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Pushor Mitchell is committed to helping our clients during this uncertain time. Our lawyers are here to help you respond to the challenges you presently face. As always, the health and safety of our clients, staff and lawyers is our top priority. We remain fully operational, using a combination of remote work and in office work to meet our clients’ needs. While working remotely, we can manage meetings virtually and document sharing electronically to continue to provide a high level of service. Our office is open for client meetings by appointment only. We have instituted all recommended protocols to maintain health and safety. Thank you.

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

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

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

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

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

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

The court at paras. 26 and 28 cited the following passages from Nouhi v. Pourtaghi2019 BCSC 794:

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

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

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

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

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

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

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


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including liability concerns. 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

  • taking common prescription medications like sleeping pills, opioids and medication used to treat anxiety and depression also poses a risk, a new UBC study of millions of drivers finds.
  • drivers prescribed sedating antipsychotics have a 35 per cent increased risk of causing a road collision.
  • people on commonly prescribed benzodiazepines (like Valium or Xanax) increase their risk by 25 to 30 per cent.
  • high-potency opioids such as morphine showed a 24 per cent increased risk of road collisions.

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

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

No evidence of tolerance

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

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

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

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

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

Specific messaging needed

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

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

This study was published Monday in Lancet Public Health.


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

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

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

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

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

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

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

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

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

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


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

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

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

Sir Richard Branson is quoted in a Fast Company article:

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

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

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

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

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

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

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

So in summary:

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

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


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

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

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

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

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

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

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

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

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

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

If not;

  • Was the harm suffered by the plaintiff reasonably foreseeable;

If yes;

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

If yes, a prima facie duty arises;

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

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

Applying these factors, they Court found as follows.

1) Sufficiently Analogous Precedent

The Court reviewed several previous cases and concluded that:

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

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

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

2) Foreseeability

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

3) Relations of Proximity

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

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

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

Conclusions

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

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

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


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including liability concerns. 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.

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

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

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

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

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

COVID-19 Vaccines in the Workplace

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

Issues at Play

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

Human rights are protected by legislation in every jurisdiction in Canada. They are quasi-constitutional which means that they generally take precedent over other legislation. Human rights legislation prohibits discrimination based on protected grounds. Mandatory vaccination policies engage the following protected grounds: religion (e.g., certain religions oppose vaccinations), mental disability (e.g., some individuals have medically-recognized needle phobias) and physical disability (e.g., some individuals are prone to allergic reactions resulting from vaccination). Individuals with a protected ground must be accommodated to the point of undue hardship.

Employee privacy rights are similarly protected in every jurisdiction in Canada. The hallmarks of privacy legislation are consent, reasonableness and proportionality. In short, an organization must not collect, use or disclose personal information about an employee without the consent of the individual or unless permitted by statute. But, even with consent, there are limits on what can be collected. The information requested by an employer must be proportional to the necessity of the information. Information must be collected in the least intrusive way possible. We see this principle play out in accommodation cases where an employee takes time off for a medical leave. The employer is entitled to receive the employee’s prognosis (i.e., the timeline for getting better) but not the diagnosis (i.e., the actual illness causing the absence). We also see this principle in random drug testing cases where the Supreme Court of Canada has held that random drug testing is generally not permissible even in safety sensitive environments because it is an unreasonable intrusion into an employee’s privacy.

With respect to occupational health and safety, every jurisdiction in Canada has distinct rules pertaining to the steps employers must take to ensure the health and safety of workers.

The above are issues that largely protect the interest of employees. But employee rights are not absolute and need to be balanced against workplace safety (including the safety of patients, clients, students and customers) and the legitimate business interests of an organization.

