca Bay Hockey Limited Partnership, 2009 BCCA 34 at para. 56). Despite that, case law has developed a generalized guideline to examining fiduciary duties and such duties are guided by concepts of a duty of good faith, a duty of loyalty and a duty of disclosure.

In the recent case of WestCorp Solutions Ltd. v Lancaster, 2018 BCSC 789 (CanLII), the court was called upon to determine how far the concept of fiduciary duties might be stretched to provide relief for a company when their director breaches his or her fiduciary duties.

In the case, Mr. Collins was formerly a director of the Plaintiff, WestCorp, who admitted that he breached his fiduciary duties to WestCorp by secretly incorporating a company described in the case as PSE along with his business relation, Mr. Lancaster, in order to usurp a corporate opportunity of WestCorp. The case turned on the degree to which WestCorp could seek relief against Mr. Lancaster and PSE for being parties to Mr. Collins’ breaches of his fiduciary duties.

The court started its analysis of the law by confirming that directors of a corporation are precluded from obtaining any property or business advantage belonging to a company or which the company was negotiating if done secretly or without approval. Approval requires full disclosure of facts to be meaningful. Mr. Collins breached that duty when he incorporated PSE and obtained opportunities which belonged to WestCorp. Mr. Collins worsened his breach by failing to disclosure his conflict of interest even in the face of statutory demand to do so. Mr. Collins’ conduct was characterized as equitable fraud.

The court went on to confirm Mr. Lancaster was deemed to have known of Mr. Collins’ fiduciary obligations and to recite law (Air Canada v. M & L Travel Ltd., 1993 CanLII 33 (SCC), [1993] 3 S.C.R. 787) which confirmed that a person could be found liable for participating in a breach of trust where:

  1. there is a fiduciary duty;
  2. the fiduciary breached that duty fraudulently and dishonestly;
  3. the stranger (Mr. Lancaster) to the fiduciary relationship must have knowledge of both the fiduciary relationship and the dishonestly/fraudulent conduct of the fiduciary; and
  4. the stranger must have participated in the dishonestly/fraudulent conduct of the fiduciary.

The court found that Mr. Collins concealed his involvement in PSE because he was aware of and was attempting to avoid his fiduciary obligations. Mr. Lancaster worked in concert with Mr. Collins to incorporate PSE and keep it secret from WestCorp. At best, Mr. Lancaster was being wilfully blind of Mr. Collins’ duties to WestCorp. Mr. Collins and Mr. Lancaster worked together to try to conceal their involvement in PSE. Mr. Lancaster participated in misleading the CEO of WestCorp with regards to opportunities that PSE was seeking to usurp.

In the end, the court determined that Mr. Lancaster knew of Mr. Collins’ fraudulent and dishonest breaches of his fiduciary duties and participated in same. He ignored the conflicts of interest that Mr. Collins had and participated in the usurping of WestCorp’s opportunities.

Importantly, when crafting a remedy, the court found that liability for a breach of a fiduciary duty is strict and that WestCorp didn’t need to prove it would have obtained the impugned opportunities to claim damages in respect of same. The court ultimately found that the loss of profits related to the impugned opportunities exceeded $1,000,000 but reduced damages 25% for the negative contingencies related to the possibility that such opportunities may not have panned out as anticipated. The court made Mr. Collins, Mr. Lancaster and PSE jointly and severally liable for the damages but relieved Mr. Collins from payment as he has already paid $450,000 in settlement.

WestCorp Solutions Ltd. v Lancaster is illustrative of the fact that parties who participate in breaches of fiduciary duties may wear the same liability as the fiduciary they act in concert with. The duties that a director or officer may owe a company are treated seriously by the court and a great deal of law has been made to give corporations the teeth necessary to seek recompense for directors or officers who might steal a corporation’s opportunities. A director or officer can participate in seeking to obtain an opportunity of a corporation, but that requires full disclosure of the intention to do so and the related conflict that arises as a result.

_____________________________________________________________________________________________

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

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

Bill C-78 was recently introduced into the house of commons proposing some revisions to the federal Divorce Act legislation which has been in place more than 30 years.

The federal Divorce Act applies only to married couples and deals primarily with divorce, child and spousal support. Each province in Canada has overlapping provincial family legislation governing support issues and property division for both married and unmarried couples. The provinces in Canada all deal with property division and common law spouses a little bit differently but the Divorce Act applies to all married couples across the country..

The summary provided for in BillC-78’s first reading is that it intends to:

  1. amend terminology related to custody and access and replace it with more neutral terms related to parenting;
  2. reiterate the primacy of the best interests of the child in family law decisions and establish a non-exhaustive list of criteria for determining those best interests;
  3. encourage the use of out of Court dispute resolution processes such as collaborative practice and parenting coordinators;
  4. explicitly refer to family violence as a consideration in the best interests of the child analysis and introduce measures to assist the Court in addressing family violence; and
  5. simplify the production of information for support purposes and the enforcement mechanisms for recipients of support.

Interestingly, essentially all of these proposed revisions (with the exception of those dealing with production and enforcement of support) have also been addressed and incorporated into BC’s provincial Family Law Act which became Law in 2013.

The terms custody and access have become loaded, diluted and lost their meaning over time and in my experience the transition to focusing on the terminology of parenting time has been a positive one which focuses the interests back on the child.

Mechanisms which promote the provision of income information for support purposes is currently an area which can be costly and frustrating for recipients of support and I am hopeful that the proposed amendments will streamline this process. Child and spousal support has been shown consistently to assist in lifting children out of poverty in our country and facilitating that goal is a worthy pursuit.

There are several areas where the proposed revisions do not go far enough and some areas which in my view should be addressed which are not covered in the proposed amendments.

The Canadian Bar Association in their December 2017 letter made many requests for revisions including addressing the area of child support in shared parenting arrangements (arrangements where the children live close to equal time with both parents) which are becoming more common and where the current legislation can be confusing and lead to disputes. Unfortunately, there are no revisions proposed to clarify and simplify that particular subject.

I would also like to see out of Court mechanisms be strengthened further and even mandatory in certain situations.

In summary, the proposed changes were long overdue and certainly a positive step forward in creating a more equitable and child focused approach for divorcing couples in our country.

The North American Free Trade Agreement (NAFTA) came into force January 1, 1994 and was the follow-up agreement to the Canada-United States Free Trade Agreement (CUSFTA), which was initially conceived of by U.S. President Ronald Reagan.

While scholars and pundits have debated the benefits of NAFTA over the past 24 years, U.S. President Donald Trump has unambiguously said that NAFTA, as it is currently drafted, does not benefit the United States of America. Negotiations between the member countries (Canada, Mexico, USA) to revise NAFTA have recently stalled and the future of the NAFTA remains to be seen.

NAFTA is generally thought of as regulating cross-border trade in automobiles, agriculture and industry, however, one lesser known aspect of NAFTA that has been receiving more attention lately is the provision that addresses cross-border movement of professional workers. Indeed, NAFTA also grants what is known as “TN status” or non-immigrant status to citizens of the United States, Canada and Mexico who are professionals in one of the professions listed in Appendix 1603.D.1.

Appendix 1603.D.1 includes 60 different professional categories including: doctor, lawyer, engineer, accountant, teacher and social worker, among others.

As a result of this provision, Canadian, Mexican and American professionals are able to work in one of the other two countries for up to 3 years at a time. While these 3 year visas can be renewed indefinitely they are non-immigrant visas and cannot be used to remain in the other country permanently.

It remains to be seen whether NAFTA will survive, but in the meantime TN status remains a legitimate and viable option for Canadian, Mexican and American professionals wanting to live and work outside of their home country.

Finally, while one can apply for a TN visa at a port of entry there are specific requirements that must be followed in order to qualify and having the assistance of a Canadian or American Immigration lawyer, as the case may be, is advisable in order to ensure a smooth and efficient process at the border.

For many spouses, in addition to the emotional turmoil that results from a martial breakdown, dealing with matters of family property and debt often adds another measure of tension to an already stressful situation. However, avoiding the division of property altogether is surely not a recommended approach.