Influenza Vaccination Decisions

Although COVID-19 is novel, the issues underlying mandatory vaccinations are not. Arbitrators in British Columbia and Ontario have dealt with mandatory “vaccination or mask” policies in the health care sector. The decisions pre-date COVID-19 but are useful tools to predict where courts and tribunals will land on the issue of compelling vaccination. However, each case and workplace is unique and caution must be exercised in applying the principles gleaned from these decisions. Policies in the health care sector are subject to the “precautionary principle”, the essence of which being that a policy that otherwise infringes on an individual’s rights may be more justifiable given the heightened risks in health care settings.

The British Columbia health authorities implemented an immunization or mask policy in 2013 for health care workers in situations where there is an influenza outbreak. The union grieved alleging that the policy was unreasonable, discriminatory and contrary to the Charter of Rights and Freedoms. Both parties submitted voluminous amounts of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. The arbitrator reviewed the expert evidence and concluded that the policy was reasonable in health care settings as it represented the least intrusive way to ensure patient safety. Notably, the policy did not compel vaccinations. It offered employees a choice: vaccinate or wear a mask. In addition, the collective agreement between the parties expressly permitted the employer to require vaccinations in certain circumstances.

Interestingly, a very similar case was heard by an Ontario arbitrator in 2015. In that decision, a hospital implemented a vaccinate or mask policy similar to the one implemented in the British Columbia decision. The nurses’s union grieved the policy. Again, both parties led a significant amount of expert evidence on the efficacy of vaccines and masks to prevent the spread of influenza. However, the arbitrator came to a completely different decision based on his interpretation of the expert evidence related to the use of masks in reducing the transmission of influenza to patients, and the policy was deemed unreasonable.

There are important distinctions between the influenza policies cited above and COVID-19 policies. First, influenza does not pose the same public safety risks as COVID-19. Second, the influenza decisions dealt with “vaccinate or mask” policies. Employees were offered a choice. In this way, the policies were much less invasive than a COVID-19 policy compelling vaccination.

The two arbitration decisions above also reflect how we anticipate courts and tribunals will deal with the issue of mandatory vaccination policies: courts and tribunals will likely reach different conclusions depending on the circumstances until the appellate courts or Supreme Court of Canada rule on the matter.

Frequently Asked Questions about Vaccines in the Workplace

Q:        Will the Federal or Provincial Governments mandate COVID-19 vaccinations?

A:         No. The Government of Canada and provinces have confirmed that vaccination is not mandatory. While some provinces have legislation permitting mandatory vaccinations generally, no jurisdiction in Canada has confirmed that they intend to enforce such legislation.

Q:        Can an employer compel its employees to get a vaccination?

A:         It is unlikely that employers will be permitted to compel vaccinations in most workplaces: such policies will be deemed an unnecessary intrusion into an individual’s privacy. Courts and tribunals will balance employee rights with workplace safety. Employers who implement a mandatory vaccination policy must be able to explain why occupational health and safety rules (such as physical distancing, working from home, and mask wearing) are not sufficient to protect worker safety and the employer’s legitimate business interests. Employers will also need to accommodate individuals who are unable to receive the vaccination for reasons related to human rights protections. Employers who implement mandatory vaccination policies should exercise caution as they may be liable if an employee develops an adverse reaction upon receiving the vaccine.

Mandatory vaccination policies will likely be more acceptable in industries with increased health or transmission risks, such as long-term care homes, camps and health care settings.

Q:        Will employees need to wear masks in the workplace after vaccination?

A:         This depends on whether occupational health and safety rules and local authorities require masks in the workplace. While (depending on the jurisdiction) masks are not mandatory in all workplaces, they are mandatory in many workplaces, particularly where it is not possible to maintain appropriate social distancing. Occupational health and safety regulations do not currently state that masks will not be required upon vaccination. At some point this will likely change; however, we do not have insight into when. While the efficacy of vaccination appears extremely high, it is still unknown whether vaccinated individuals can act as carriers and transmit the illness to others.

Q:        What can I do as an employer if an employee refuses to wear a mask post-vaccinations?

A:         Employees must follow occupational health & safety guidelines or risk discipline. Employees who are unable to wear a mask due to a protected ground under human rights legislation may require accommodation to the point of undue hardship but accommodation does not necessarily include allowing them to not wear a mask where a mask is required by law.

Q:        Can employees refuse to work with unvaccinated employees under occupational health & safety legislation?

A:         Very unlikely. Employees have the right to refuse unsafe work. However, worker compensation boards require employees who refuse unsafe work to identify how the unsafe work is contrary to occupational health and safety guidelines. Assuming the workplace is following proper occupational health & safety protocols, the workplace is “not unsafe”. In other words, if the workplace was “safe” prior to an employee being able to receive a vaccine, it is still “safe” for occupational health and safety purposes after an employee becomes eligible to receive a vaccine.

Q:        Are employees required to advise employers if they are vaccinated?

A:         If there is a valid vaccinate policy in place (e.g., health care workers), then yes. However, employers will want to take great strides to ensure the information is kept confidential and not disclosed. However, in many workplaces, requiring employees to advise of vaccination will constitute an unreasonable intrusion into an individual’s privacy.

Given the ever-changing landscape and myriad legal issues at play, employers are strongly encouraged to seek legal advice before implementing any vaccination policies.

This article is the first in a series about the intersection of family law and estate planning. In further articles the writer will set out several available planning options to help realize a client’s goals and intentions with respect to family law planning, wealth management and estate planning.

Who is my spouse anyway?

The answer to this question is not always clear and often requires an analysis of the relevant facts. The Courts generally employ a flexible approach and consider the diversity of relationships.

Before getting into the details of when two people are considered spouses, you may wonder about the consequences of inadvertently being in a marriage-like relationship.

Why does it matter?

From a family law perspective, it matters because subject to an agreement or order that provides otherwise, spouses are both entitled to family property and responsible for family debt regardless of their respective use or contribution (s. 56 of the FLA). In simple terms, this means that on separation there is a presumption that family property and family debt will be divided equally between spouses.

This may result in a division of property that is entirely contradictory to a person’s wishes.

From an estate planning perspective, it matters because the case law has established that a will-maker has a legal and moral obligation to provide for their spouse and for their children. If a will-maker dies leaving a will that does not, in the court’s opinion, make adequate provision for the proper maintenance and support of the will-maker’s spouse or children, the court may, in a proceeding by or on behalf of the spouse or children, order that the provision that it thinks adequate, just and equitable in the circumstances be made out of the will-makers’ estate for the spouse of children (s. 60 of the WESA). In short, a court may vary a will-maker’s will if adequate provision has not been made for the will-maker’s spouse and children.

The bottom line – it is important to know when you are considered to have a spouse and plan accordingly.

The Definition of a Spouse

In British Columbia, there are two statutes (for the purpose of this article) that should be considered when answering the question of whether someone has a “spouse” – the Family Law Act, SBC 2011, c 25 (the “FLA”) and the Wills Estates and Succession Act, SBC 2000, c 13 (the “WESA”). The Courts have also weighed in by creating a multi-faceted framework to determine whether two people are spouses.

The WESA defines a spouse as follows:

When a person is a spouse under this Act

2(1)        Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and

     (a)          they were married to each other, or

     (b)          they had lived in a marriage like relationship for at least 2 years.

Similarly, the FLA defines a spouse as follows:

Spouses and relationships between spouses

3(1)        A person is a spouse for the purposes of this Act if the person

     (a)          is married to another person, or

     (b)          has lived with another person in a marriage-like relationship, and

          (i)            has done so for a continuous period of at least 2 years, or

          (ii)           except in Part 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2)          A spouse includes a former spouse

(3)          A relationship between spouses begins on the earlier of the following

     (a)          the date on which they began to live together in a marriage like relationship;

     (b)          the date of their marriage.

As you can see from the above definitions, both statutes define a spouse as a person who has lived with another person a marriage-like relationship for at least two years.