The case of Johnston v. Johnston Estate 2015 BCSC 1479, although somewhat exceptional, clearly illustrates the financial consequences that can emerge if spouses fail to resolve their property disputes in a timely manner.

In this case, the Johnston’s lived in a house until their separation in 1971. At the time of their separation their Vancouver home was worth approximately $40,000.

Although the Johnston’s initially discussed a separation agreement, the evidence was that neither party, who at various periods had legal counsel, was proactive in reorganizing their financial affairs following their separation. Mr. Johnston did not insist for a buy out of his interest in the family home (both he and his wife were registered on title as tenants in common) on the belief that Ms. Johnston in turn would demand spousal support from him. Neither party sought a divorce and for 44 years they continued to be legally married.

Because the Johnston’s continued to be married, the two-year limitation period that ordinarily commences following the date of divorce for married couples (or, for unmarried couples from date of their separation) did not begin to run. Following the passing of his former spouse (although technically still his wife), Mr. Johnston brought an application to have the home sold and ½ of the proceeds of the sale to go to him with the remaining to his wife’s estate.

As one might expect, the value of their Vancouver home soared from $40,000 in 1971 to $1.2 million in 2015 at the time of Mr. Johnston’s court application. Ms. Johnston’s estate disputed Mr. Johnston’s entitlement to the home on the basis that they had a verbal agreement and that Mr. Johnston would not claim an interest in the home. However, the parties had not formally executed a separation agreement and Mr. Johnston still remained on title despite not living in the residence for 44 years and having not paid the mortgage or property taxes which Ms. Johnston had done.

The principal issue before the court was to determine Mr. Johnston’s rights to the home under the Partition of Property Act and his intention to have it sold. The court ruled that Mr. Johnston indeed had the legal right to put the home up for sale, and that he was entitled to receive half the proceeds of any sale of the home at current fair market value.

This accords with section 87 of the Family Law Act which provides that unless by agreement or a court order provides otherwise, the value of family property must be based on:

(a)        its fair market value (i.e. the price property would fetch, if offered on the open market to parties acting at arm’s length); and

(b)        the value of family property and family debt must be determined as of the date an agreement is made, or the date of it being brought before the court.

Much to the chagrin of Ms. Johnston’s estate, the value of her estate was reduced considerably, and her beneficiaries received far less then what they would have received had Ms. Johnston properly negotiated (by way of a separation agreement or by court order) a buy out of Mr. Johnston’s interest in the family home.

This case serves as both a cautionary tale, and a stark reminder that when spouses do not make concerted efforts to settle family affairs upon breakdown of a relationship, a party may bear significant financial consequences as a result.

British Columbia has had a new provincial government since July 2017. Over the past 10 months, the John Horgan government has revised or sought to revise various workplace laws affecting employers and employees in British Columbia. This blog post highlights some of those revisions.

Employer Health Tax

A new a payroll tax dubbed the “employer health tax” will take effect on January 1, 2019, to offset the loss in revenue from medical service plan (MSP) premiums which are being phased out. The tax will apply incrementally to companies with payrolls over $500,000, increasing at $250,000 intervals. The below chart summarizes the impact of the new tax on businesses.

Annual BC Payroll Annual Tax Tax as a percent of Payroll
  $500,000 or less $0      0.00%
  $750,000 $7,313      0.98%
  $1,000,000 $14,625      1.46%
  $1,250,000 $21,938      1.76%
  $1,500,000 $29,950      1.95%
  over $1,500,000 $29,250 plus 1.95% of payroll over $1.5 million      1.95%

Notably, MSP premiums are not being phased out until 2020. This means that employers who cover the cost of MSP premiums may have to pay both the cost of premiums and the new tax in 2019.

Leaves of Absence

A bill expanding the leave provisions of the Employment Standards Act became law on May 17, 2018.

The most notable change is that pregnancy and parental leave periods are being expanded to allow new mothers to take upwards of 18 months of leave total. Pregnancy leave and parental leave are two separate leaves of absence that are commonly referred to singularly as “maternity leave”. Presently, new mothers are entitled to a “maternity leave” of up to 12 months encompassing both pregnancy leave and parental leave. The amendment aligns British Columbia with federal legislation permitting mothers to collect employment insurance for 18 months. Non-birth and adoptive parents will be entitled to a leave of up to 15 months.

Compassionate care leave is expanding from 8 weeks to 27 weeks. Compassionate care leave is available to employees who provide care or support to a family member facing a medical condition with a significant risk of death.

The government has also introduced the following new leave provisions:

  • Child Death Leave – parents of a child who dies before his/her 19th birthday are entitled to an unpaid leave of up to 104 weeks; and
  • Crime-related Child Disappearance Leave – parents of a child who disappears because of a crime are entitled to an unpaid leave of 52 weeks.

Labour Relations Code

The government has commissioned a committee of three persons to review and make recommendations with respect to the Labour Relations Code. The committee is engaging stakeholders and expected to complete its report in August 2018, following which the government will likely revise the laws governing unionized workplaces.

Workers Compensation Act

The Workers Compensation Act was amended on May 17, 2018, to make it easier for first responders to receive mental health support arising from injuries at the workplace. First responders who are exposed to traumatic events are now presumed to have suffered mental disorders arising from their work. This presumption is rebuttable; however, unlike other workers, first responders who witness traumatic events do not have to prove that a mental disorder was caused by the nature of the work on a balance of probabilities.

Minimum Wage Increase

The minimum wage is increasing by 34% over 4 years as outlined in an earlier blog post. At the time of our earlier blog post, the increase in minimum wage did not affect alternate wage earners including workers who serve alcohol; however, the government recently announced plans to increase the minimum wage to include these workers. According to the Ministry of Labour website, wages for the five worker groups currently subject to alternate minimum wage rates will change as follows:

  • Liquor servers – incremental increases on June 1 each year, beginning June 2018, until the general minimum wage is reached, of at least $15.20 per hour, in 2021.
  • Piece-rate farm workers – 11.5% increase to all piece rates on January 1, 2019, with further study to take place.
  • Resident caretakers – 11.5% increase June 2018, followed by increases of 9.5%, 5.4% and 4.1% in 2019, 2020 and 2021, respectively (wages vary depending on building size).
  • Live-in camp leaders – same per cent increases as resident caretakers, until they reach $121.65/per day, in 2021.
  • Live-in home-support workers – abolishment of the alternate minimum wage for this group, as it covers very few or no workers. The general minimum wage will apply to any workers remaining in this category.

Given the changes highlighted in this blog post, employers are encouraged to make appropriate plans to absorb increased business costs.

The job of Executor is an onerous one. You cannot be forced to take on the job when you are named Executor. If you don’t want it, renounce right away. A renunciation is easy to draw up, and it relieves Executors from their appointment, but it should be done immediately, without any “intermeddling” in the Estate. An Executor can turn down their role right at the very beginning of their appointment, but leave it too long and it may be too late.

What is intermeddling? If an Executor has already commenced their role (gone to the bank or the credit card companies, for example, holding out that they are Executor), then it may be too late to renounce. Simply paying a few bills or paying for the funeral would most likely not be enough, and one could still renounce.

However, if some time has passed and an Executor really needs to “quit” then they must ask the Court for permission to withdraw. If the Court gives permission, the Executor will have to prepare a detailed accounting of everything they have done with / for / in relation to the Estate. Something to consider when “backing away” from the Executor role mid-way through – if the assets are left in a risky / unresolved state, then the Executor could incur personal liability.


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

While the law often concerns itself with compensating children who are injured as a result of negligence, it sometimes also has to grapple with whether a child can be held responsible for the injuries or loss suffered by others. When a child can be found liable for the injuries of another was front and centre in Perilli v Marlow, 2018 BCSC 495 (CanLII).

In that case the plaintiff, Mr. Perilli, had been jogging when he came upon the 10-year-old child defendant, Ms. Marlow, riding a bicycle on the left shoulder of a road next to her two friends, who were riding on a sidewalk. As the plaintiff attempted to go around Ms. Marlow, she maneuvered to the right and Mr. Perilli caught her tire and fell, sustaining various injuries including a shoulder injury that required surgical repair.