What is a marriage-like relationship?

In defining a marriage like relationship, the Courts have consistently relied on a case called Molodowich v Penttinen, (1980), 17 RFL (2d) 376 (Ont. Dist Ct.) (“Molodowich”). In Molodowich, the Court identified several factors which were indicative of whether parties live in a marriage-like relationship. The factors include: (1) Shelter; (2) Sexual and Personal Behaviour; (3) Services; (4) Social; (5) Societal; (6) Support (economic); and (7) Children. Under each of these factors the Courts ask various questions. For example, with respect to shelter the courts may consider whether the parties lived under the same roof and if so, whether the parties shared a bedroom.

The above factors are not meant to be a checklist but are considered together by the court to give effect to the subjective intention of the parties and the objective behaviour of the parties. The Courts have found that the analysis is fact specific and must be made on a comprehensive basis, having regard to all of the evidence.

There have been several cases since Molodowich that further support the position that no one factor is determinative and the relationship must be considered broadly and holistically.

For example, in the 2018 case of Robledano and Jacinto, 2018 BCSC 152, one of the parties sought a declaration that she was the will-maker’s surviving spouse. The parties lived together on and off for 20 years. However, at the time of the will-makers death the parties were not sexually active and they were not consistently living in the same residence. The Court concluded that it was not fatal to the plaintiff’s claim that the parties did not consistently live together and justified the couple’s unusual living arrangements. The parties were found to be spouses under the definition in the WESA.

Take Away

In summary, spousal relationships are varied and structured differently. There is not one factor that sufficiently describes a marriage-like relationship so individuals must consider their circumstances and assess whether they could have a spouse.

If a person is seeking to protect their assets and have greater certainty from a family law or estate planning perspective we suggest that you speak to a lawyer regarding the most effective planning options.

The B.C. government is taking over the running of the provincial home owner grant from municipalities. The home owner grant reduces the amount of property tax you pay for your principal residence. The grant is available to homeowners who pay property taxes to a municipality, or to the province if they live in a rural area.

Effective 2021 all home owner grant applications must be submitted directly to the B.C. provincial government through a secure online application. Previously, home owners would submit their applications through their municipal offices.

As of February 16, home owners can apply for their current year or their retroactive home owner grants online at Home Owner Grant.

Home owners are reminded to keep their property assessment notice from BC Assessment or property tax notice from their municipality, as they will need their roll and jurisdiction number from their notice to apply for the grant.

If the home owner would prefer to apply over the phone, they can call the contact centre toll-free at 1 888 355 2700 to speak with an agent. The contact centre will begin taking applications over the phone as of February 16.

Municipalities will no longer accept any applications.


Patrick Bobyn is a solicitor practicing in the areas of business law and real estate. His real estate experience includes assisting clients with purchasing and selling real property, financing, and providing general advice as it relates to real estate law. Please do not hesitate to contact Patrick at bobyn@pushormitchell.com.

If you have been appointed Executor in a Will, there are a wide range of obligations if you accept the position of Executor.  You can decline to act as Executor by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for the representation grant. If you are Executor, there are a few big “No-No’s” you will want to avoid as you take on this onerous role, both involve tampering with the original Will itself.

  1. Do NOT write on the Will. Seems obvious? In acting for many Estates over the last decade, I have seen it happen. The Executor thinks they are being helpful, but it simply adds another layer of paperwork to the probate application, in the way of explanatory documentation, which can be expensive.
  2. Do NOT remove the staples! Guard the original Will diligently and DO NOT allow anyone else to remove the staples either (unfortunately this does happen when you hand it to others to possibly photocopy, such as the financial institution or insurance company). Again, if staples are removed, it just creates an extra burden on the Executor as they will need to provide an explanation / Affidavit / evidence to the Court as to why the staples were removed, which can be very difficult. The Court has to be satisfied that the Will has not been interfered with.

The safest and best place for the original Will is most often in the vault of the law firm who did the original Will, and we always recommend our client’s Wills are retained in our vault for safekeeping. We register the location of the original Will(s) at Vital Statistics, Wills Registry. The original Will is going to be required for the probate application to Court in any event, so the law firm is an excellent place for safekeeping it.


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

In my earlier article, Defamation, the Protection of Public Participation Act and Strategic Lawsuits Against Public Participation, I wrote about the Protection of Public Participation Act (the “PPPA”), a piece of legislation  aimed at combating strategy lawsuits against public participation (“SLAPPs”). And, in particular, about the stated intention of the PPPA to guard against the vulnerability in the legal system of SLAPPs being used to censor public opinion, intimidate people and silence critics.

Since my initial article, cases continue to be published which explore the practical application of the PPPA including Lyncaster v Metro Vancouver Kink Society, 2019 BCSC 2207 (CanLII) (“Lyncaster”).

In Lyncaster the Plaintiff was a member of the BDSM or kink community in the lower mainland. The Defendants were a society dedicated to educating and advocating for members of the kink community and several of its Directors. The complaint of the Plaintiff centered on a letter and statements made by the Defendants which variously stated that the Plaintiff invited a minor to his home to discuss BDSM, that he engaged in potentially predatory sexual behaviour and engaged in BDSM practices without consent.

The Defendants applied further to s. 4 of the PPPA seeking a dismissal of the Plaintiff’s claim on the basis that their comments were protected under the PPPA. As the Court framed things, there were two stages of analysis engaged as a result:

  1. the Defendants were required to satisfy the Court that their statements related to a matter of public interest. If the Defendants failed to do so, their application to dismiss the claim would be denied; and
  2. if the Defendant satisfied the first stage, the onus would shift to the Plaintiff to satisfy the Court that there are grounds to believe that his claim had substantial merit and there was no defence to same. This required the Plaintiff to also show that there is public interest in allowing the claim to continue by demonstrating that the harm potentially suffered by him if his claim did not proceed outweighed the public interest in promoting the value of freedom of expression.

Citing several other decisions, the Court in Lyncaster set out the following principles applying to the consideration of whether a matter is of public interest:

  1. A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest.
  2. The phrase “public interest” must be given a broad, although not unlimited, interpretation.
  3. The public interest is to be determined objectively, having regard to the context in which the expression was made and the entirety of the relevant communication.
  4. An expression can relate to a matter of public interest without engaging the interest of the entire community, or even a substantial part of the community. It is enough that some segment of the community would have a genuine interest in the subject matter of the expression.
  5. The characterization of the expression as a matter of public interest will usually be made by reference to the circumstances as they existed when the expression was made.
  6. Neither the merits of an expression, nor the motive of the author in making it, should be taken into account in determining whether an expression relates to a matter of public interest.
  7. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or to which considerable notoriety or controversy has attached.

Applying these principles, the Court found that the Defendants’ statements in Lyncaster concerned matters of public interest. As a result, the Court moved on to whether the Plaintiff satisfied the merits-based second stage of the analysis.

The Court summarized its task as follows: the Plaintiff was required to prove “…on a balance of probabilities, that there are reasonable grounds to believe that his defamation claims are legally tenable and supported by evidence, which could cause a reasonable trier of fact to conclude that his claims have a real chance of success.” The Court found that the words complained of met the test of being defamatory such that the claim had substantial merit. The defamatory words were published in a potentially public way meaning that they may have reached a very large audience. The defamatory words included thinly veiled allegations of sexual criminal misconduct. The conclusion being that the Plaintiff met the onus of proving a reasonable judge could conclude the claim for defamation should succeed.