Mr. Perilli sued Ms. Marlow for various infractions of the Motor Vehicle Act and for negligent conduct including cycling without due care and attention, changing direction without signalling and cycling recklessly or carelessly. As discussed in my article, Cyclists: Enjoy the Ride in Safety, cyclists generally have the same rights and responsibilities as the driver of any other vehicle. Mr. Perilli also sued Ms. Marlow’s grandparents based on failing to properly instruct Ms. Marlow on the safe operation of a bicycle.

There was no dispute that Ms. Marlow owed a duty of care, but the limits of that duty and whether she acted reasonably in the circumstances was up for debate.

The court began its analysis by observing that a violation of a traffic law brings with it a heightened duty of care but does not establish negligence in and of itself. The court then went on to observe that the standard of care is not perfection, but that of an ordinarily prudent person. This standard is then further adjusted for children to the reasonable conduct of a child of a similar age, intelligence and experience. Children are assumed in fact and in law to have momentary lapses in judgment and awareness.

On the more technical arguments the court found that Ms. Marlow had not breached the statutory requirements to not be on a sidewalk, ride abreast or to signal when turning (she had adjusted her course, not turned), but the court did find she had breached the statutory requirement to ride as near as practicable to the right side of the road. The court later found that riding on the left side of the road had no impact on the accident (although that was also a breach of the Motor Vehicle Act).

The court observed that Ms. Marlow had noticed Mr. Perilli and had moved closer to the sidewalk to let him pass. She looked back twice, but Mr. Perilli did not take this opportunity to pass. When Mr. Perilli did not pass, Mr. Marlow returned her attention forward and returned to her original riding position a few seconds later. It was when she returned to her original position that Mr. Perilli caught her tire and suffered his injuries.

The court found that Ms. Marlow had reasonably observed Mr. Perilli and moved out of the way to allow him to pass. It was also reasonable for her to conclude on looking back again that he was not going to pass and to return to her original riding position. The court did not find this maneuver to be sudden or dangerous. The court rejected the notion that Ms. Marlow was required to continually check for Mr. Perilli, which would have put her and others at greater peril. Though her actions were not perfect, Ms. Marlow’s conduct met the standard of care imposed on her.

Had liability been found, it was conceivable that Ms. Marlow’s grandparents or parents could have been held responsible for her negligence or that there may have been some insurance policy that might have paid compensation for Mr. Perilli’s injuries. Although the Parental Liability Act can make parents responsible for damages or harm caused by their child up to $10,000, the act requires that the child intentionally takes, damages or destroys the property of another and, as such, would not apply to Perilli v Marlow.

Perilli v Marlow is illustrative of the standard of care applicable to children and that children can and are found liable for breaching that standard of care. The case is also illustrative that the law accounts for the age, experience and intelligence of a child and that the chance of a finding of liability against a child generally grows more remote as a child defendant is younger. Perilli v Marlow is a reminder that it is good practice for parents and caregivers to instill in their children a general sense of responsibility for their actions and awareness of the law in order to reduce the chances that a child is exposed to harm or that their conduct might result in any liability of the child or their parents or caregivers.


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

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

The BC Courts recently had the opportunity to consider the enforceability of a lease clause requiring a tenant to pay 6 months’ future rent on termination for breach of lease (Tropic Holdings v. Roots and Wings Enterprises Ltd., 2018 BCSC 439). The court found that the 6 months’ future rent clause was unenforceable because the requirement to pay that much rent was not related to the actual losses of the landlord arising from having to re-lease the premises to a new tenant, and was an unenforceable penalty.

The landlord recovered the unpaid rent past due and damages equal to the difference between base rent payable by the original tenant and the replacement tenant. In that case, it was the difference of $1,750 per month for 3 years, or $63,000.00. The amount which would have been payable under the 6 months’ clause, had it been enforceable, was $99,750.00.

Landlords need to ensure that they are not inadvertently including unenforceable penalty clauses in the default provisions of their leases. Clauses requiring payments on default are only enforceable where they meet fairness requirements and are a pre-estimate of the damages the landlord would be entitled to at court. If you would like a review of your lease, please contact Andrea East.


Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the areas of Business Law and Commercial Leasing. You can reach Andrea at 250-869-1245 if you would like assistance.

For better or for worse, injuries are a part of childhood and the process by which children learn to explore the world around them. While minor cuts, bumps and bruises are accepted as part of this process, the law can and does require those who supervise children to ensure the children enjoy a relatively safe play environment. Where this responsibility lies and the outer reaches of it are explored in the recent decision of Deo v Vancouver School District No. 39, 2018 BCSC 133 (CanLII).

In Deo the plaintiff was a grade two student who suffered serious eye injuries after a tree branch struck him during a lunch break. The plaintiff alleged the schoolboard was liable for his injuries under the law of negligence and the Occupiers Liability Act, R.S.B.C. 1996, c. 337 because the school board failed to properly maintain the school grounds, failed to warn students of the hazards on the grounds, failed to properly supervise the activities on the grounds and failed to call an ambulance after the injury occurred.

On the day of the incident, three of the plaintiff’s classmates were gathering leaves under a maple tree located on the school grounds. In the minutes before lunchbreak was over, the classmates asked the Plaintiff, being the tallest person in class, to help them reach a branch of the tree to gather more leaves. While exactly what happened is unclear, at some point a branch of the tree was held down and released. When the branch was released it struck the plaintiff in the eye and caused injuries.

The plaintiff’s grandmother was on the school grounds at the time and brought the plaintiff into the school immediately after he was injured. The school nurse attended to the plaintiff. The plaintiff refused to show the first aid attendant his eye and refused an icepack. The attendant suggested to call 911, but the plaintiff’s grandmother indicated not to. The attendant helped the plaintiff’s grandmother call the plaintiff’s father, who was also the plaintiff’s emergency contact.

The plaintiff waited with his grandmother for his father to arrive at the school, after which they all travelled to a doctor’s office. The doctor immediately sent them all to a children’s hospital upon inspecting the plaintiff’s eye. It was about two hours in total from the time the plaintiff’s father was contacted to the plaintiff arriving at the hospital. Upon arriving, the injury was determined to be serious, requiring hospitalization and surgery.

In reviewing applicable law and legislation, the court found that the standard of care applying to the school was one that considers what a careful and prudent parent would consider reasonable efforts to ensure safety in all the circumstances. The reasonable standard is not one of perfection and schools are not expected to protect children from any possible risk of harm.

The court rejected the notion that the branch in question had a tempting property making it potentially and obviously dangerous, finding instead that any liability that might exist in regard to the tree would result from the school not making efforts to check in on and regulate how children might play or interact with the tree. In other words, suitable supervision was enough to discharge the school’s duties in respect of hazards posed by the tree generally.

The court found that the school did not implement clear rules about interacting with trees, but did find that there was nothing negligent about an approach where playground monitors managed relatively minimal risks through supervision. The court found it to be too much to expect a school to make an ever expanding list of rules that might cover all unsafe interactions with non-hazardous items; it was not realistic to imagine that staff could give instructions on all conceivable misuse of non-hazardous items or that students would remember such instructions if given.

The court went further and found that a lack of set playground rules was not negligent nor indicative of a failure to implement a proper supervision plan; it was sufficient to teach children generally about safe play and enforce that through a properly implemented supervision. The school had assigned playground supervisors who were expected to scan and monitor students and to use their common sense in determining when to intervene. Special attention was paid to younger students. Nothing about the circumstances suggested the plaintiff’s injuries were the result of an accident waiting to happen.

The only allegation of negligence which found any fertile ground was that the first aid attendant had not properly responded to the plaintiff’s injuries. The court considered both what was dictated by the first aid attendant’s first aid training and the school board’s policies.

From her training and the circumstances before her, the first aid attendant ought to have assessed the injuries as one a potential category two eye injury, being a more serious injury requiring 911 to be called for further medical attention. The school board’s first aid policy also provided that, in the case of any doubt about whether such services are required or not, medical services should be called. Even in circumstances where a student refused treatment, the school board’s policy provided that 911 should be called if a student’s health might be in imminent danger.