Lastly, the Court engaged in a balancing of the public interesting in continuing the proceeding vs. protecting the Defendants’ statements. The Court held that the Plaintiff could establish evidence of harm suffered by the defamatory statements through incomplete evidence and common sense reading of the claim. On this relatively low threshold, the Court found that the Plaintiff had satisfied his obligation to demonstrate that he may have suffered some financial, physical, psychological and social harm. The Court also noted that the circumstances were not the type of circumstances the PPPA is aimed at, which are generally instances of a more powerful and financially backed entity using its power and resources to shock and deter critics through use of SLAPPs.

In summary, the Court found that the Plaintiff demonstrated that the harm he likely suffered, in all the circumstances, was sufficiently serious that the public interest in permitting him to continue his defamation claim outweighed the public interest in protecting the Defendants’ words.

Lyncaster is a helpful case for both plaintiffs and defendants to defamation proceedings to understand the application of the PPPA to such proceedings and the onus and burden or proof on both parties at various stages of analyzing how the PPPA might be engaged by a defamation proceeding. It is important to clarify that the PPPA does not provide absolute protection to any defendants for their potentially defamatory conduct, but needs to be applied carefully and while considering a number of factors.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including defamation, libel and slander concerns. 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.

One of the issues that can frequently come up, particularly when couples separate later on in life and when they have higher net worth assets is the question of “double dipping”.

The question is, if the spouses divide their property such that one spouse is bought out and paid compensation for their interest in an asset, how does that impact on income and any spousal support entitlement in the future?

The Supreme Court of Canada considered this question as it relates to pensions in Boston v.  Boston 2001 SCC 43.  In brief, the facts of this case were as follows:

  • It was a 36 year marriage;
  • The wife was a homemaker and primarily responsible for raising 7 children, while the husband pursued his career outside of the home and supported the family.
  • The parties agreed when they separated that the wife would receive an equalization payment for her interest in the husband’s pension and the husband would retain his pension for the future. The husband would then pay spousal support in an agreed upon amount over time indexed to inflation.
  • The husband sought to vary this agreement once he started collecting his pension based on the material change in circumstances as the wife had prudently invested the equalization payment that she received, which generated income for her. He claimed that it was double dipping for the wife to have been compensated for her share of the pension and then additionally receive spousal support based in part on the income that he received from her portion of the pension that had already been equalized in the division of property.

Ultimately the court did agree with the husband that the wife could not be permitted to “double dip” in this respect, and the spousal support paid to the wife was reduced to be based only on the husband’s income from the portion of the pension that had not been equalized.

The Supreme Court of Canada did make it clear that there would be some exceptions to this approach in that income from a pension that had been equalized could still be considered in the spousal support analysis if;

  • the payee had used their equalized assets prudently, in order to produce income; and
  • despite this there was still some economic hardship for the payee that was directly related to the breakdown of the relationship and the payor had the ability to pay.

In the case M.C.D. v. D.A.D. 2017 BCSC 1832, one spouse was paid an equalization payment for their interest in the business.  The spouse retaining the business argued that they should not pay spousal support based on the income generated from the business in the future, as the other spouse had already received compensation through the division of assets. The argument was that for the payee spouse to receive further benefit from the income generated by the business would constitute “double dipping”.

The Court rejected that argument in this instance on the basis that when a spouse retains marketable assets with an income yield as part of the equalization of family assets, they cannot eliminate such income from the determination of their capacity to pay as it relates to spousal support.

There is a clear distinction made between pensions which are considered to be liquidating assets and other types of assets, such as a functioning business, which are marketable assets and have an ongoing income yield.

One of the distinctions is that a successful business can produce income on an ongoing basis that can be spent without depleting the value of the business.

It is important when dealing with these types of assets and the very complex nature of spousal support, to consider how the division of property could impact on spousal support in the future.

 

A Representation Agreement is a legal planning document which can be used in British Columbia to provide your named representative the authority to make health care decisions for you if you are unable to do so because of mental or physical disability. Living Will language can also be incorporated into a Representation Agreement which provides the named representative the legal right to refuse specific medical treatment or any treatment at all.

A Representation Agreement gives you the opportunity to appoint a person of your choice to make health care decisions for you on an ongoing basis. You set out in what circumstances consent to treatment is to be given on your behalf by your representative and in what circumstances it is not to be given. As well, you can specify acceptable types of treatment.

The Representation Agreement enables you to choose who will make the decisions regarding your personal care and health matters when you cannot. As well, it provides you with the flexibility to choose more than one person so that two or more people have to act together to make the necessary decisions. You can also stipulate whether one representative can break a tie or has a veto; and choose an alternate representative in the event the person(s) you have chosen are unable or unwilling to act at the time.

A Representative who has authority over an adult’s personal care or health care is under strict obligations in regards to record keeping. He/she must keep the following records in relation to personal care or health care of the adult:

  • a copy of any record made by the adult of the adult’s instructions, wishes, beliefs/values;
  • if there are any changes in the adult’s residence, or needs with respect to personal or health care, the Representative must record the nature of the change and the decision made by the Representative in respect of it;
  • if the Representative made a major health care decision or admitted the adult to a care facility, the Representative must describe why the decision was made and the date of that decision;
  • if the Representative decides to restrict a person from associating with the adult, the Representative must explain why; and
  • if the adult was physically restrained, moved or managed, the Representative must describe who restrained the adult and why.

Proper planning is essential. Representation Agreements provide a great deal of flexibility when it comes to planning for incapacity in the delegation of decision-making authority for personal care and health matters.


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

In British Columbia, the Employment Standards Act, R.S.B.C., c. 113 (the “ESA”) provides significant employment rights for pregnant women. Under the ESA pregnant women have the right to take an unpaid leave of absence (up to 17 consecutive weeks) regardless of their length of employment. An employer must not because of a woman’s pregnancy terminate her employment or change a condition of her employment without her written consent. As soon as the maternity leave ends, the employer must place the employee in the position they held before taking maternity leave or in a comparable position. Therefore, employees who find changes have been implemented to their jobs or who find their position has been eliminated upon their return from maternity leave may make a complaint against an employer at the Employment Standards Branch.

An employee may also be able to file a complaint for discrimination with the BC Human Rights Tribunal if an employee is fired, laid off, denied opportunities or experiences other negative treatment because they are pregnant or taking maternity leave. Although the Human Rights Code, R.S.B.C., c. 210 (the “Code”) does not specifically enumerate pregnancy as a prohibited ground of discrimination, the Supreme Court of Canada’s decision in Brooks v. Canada Safeway Ltd., 1989 CanLII 96 made it clear that, “discrimination on the basis of pregnancy is a form of sex discrimination.” To succeed in a claim for discrimination an employee will need to establish:

  • The employee was pregnant;
  • The employee suffered some adverse treatment in the workplace; and
  • The employee’s pregnancy was a factor in the adverse treatment she received.

The employee’s pregnancy needs only to be one factor in the adverse treatment; it does not need to be the only, or event the primary factor, for an employee’s complaint for discrimination to be established.

If you are an employee experiencing any negative treatment from your employer because of your pregnancy you should consult with an employment lawyer to better understand your rights.

Under the Builders Lien Act (“BLA”) a statutory right is created to filed builders liens for work performed and/or materials supplied to an improvement. Understanding this seemingly simple concept requires applying the following terms defined in the BLA:

  • “work” means “…work, labour or services, skilled or unskilled, on an improvement…”;
  • “materials” means “…movable property that is delivered to the land on which the improvement is located and is intended to become part of the improvement, either directly or in a transformed state, or is consumed or used in the making of the improvement, including equipment rented without an operator…”; and
  • “improvement” is given a non-exhaustive definition of including “…anything made, constructed, erected, built, altered, repaired or added to, in, on or under land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under land.”