Having at least ascertained that the plaintiff was hit in the eye by a tree branch and having not been able to better assess the injury in question, the first aid attendant ought to have erred on the side of caution. She was trained beyond an ordinary parent and, as such, the prudent and careful parent analysis had to consider this training. The court found that it was negligent not to have called 911, even if ultimately – as the circumstances tended to suggest – the plaintiff and his grandmother would have refused treatment.

Having rejected all the other grounds of liability and finding that the injury itself was not caused by any negligence on the part of the school district, the question that was left for a later court date was the degree to which, if any, the negligent act of failing the call an ambulance which delayed treatment contributed to or exacerbated the injuries suffered by the plaintiff.

Deo is a useful case in understanding that the courts still consider accidents to be accidents and do not impose an unrealistic and burdensome standard on schools or any other institution to protect others from harm. It is equally illustrative that it remains good practice to implement and ensure adherence to procedures that help guard against foreseeable hazards, provide a safe environment and ensure that, when injuries do occur, there is a practice in play that will see victims have access to proper and timely medical attention. While the school board appeared to have proper policies in place, it was the lack of adherence to those policies that left the school vulnerable to potential damages.


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

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

The B.C. Government has introduced draft legislation to amend the Real Estate Development Marketing Act (“REDMA”) that imposes obligations on developers in relation to the assignment of Purchase Agreements for the sale or lease of strata lots.

The draft legislation requires developers who choose to allow assignments of Purchase Agreements to include in a Purchase Agreement the following:

  • a term prohibiting the assignment of the Purchase Agreement without the prior consent of the developer;
  • a notice that the developer must collect certain information about each of the parties to the Assignment Agreement, and the terms of the Assignment Agreement, before the developer can consent to the assignment;
  • a term requiring all the parties to an Assignment Agreement to provide the developer with the information required under REDMA.

The developer must collect information relating to the terms of the Assignment Agreement, and in relation to each party to the Assignment Agreement, the identity, and contact and business information, prior to consenting to the assignment of a Purchase Agreement.

The developer must retain a copy of the Assignment Agreement and file with an administrator appointed under the Property Transfer Tax Act (the “Administrator”) information relating to the Assignment Agreement, and to the parties to the Assignment Agreement, that the developer was required to collect.

The proposed changes expand the administrative obligations on developers in relation to the assignment of a Purchase Agreement, and exposes developers to substantial financial penalties.

Developers are exposed to administrative fines for failing to comply with the obligations under REDMA, and the draft legislation has increased the potential penalty from $50,000 to $500,000 for a corporation and from $25,000 to $250,000 for an individual.

The draft legislation has also included the failure to collect and file the required information with the Administrator as an offence under s.39 of REDMA, and has increased the maximum penalty for an offence for each of a corporation and an individual from $100,000 to $1.25 million for a first conviction, and from $200,000 to $2.5 million for a subsequent conviction.

For Purchase Agreements that have been entered into prior to the new legislation coming into force, developers will be required to make reasonable efforts to collect, retain and file the information set out in the draft legislation prior to consenting to an assignment.

Of particular concern for developers is that they will be exposed to substantial financial penalties for failing to collect and file information that must come solely from 2 other parties. If the parties provide incorrect information to the developer, and that information is filed with the Administrator, the developer would be in breach of its obligations under REDMA. There are no provisions exempting the developer from a breach of its obligations if it makes reasonable efforts to collect the information.

This draft legislation is only proposed at this point and is not in force. It is possible that the legislation may not come into force or may be amended prior to it becoming law.

An Attorney appointed to act for another adult under a Power of Attorney has an onerous task. They must keep good records and only act in the adult’s best interest. They must never use the Power of Attorney to benefit themselves. Unfortunately, the lines often become blurred. This is sometimes an issue when an older/ailing parent appoints their adult child or children as their Power of Attorney. The children want to avoid Probate so they think it is a good idea to start gifting the parent’s cash to themselves; they try to add their name to the parent’s bank account etc. All these things are seen as “benefitting” yourself under the Power of Attorney. This is a breach of their fiduciary duty, which is the highest standard of care owed to the adult. It is also incompatible with the Law.

By the same token, an Attorney cannot transfer real estate to themselves. So, the adult children cannot use the Power of Attorney to try and add their name as Joint Tenant(s) on the parent’s title to try and avoid Probate (which is rife with issues in and of itself). This is specifically barred by the Power of Attorney Act and any transfer would be disallowed at The Land Title’s Office.

The Attorney’s role is as a protector, a guardian and a fiduciary, whose role is to safeguard the adult’s assets. If the parent wanted to take these steps, they could have done so, while still capable. Their Power of Attorney, absolutely should not.


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.

Government and non-government actors that solicit bids for contractors for management or construction projects must follow a fair and transparent process for doing so. One of the key elements of a proper bidding process is that the soliciting party (the party requesting bids) and a bidder (the party seeking to obtain the offered contract) cannot cooperate with each other to alter the requirements of the tendering process. This ensures the integrity of the tendering process and that it is fair for all potential bidders. The recent Court of Appeal decision of Maglio Installations Ltd. v. Castlegar (City), 2018 BCCA 80 (CanLII) reaffirmed the limits on how much flexibility a soliciting party has in adopting, changing, altering or forgiving requirements of an invitation to bid.

In Maglio, the city of Castlegar had put out an invitation to tender for the construction of a recreational swimming area. Marwest Industries Ltd. (“Marwest”) submitted the bid that was accepted by Castlegar. Maglio Installations Ltd. (“Maglio”), another bidder, argued that Marwest’s bid was non-compliant with the tendering requirements and that the court should award the contract to Maglio since its bid was compliant. In particular, Maglio argued that Marwest did not include a preliminary construction schedule, which was a tendering requirement, and that Castlegar erred by relying on the following clause in forgiving said omission:

The City reserves the right to reject any or all tenders, to waive defects in any bid or tender documents and to accept any tender or offer which it may consider to be in the best interest of the City. …

The Court of Appeal reviewed the established principles for disputes involving tenders described as the Contract A/Contract B framework established in R. (Ont.) v. Ron Engineering, 1981 CanLII 17 (SCC), [1981] 1 S.C.R. 111 as was further summarized in Graham Industrial Services Ltd. v. Greater Vancouver Water District, 2004 BCCA 5 (CanLII) and detailed further in M.G. Logging & Sons Ltd. v. British Columbia (Forests, Lands & Natural Resource Operations), 2015 BCCA 526 (CanLII). The principles of that framework include:

  1. an owner’s invitation to tender constitutes an offer to all potential bidders;
  2. a contract, “Contract A”, comes into existence when a contractor submits a bid in response to the invitation to tender;
  3. the terms and conditions of Contract A are governed by the terms and conditions of the invitation to tender;
  4. the rights of the parties crystallize when a tender capable of acceptance is submitted on an objective view of the material requirements of the invitation to tender;
  5. if Contract A fails to materially comply with tender specifications, the rights of the parties to Contract A do not come into existence;
  6. assessing material compliance is a two-part test analyzing (1) whether there is a failure to address an important/essential requirement of the tender documents and (2) whether there is a substantial likelihood that the defect would have been significant to the owner’s decision-making process when considering the rational of the invitation to tender requirements, effective fair competition and reasonable expectations of parties; and
  7. discretion clauses in an invitation to tender cannot be utilized to give force to materially non-compliant bids; rather, such clauses can only be used to forgive minor defects in substantially compliant bids.

After considering the principles detailed, above, the Court of Appeal upheld the trial judge’s decision that the preliminary construction schedule was a material component of Castlegar’s invitation to tender and, as such, Castlegar erred in forgiving Marwest’s non-compliance with that material requirement. The Court of Appeal further upheld that it was inappropriate to rely on Castelgar’s post-bid conduct to assess whether Marwest’s bid was compliant or whether Castlegar could properly exercise the discretion clause to forgive non-compliance. In other words, the time to assess compliance is at the time a bid is submitted. The Court of Appeal went on to affirm that the preliminary construction schedule was neither redundant nor useless.

Maglio Installations Ltd. v. Castlegar (City) is a helpful review of the law applying to invitations to tender and bids submitted in respect of same. Prudent bidders ought to ensure that their bids are compliant with all the requirements of invitations to tender and must carefully assess whether any non-compliance in their bids is in respect to any material requirements of the invitation to tender. A bidder submitted a non-compliant bid is submitting a bid that may be subject to outright rejection or even challenge by competing bidders on the basis that it does not comply with the material requirements of an invitation to tender.

Likewise, those soliciting bids on a project should carefully analyze what the material requirements of their project are, to draft their invitations to tender accordingly and to ensure that their consideration of any submitted bids follow a fair process that takes into account all material requirements of the invitation to bid. Any consideration of accepting non-compliant bids should only be done with careful consideration as to whether the non-compliance that may be forgiven is in respect of a material requirement or would potentially subject the soliciting party to legal challenge for their decision to accept a non-compliant bid.


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

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

Insurance is an important tool allowing landlords and tenants to allocate risk in a commercial lease. Here are some recommendations:

  1. Your Team. The lawyer and the insurance advisor work together to review and advise on the insurance clauses in the commercial lease. The goal is to ensure that the tenant’s insurance and landlord’s insurance work together to ensure no coverage gaps, avoid over-insuring and protect all parties in a commercially reasonable way. The insurance advisor can advise on insurance products available to meet these goals, and the lawyer drafts the language to legally obligate the parties to obtain the insurance needed to implement the plan.
  2. Certificates of Insurance. The commercial lease will include a clause which gives the landlord the right to require that the tenant provide copies of certificates of insurance confirming that the tenant has acquired all insurance required by the lease. This provides the landlord with the opportunity to check that all insurance required to implement the plan has been obtained, and includes all the endorsements and requirements set out in the lease. Further, failure to provide certificates of insurance can be a warning sign of problems pending for a tenant, as a tenant facing financial difficulties may not be able to provide the certificate on time. Landlords can use the annual requirement to provide certificates of insurance to keep an eye on tenant compliance.
  3. Waiver of Subrogation. Normally, the insurer insures the loss and pays out for the loss suffered by the person who bought the insurance (and any additional insureds). After paying out, the insurer has the right to “subrogate” or “step into the shoes” of the insured and sue in court the person who caused the loss to recover the damages. For example, the landlord is insured and suffers a loss caused by the negligence of a tenant. Insurance pays out, and then the insurer sues the tenant in the name of the landlord to recover the loss.

    Waiver of subrogation means that for any person named in the waiver, any loss caused by that person will be paid out by the insurer but the insurer will not sue that person. So, if in the above example the landlord had waived subrogation in favor of the tenant, then the insurer would pay out the loss but not sue to recover from the tenant.

    The insurance strategy of both the landlord and the tenant waiving subrogation allows for simplification of risk allocation clauses in the lease, by requiring each party to look to their own insurance to cover the loss without worrying about who caused the damage. This also allows the simplification of other risk allocation clauses in the lease.

  4. Special Negotiated Terms. Sometimes tenants will negotiate special insurance rights. For example, a government tenant may wish to self-insure or a large corporate chain may negotiate provisions relating to an umbrella insurance policy for multiple locations. When landlords are considering special insurance provisions, consider also how those special insurance provisions will be managed if that tenant later requests an assignment of the lease. The landlord should consider adding language to the commercial lease limiting those special terms to the original tenant.

If you have a standard form commercial lease which you would like to have reviewed for risk allocation recommendations, or if you are looking to develop a new standard form lease, give me a call.


Andrea East is a business lawyer at Pushor Mitchell LLP practicing in the areas of Business Law and Commercial Leasing. You can reach Andrea at 250-869-1245 if you would like assistance.

Canadian Construction Documents Committee (“CCDC”) standard form contracts often govern the relationship between owners and general contractors for construction projects in Canada. Although these contracts may be subject to modification, they usually include clauses which (a) govern how notices of default must be given by one party to the other, and (b) set out parties’ rights and obligations arising upon issuance of a notice of default. This usually means that a party delivering a notice of default cannot terminate a contract without giving the other party notice of the alleged default and an opportunity remedy it. An issue that parties often struggle with is whether they may terminate a CCDC contract without strictly observing the formalities of the contract.

The Supreme Court of British Columbia addressed this issue in Contura Building Corporation v. 0772552 Ltd., 2018 BCSC 466 (“Contura”). In Contura, the plaintiff (contractor) and defendant (owner) entered into a CCDC Design-Build Stipulated Price Contract with respect to the construction of an industrial building. During performance of the work, the contractor issued a notice of default which alleged several defaults relating to the failure to provide required geotechnical reports and make timely payments to the contractor. By the notice, the contractor also advised the owner of the contractor’s right to terminate the contract if the default was not corrected within five working days of receipt of the notice. The contractor subsequently terminated the contract when the owner failed to respond or address the issues in the notice of default. The contractor sued the owner for breach of contract, and the owner counterclaimed against the contractor for breach of contract.

In giving its reasons for judgment, the Court summarized some principles drawn from the case law regarding the termination of CCDC contracts:

  1. A CCDC contract may be terminated for fundamental breach, but this would be an “exceptional remedy”. This remedy would only be available in circumstances where the breach is so serious that the foundation of the contract has been undermined because the thing bargained for has not been provided.
  2. The notice requirements of CCDC contacts must be strictly interpreted. A notice of default must give sufficient detail so as to enable the receiving party to understand its import and leave no doubt as to the possible or unexpected consequences of noncompliance. The delivering party bears the onus of identifying the breaches upon which it relies. The receiving party is not required to satisfy the court that it did not understand the notice.
  3. If a notice of default does not contain the clarity the law requires, it is improper. The result of an improper notice is that the time period set out in the notice never begins to run, and termination by the delivering party at the end of that period is wrongful.

Applying the aforesaid principles to the case, the Court held that the contractor was entitled to rely on the notice of default to terminate the contract. However, the Court went further and held that the contractor was also entitled to terminate the contract on the ground of fundamental breach. The Court held that the owner’s breaches were so serious that the foundation of the contract had been undermined because the thing bargained for (presumably payment) had not been provided. The Court awarded the contractor what it determined to be the approximate profit it would have earned had the contract been performed by the owner.

This case highlights some important considerations for parties contemplating the termination of a CCDC contract:

  1. The circumstances which justify termination of a CCDC contract, other than in accordance with its terms, will be rare. Defaults for which the innocent party may be compensated in damages will rarely justify termination on the ground of fundamental breach. The “safest” means of terminating a CCDC contract would be to follow the termination provisions in the contract.
  2. A party delivering a notice to terminate must clearly set out the reasons for default and the consequences thereof. The question of whether a notice of default is sufficiently clear is to be assessed objectively; the question of whether the receiving party understood the notice is irrelevant.
  3. An improper notice will not trigger the start of the time period set out in the notice. If a party terminates a contact in reliance on an improper notice, the termination will be improper and the party would likely liable to the other for damages. A party seeking to rely on a notice of default should, before issuance, review the requirements of the contract to ensure meticulous compliance with its terms.

On February 21, 2018, the provincial government released its budget for 2018. The budget announced a slew of measures to attempt to address housing affordability in the province. One such measure is a “speculation tax” on residential properties located in urban areas of the province. The intent of the speculation tax is to increase the supply of housing in those areas by levying an extra property tax on properties that are left vacant. The budget was sparse on details about how the tax would actually be implemented and many homeowners have been left wondering how it could affect them and their properties.

On March 26, 2018, the Ministry of Finance released new information in an attempt to clarify how the speculation tax will operate. This article is a brief compilation of the important publicly-known information about the speculation tax as of March 29, 2018.

What areas will be covered by the speculation tax?

The government’s intent is that the speculation tax will apply to properties located in urban areas. Currently, the speculation tax will apply to residential properties located in:

  • Metro Vancouver (excluding Bowen Island and Electoral Area A, but including UBC)
  • The Capital Regional District (excluding the Gulf Islands and Juan de Fuca)
  • Kelowna and West Kelowna
  • Nanaimo-Lantzville
  • Abbotsford, Chilliwack and Mission

Who will have to pay the tax?

Anyone who owns a residential property in a designated area will be required to pay the speculation tax unless they qualify for an exemption.

What exemptions will be available?

There will be two main exemptions from the speculation tax:

  1. Primary residences: residents of British Columbia who live in a property that they own and the property is their primary residence will be exempt from the speculation tax.
  2. Long-term rentals: properties that are rented for at least six months in a year will be exempt from the speculation tax.

Essentially, the speculation tax will not be payable by owners of property if the property is their primary residence or they rent the property to others to live in. Notably, the long-term rental exemption applies only if the rentals are at least 30 days in length. This means that properties that are only rented by the owners on a short-term basis through online services and apps will not qualify for the exemption, even if they are rented in aggregate for more than six months in a year.

When will the speculation tax be in effect?

Although the government has not announced a date that the tax will take effect, it is anticipated that it will apply for properties owned at the end of 2018 and onward.

What will the rate of the speculation tax be?

The speculation tax is based on the assessed value of the property.

In 2018, the rate of tax will be 0.5% of a property’s value.

In 2019 and subsequent years, the rate of tax will be:

  • 0.5% for residents of British Columbia who are Canadian citizens or permanent residents,
  • 1% for Canadian citizens or permanent residents who are not residents of British Columbia, and
  • 2% for persons who are not Canadian citizens or permanent residents.

Residents of British Columbia who are Canadian citizens or permanent residents will be eligible for a $2,000 tax credit that will be applied immediately to any speculation tax that they owe. This means that they will only owe speculation tax on properties above $400,000 in value and only on the value of the property that is in excess of that amount. If BC residents own multiple properties that are subject to the speculation tax, this credit will only apply to one property.

What do we not know yet about the speculation tax?

Although the announcements from the Ministry of Finance on March 26 helped clarify some of the confusion surrounding the speculation tax, there are still many questions left to be answered. For example:

  • will there be an exemption from the speculation tax for properties subject to strata bylaws that prohibit rentals?
  • will there be a requirement that a person live in the property for a certain amount of time in the year to be able to claim the exemption for primary residences?
  • if a property is not a person’s primary residence, but he or she happens to live in it for more than six months in a year, will they be exempt from the tax even though the property is not rented and is not his or her primary residence?
  • if the property is not a person’s primary residence, but a family member of the owner lives in the property and does not pay rent, will the property be exempt?
  • “satellite families” will pay the higher 2% level of tax and not be eligible for the principal residence exemption, but what is a satellite family and how will that be determined?

We hope to receive some clarity on the above soon. It is expected that the provincial government will release draft legislation for the speculation tax this fall.

Settlement agreements that conclude litigation are often reached once the parties have gotten to a point of a loss of faith in one another or a complete breakdown in whatever relationship they may have enjoyed pre-litigation. It is probably for this reason that a question often asked of lawyers by their clients is “How do I assure that the other side doesn’t breach the settlement given?” The case of Shewchuk v IBM Canada Limited, 2017 BCSC 2211 (CanLII) concerns the consequences where a party refuses to abide by settlement terms.

At the heart of the case was the settlement of a wrongful dismissal dispute. It was uncontested that the parties reached a settlement as to the settlement amount, but the defendant failed to pay $5,250 of the settlement funds. When confronted by this shortfall, the defendant took the position that it would simply not pay the shortfall on the basis that the plaintiff would recover the shortfall when he filed his taxes.

An application seeking to enforce the settlement, seeking special costs and seeking punitive damages was filed. In the face of the application, the defendant paid the shortfall; however, the plaintiff went ahead with the application to seek costs and punitive damages.

The court found that the defendant’s conduct and the implied terms of the settlement contract confirmed that the defendant was to deliver the settlement funds as soon as reasonably possible. The court further found that the defendant’s delay in payment amounted to a breach of the term to pay the settlement funds as soon as reasonably possible.

The court went on to find that the defendant’s conduct was high handed and that there was no tenable basis for its refusal to pay the settlement funds; however, the defendant’s conduct was not found to be so malicious or reprehensible so as to attract punitive damages.

The court reflected on a history of prior judgments awarding special costs for breaches of settlement agreements and that the defendant demonstrated a lack of candour or forthrightness all of which grounded an order for special costs. In awarding special costs, the court effectively made the plaintiff whole for the legal expenses incurred in an effort to collect the remaining settlement funds including, presumably, the costs of the application.

While settlement agreements can be drafted in a manner so as to give an explicit, contractual right to seek full indemnification for the costs to enforce a settlement agreement in the face of any breach of the settlement, Shewchuk v IBM Canada Limited provides some assurance and is a reminder that the terms of a settlement agreement are contractual and enforceable by the court. A party that breaches a settlement agreement risks both being forced to complete the agreement and having to pay the legal costs of the party seeking to enforce the agreement.

In short, the courts are prepared to enforce settlement agreements and make the innocent party whole with respect to any costs associated with enforcing a settlement agreement.


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

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

If you have a business with a few shareholders, you may have a Shareholders’ Agreement in place. This forms part of your estate planning whether you like it or not. A Shareholder’s Agreement is most commonly used where there are multiple, unrelated shareholders. It addresses governance and division of profits of course, but it may (and should) also address what happens if one shareholder passes away.

Is there a buyback of that shareholder’s shares upon death which allows the family members to receive cash for the shares? That way, the remaining shareholders maintain control over who is a shareholder – they may not want to suddenly be running a business with the late shareholder’s estranged brother, for example.
A Shareholders’ Agreement is a very important component of any business owner’s succession 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 Wills and Estates at Pushor Mitchell LLP in Kelowna.

As I’ve written previously, the intersection of defamation and social media remains a minefield and social media users are well-advised to treat social media posts no differently from any other form of publication; that is, to assume that defamatory social media posts can lead to being sued. Posting on social media grants little or no special immunities or exemptions from the ordinary law of defamation and, if anything, the potential for substantial damage awards following social media posts may be higher than in other, more traditional forms of printed defamation.

This risk was put into sharp focus in the recent decision of Hee Creations Group Ltd. v Chow, 2018 BCSC 260 (CanLII) in which the plaintiff alleged that it had been defamed in over a dozen social media posts published by the defendants. The posts related to the defendants’ discontent related to wedding services which the plaintiff provided. The plaintiff sought damages for loss of its wedding services business which it said resulted from the posts and the defendants defended themselves on the basis that their comments were justified or constituted fair comment. Ultimately the case focused on only one defendant.

Issues began with the pre-wedding photographs. The defendant maintained that she was dissatisfied with the photographs due to poor quality, quantity and repetition. The court described the defendant’s dissatisfaction as “unrelenting”. The defendant stopped payment on the balance of the wedding services contract as a result. The defendant purported to impose the condition that another photographer of their choice would provide an opinion on whether the quality of the photographs were satisfactory before full payment would be made, a stipulation which was rejected by the plaintiff.

The plaintiff advised that if the contract price was not paid in full, there would be no finalization of the pre-wedding and wedding photographs and that it would not be responsible for storing the photographs. The wedding photographs were taken despite the non-payment of the full contract price.

The plaintiff offered to terminate the contract and refund a portion of the funds already paid on the basis that the contract would be terminated (with the implication being that there would be no retouching or further obligation), which offer was rejected. The defendants commenced a Small Claims action alleging breach of contract and the plaintiff counterclaimed for the unpaid balance of the contract price.

Around the same time that the Small Claims proceeding was commenced, the defendants took to various English and Chinese social media platforms to publish a number of posts about the plaintiff which resulted in the latter being sued for defamation. The posts were lengthy, inaccurate, disparaging and made a number of very serious allegations including that the plaintiff:

  • engaged in unfair practices;
  • took inferior quality photographs;
  • made threats;
  • violated fair practices;
  • was involved in hostile business operations, extortion and illegal business tactics;
  • deliberately breached contracts;
  • engaged in bait and switch tactics;
  • lied about photography experience;
  • lied in front of the court in the Small Claims proceeding;
  • doctored evidence in the Small Claims proceeding;
  • scammed new immigrants and students; and
  • various other nefarious acts and improper or illegal business practices.

The defendants also sent their complaints to local media in an attempt to have them investigate the plaintiff.

Plaintiff’s counsel made multiple demands that the defamatory posts be removed and that an apology be published, but the defendants rejected these demands. It was only after judgment was granted against the defendants in the Small Claims action that an apology was extended and made public on social media.

The court found the defendants to not be credible witnesses; with one being found to engage in calculated and well-rehearsed precision, to feign innocence and that it was not credible for the defamatory publications to be considered impulsive.

The court found that the social media posts were plainly defamatory and referred explicitly to the plaintiff’s. Evidence demonstrated that the posts were republished, were accessed thousands of times and produced dozens of replies by several different people. The court rejected that the impugned parts of the posts were true or constituted fair comment and, even if it was wrong in that analysis, that the posts were malicious.

Having made those findings, the court had to assess general damages, which are intended to compensate the plaintiff for the loss to its reputation as a result of the defamation. Generally, this is an assessment of the loss of good-will. The court pointed out that, within a particular cultural community, reputational damage can be exasperated.

The plaintiff’s business slowed considerably after the defamatory posts which the court found to be connected to the posts. Accordingly, the court awarded $75,000 in damages for loss of goodwill, loss of business reputation and economic losses. The court awarded an additional $15,000 in aggravated damages based on there being a lack of an apology and the defendants advancing and maintaining legal defences of justification that were bound to fail. The malicious nature of the publications attracted punitive damages in the amount of $25,000.

Hee Creations Group Ltd. v Chow is a reminder of both the power and risks of social media. Posts on social media have the possibility to be disseminated to a wide audience in a very short time and can have both immediate and lasting effects on the subjects of posts. Social media users are well cautioned to appreciate the difference between a fair and legally justified expression of opinion and reflection of experiences and when posts cross into the defamatory realm of maliciousness and/or untruthfulness. Substantial damage can be caused by defamatory posts for which the poster may be held responsible and have the capacity to have substantially negative effects on both the subject of the post and the poster.


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

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

phi·lan·thro·py is defined in the English Dictionary as “altruistic concern for human welfare and advancement, usually manifested by donations of money, property, or work to needy persons, by endowment of institutions of learning and hospitals, and by generosity to other socially useful purposes.” Donations to charity via a Will are a main source of income for many Canadian charities. Money left to charities through these bequests has a major impact on the work charities are able to do and is extremely important to all sorts of charitable causes.

As a Wills and Estates Lawyer, I often assist my clients with structuring their bequests to a charity or charities of their choosing. For the most part, philanthropic clients will either (1) leave a specific sum of money to a charity or charities of their choice prior to distributing the residue of their Estate, or (2) distribute their entire Estate to charity. Less philanthropic clients, who at least want to mention a charity in their Will, may distribute their Estate among friends and family in its entirety, stating that if none of their beneficiaries are alive when they pass away (for example if there has been a ‘common disaster’ such as a family cruise and the ship sinks) then their Estate shall be left to charity. Arguably, this is not philanthropic at all because the likelihood of all family members pre-deceasing the Testator is slim, meaning that the charity will very likely never see any money from the Testator at all.

Deciding how you distribute your hard earned money is an emotional and complex process. There is obviously not only one way of doing it. Some folks believe that they work hard all their lives so that the children they leave behind can afford to do the things that they themselves never could. Other folks take the view that the children they leave behind should work hard, just as they did, and not be given an ‘easy ride’ through a large inheritance. These are the folks that like to leave large sums to charity……often much to the displeasure of the relatives they leave behind.

Whether you leave money to charity in your Will, help a stranger on the street or donate your precious time to charity all are fundamentally important to our society and enable charities to continue to do the amazing work that they do.

Executing an up to date Will that reflects your current wishes will not only provide you with peace of mind, but it will minimize the costs of probating and administering your estate, which in turn will maximize the inheritance your beneficiaries will receive, charity or otherwise.


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.

The purpose of security in a commercial financing transaction is to give the lender comfort (or security) that the lender will have access to assets if the borrower fails to meet its repayment commitments.

The purpose of this article is to summarize the features of some of the more common security types used in commercial financing transactions. In any particular transaction, the security used depends on the asset types.

The following are common security types:

(a) Mortgage. A mortgage is the security type used in connection with land, and interests in land. In addition to typical land mortgages, mortgages can be used to secure interests in certain types of leases. We frequently see mortgages which are for a fixed amount of an advance, or for “all obligations” which work for a line of credit or revolving loan. Mortgages are registered in the Land Title Office, or in the case of mortgages of interests on First Nations Lands, in the Indian Lands Registry.

(b) Personal Property Security Agreement. Personal property is all property types which are not interests in land, and include equipment, inventory, cash, accounts and investments. The most common type of security agreement is a “general security agreement”, sometimes referred to as an “All-PAAP”, which stands for “all present and after acquired property”. This means that the security applies to everything the borrower currently owns, and everything which the borrower may own in the future. The other form of security agreement is a “specific security agreement”, which is limited to particular personal property. Specific security agreements are sometimes used to limit the security to a particular class of property or even a particular location (such as a project site). Special rules apply for serial numbered goods, like vehicles, and for consumer goods owned by individuals. Security agreements are registered in the Personal Property Registry.

(c) Guarantee. A guarantee is a promise by someone other than the borrower to be responsible for the debts owing to the lender at the time the borrower defaults on the loan. Often a guarantor will be an individual who is a shareholder in a corporate borrower, although sometimes the guarantor will be another more established company in a corporate group. Guarantees are not registered, although frequently lenders will require the guarantor to also grant a mortgage or a general security agreement to support the guarantee.

(d) Assignments and Postponements. Where the borrower is a corporation, the lender will frequently require that each of the shareholders of the corporate borrower sign a document that confirms that shareholder loans are assigned to the lender and the payment of any money which the shareholder may be owed by the corporate borrower will be delayed until after the lender is paid. Assignments and postponements are registered in the Personal Property Registry.

(e) Promissory Note. A promissory note is evidence of the debt to the lender.

Typically, a lender will require other agreements, reports and materials as a condition of advancing a loan. If you would like assistance in reviewing a Commitment Letter from a lender, or if you are a lender wishing to have a legal review of any security, please contact us.


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

Until now the law has been that negligent drivers, whether careless, drunk or distracted, have had to pay for the full extent of the damage that they cause to other users of the roadways. If the BC Government and ICBC implement the suite of changes that they announced on February 6, 2018, the legal rights of innocent victims to compensation will be severely limited. Attorney General David Eby announced that the Government plans to impose a $5,500 cap on claims for pain and suffering for “minor injuries”.

For context, in 1972 the Supreme Court of Canada set the cap for all pain and suffering claims, whether minor or catastrophic, at $100,000, indexed for inflation, which is now approximately $380,000. Since then hundreds of claims have been resolved in our courts and thousands more outside of court using that benchmark of reasonableness.

ICBC’s argument rests on a faulty premise: that truly “minor claims” are being compensated as “major claims” and that these out-of-control awards are bankrupting the system. Is there any evidence to support that assertion? Of course not, but that doesn’t seem to be troubling anyone in Government.

The Government plans to redefine a “minor injury” and if their goal is to save money we should expect them to cast as wide of a net as possible. It’s not a medical term. They haven’t settled on a definition, but they are floating the idea of capturing soft tissue injuries and anxiety that are not disabling beyond 12 months.

So if a distracted driver slams into your car from behind at a red light and leaves you with life-long neck and back pain, but you can power through the pain and get back to work, your injury may be considered “minor”. If a drunk driver hits a pedestrian in a crosswalk causing disabling injuries that keep you homebound for 11 months, your injuries may be considered “minor”.

This is unacceptable.

They have not yet figured out who will decide whether an injury is minor, except to say that it will be a “medical professional” (a doctor? A nurse on ICBC’s payroll?), nor have they sorted out what recourse a victim will have if they disagree with ICBC’s determination that their injuries are minor except to suggest that the Civil Resolution Tribunal, an online dispute resolution system whose adjudicators have no specialized training in this area, might play a roll.

Most importantly, they have no idea whether this will save any money.

It’s not too late to voice your opposition. If you or someone you know has been the victim of negligent driving, you know how wrongheaded these proposals are. The time to speak up is now, before it’s too late.

Visit www.roadbc.ca for more information and to sign the petition. Contact your MLA and say no to caps!

In a recent article I wrote about the necessity of obtaining new liability waivers whenever there might be any doubt if one applied. I also noted that, while liability waivers are considered draconian and set aside or read done whenever appropriate, they can be and are often upheld.

In the recent decision of Alton v Lower Mainland Motocross Club, 2017 BCSC 2460 (CanLII), the court ultimately determined to uphold a liability waiver and the decision reiterates the law applying to liability waivers.

The plaintiff in the case was thrown from his bike when at the corner of a motocross track an impaled his leg on either some brush or a fallen tree. He sued the organizing national authority, the owners of the land and the organization which leased the motocross track. The defendants primarily defended on the basis that the plaintiff signed a waiver. The plaintiff replied to this defence claiming that he was not aware he signed a waiver, the waiver didn’t apply or that the waiver only applied to certain of the defendants.

As part of his applying to participate in the 2012 season, the plaintiff executed and submitted as four page document including a waiver which he signed on the third and fourth pages. The document contained a clear waiver which visually highlighted that it was a broad and complete waiver. Prior to the race in question, the plaintiff also signed a further one page document with a similar waiver to the four page document.

The plaintiff gave evidence that no one explained the one page waiver and that he did not understand the legal consequences of the waiver despite also conceded he understood that injury and even death were common risks with his sport.

A witness for the defence who witnessed the execution of the one page waiver gave evidence, which was accepted, that the plaintiff’s name was not prefilled on the waiver, that she witnessed the execution of the waiver, that it was her practice to explain that the waiver meant a rider gave up their rights to sue and that she would insist that a rider understood the waiver before signing.

As with the decision covered in my prior article, the Court in Alton cited Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways), 2010 SCC 4 (CanLII) as identifying three questions a court must assess in respect of the exclusion clause found in waivers:

  1. whether as a matter of interpretation the exclusion clause applies to the circumstances;
  2. whether the exclusion clause was unconscionable at the time the contract was made; and
  3. whether the court should nevertheless refuse to enforce the valid exclusion clause because of the existence of an overriding public policy.

The court then went on to analyze whether the exclusion clause applied to the circumstances of the case before it. In doing so, it cited Chamberlin v. Canadian Physiotherapy Association, 2015 BCSC 1260 (CanLII) at paras. 56-60 which contains the following material observations (citations excluded):

  • waivers are subject to ordinary principles of contractual interpretation; however, the additional rule is added that waivers are interpreted to cover only those matters which were specifically in the contemplation of the parties at the time the release was given;
  • whether a waiver applies can be framed as a twofold analysis in which the court examines whether the terms of waiver are broad enough to encompass the plaintiff’s claims and whether the plaintiff is bound by the terms of the waiver;
  • there is no general requirement for the party relying on the waiver to take steps to inform the signing party of the onerous terms or to ensure the signing party understands the terms except where:
    • the waiver is signed in circumstances in which it was not the signing party’s own act to sign;
    • the waiver is induced by fraud or misrepresentation; and
    • where the party relying on the waiver knew or had reason to believe the signing party was under a mistake as to the waiver’s terms.

The court noted that the analysis of whether a waiver applies is not purely subjective, but involves and object component; requiring the court to ask what a reasonably careful person would believe when reading a waiver.

The court found that both waivers were clearly titled with bold, capital letters. The longer waiver was intended to be reviewed and completed at home without any rush to return same; giving the plaintiff full opportunity to review it. The one page waiver contained the same release as the longer waiver and a waiver the plaintiff signed for the previous season. The Plaintiff also spoke English and had full mental capacity. There would be no confusion as to the nature of the waivers when put in front of the plaintiff and their purpose was clearly marked.

The waivers included broad and comprehensive language which clearly included the types of injuries suffered by the plaintiff. The court also found that the defendants were included in the categories of releasees covered by the waiver.

While it is unfortunate that the plaintiff in Alton was hurt without the ability to seek compensation for his injuries, he executed a clear waiver in circumstances in which the nature and coverage of the waiver ought to have been clear to any reasonably careful signatory. The case illustrates that waivers can be a complete bar to the right to sue and that participants being provided a waiver have the option to opt out of the activity if they are not comfortable with solely bearing the risk associated with it. The case is also illustrative of the need for parties offering to provide risky activities to the public to have a clearly worded waiver and to implement good systems that ensures that such waivers will be upheld.


Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning negligence and/or a liability waiver, he’d be happy to assist you. He may assist and/or refer you to counsel who may assist in drafting and implementing effective liability waivers. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.
The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning negligence and/or a liability waiver, he’d be happy to assist you. He may assist and/or refer you to counsel who may assist in drafting and implementing effective liability waivers. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.
    The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

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

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

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

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

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

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

    Say no to caps.

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

    What Is Title Insurance?

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

    Do I have to Purchase Title Insurance?

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

    Does Title Insurance Do Anything For Me?

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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


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

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

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

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

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

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

    On the day of completion:

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

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

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

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

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

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


    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a potential legal dispute concerning a contract of purchase and sale or another contractual dispute, he’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.
    The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

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

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

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


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

    The Voluntary Disclosures Program (VDP) is a form of “tax amnesty” program available in Canada. It allows taxpayers to avoid prosecution and penalties for past failures to report income, gains, GST or certain other tax filings. The rules are about to get stricter so you should not delay if you want to take advantage of this program.

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

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

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

    These considerations are not part of the current VDP.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

    WFN also has published zoning maps and servicing maps.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

    Other changes include:*

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

    * Please note that the above list is not exhaustive.

    The new Real Estate Rules can be found here.

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

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

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

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

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

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

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

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

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

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


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

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

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

    The key features of this new form of lease are:

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

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

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


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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


    If you have any questions about any litigation matters, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155, 250-869-1156 or at burgess@pushormitchell.com. You may also contact anyone in our litigation group.
    The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

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

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

    Mistake

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

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

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

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

    Duress

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

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

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

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

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

    Lack of Capacity

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


    If you have any questions about any negligent construction, please do not hesitate to contact me, Jeremy Burgess, via 1-800-558-1155, 250-869-1156 or at burgess@pushormitchell.com. You may also contact anyone in our litigation group.

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

    The provincial government recently announced plans to reinstate the British Columbia Human Rights Commission following a 15 year hiatus. British Columbia is the only province in Canada without a human rights commission.

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

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

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

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

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

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

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

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

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

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

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

    Improper Disclosure

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

    Improper Advantage

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

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

    Nature and Consequences of the Agreement

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

    What does your Executor have to do?

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

    What do an Executor’s duties include?

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

    A recent case from our Court of Appeal articulates the standard required to establish an entitlement to aggravated damages resulting from a wrongful dismissal.

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

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

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

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

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

    Flooding

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

    Applicable Law

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

    “Buckshee” Leases

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

    Enforceability Issues

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


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

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

    Extension Underinsured Motorist Protection

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

    Top up your Basic Autoplan with Four Coverage Options

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

    How does Extension Underinsured Motorist Protection help you?

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

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

    Get coverage for each Vehicle in your Household

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

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


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

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

    Division of Property and Debt

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

    Spousal Support

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

    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.

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

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

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

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


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

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

    When does a Constructive Dismissal Arise?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about a strata property dispute or being unreasonably disturbed by your neighbours, he’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


    Jeremy Burgess is a litigation associate at Pushor Mitchell. If you have any questions about any real property disputes, he’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.
    The foregoing is for informational purposes only and is not legal advice, nor should be construed as such.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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