The recent decision of Shelly Morris Business Services Ltd. v Syncor Solutions Limited, 2020 BCSC 2038 (CanLII) is illustrative of some of the difficulties that can arise in the interpretation and application of the definitions of the BLA.

In Shelly Morris the defendant had contracted with the plaintiff to provide interior design and construction management services for two office buildings. Pre-construction work including site visits, design and tendering was performed before further work was put on hold due COVID-19. The defendant issued two invoices for its work, which were not paid in full. In July 2020, the plaintiff advised that it would not continue with the contracts. In August 2020 the defendant filed builders liens for its unpaid invoices against the project lands.

The decision in Shelly Morris came about as a result of the plaintiff seeking to have the builders liens on title cancelled. In rendering its decision, the Court first went through the definitions detailed above. It held, per earlier case law, that the object of the BLA was to “… prevent owners of the land getting the benefit of buildings erected and work done at their instance on their land without paying for them…”. The Court also found, based on previous case law, that “Because a builders lien is a creature of statute, the legislation must be interpreted strictly, insofar as it creates a preference in favour of one creditor over another…”

The Court noted that “improvement” was inclusive in that the examples of improvements given in the legalisation did not preclude additional meanings to the word. The Court also noted previous case law that had held that “improvement” means an improvement to the property itself; work and construction must commence. Similarly, “improvement” does not include intended construction.

The Court ultimately determined that, since the improvement didn’t commence, the defendant’s pre-construction efforts and preparation did not constitute an improvement and, therefore, were not lienable. The Court did observe that the defendant’s work not being lienable did not mean that it was not recoverable in contract.

Shelley Morris is illustrative of how the strict requirements of the BLA can be difficult to understand and difficult to follow. While the defendant’s work was certainly intended to become part of an improvement, it had not become part of an improvement yet and was not lienable. As may be discerned from the decision, had a shovel hit the ground of a nail been hammered that required planning, such planning would be lienable (although there would still be a question of how much planning/pre-construction related to an actual improvement).

For related cases about some of the strict requirements of the BLA, please also consider the following articles:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including real property disputes and builders’ lien concerns. 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 New Year is a great time to review your Will. If you have an existing Will, that’s a great start. However, as your life changes, so will your Estate Planning needs.  Here are a few of the triggers that should get you thinking about re-doing your Will:

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

Those are just some of the reasons to review your Will. Reviewing and updating your Will gives you peace of mind that you have cared for your loved ones in the very best way you can. 2020 has been quite the year of change, making all of us realize how fragile life is, and how very precious our loved ones are to us. Don’t leave your Estate Planning until it is too late.


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

As discussed in my previous article, COVID-19, Builders Liens and Limitation Periods, since March 26, 2020, limitation periods in BC were suspended. This suspension was listed as of April 15, 2020 for builders lien issues.

By way of simple introduction, a limitation period is generally two years and requires that a party commence a lawsuit within two years of knowing or having the information to know they have a cause of action, or basis for a lawsuit, or forever lose the right to commence litigation. When a limitation period begins to run, how a limitation period may be extended and various restrictions and extensions of the basic two-year limitation period are complex subjects that need to be considered in each potential action but are beyond the scope of this article.

In a new provincial order made on December 21, 2020, the provincial government announced that the suspension of limitation periods is ending as of March 25, 2021.The provincial government released an explanatory document explaining the technicalities of this important legal development.

The suspension of limitation periods was formerly tied to the state of emergency, with the intention being to lift the suspension when the state of emergency was lifted. With the recent announcement, the limitation periods suspension will be lifted on March 25, 2021 regardless of whether the state of emergency in BC lifts before or after that date.

The suspension of the limitation period for one year makes calculating the time remaining in a limitation period simple: just add one year.

By way of example:

  • a limitation period that expired before the suspension remains expired. By example:
    • payment under a contract was not made when due on February 26, 2018;
    • the limitation period was on February 26, 2020;
    • the limitation period expired on February 26, 2020 if no action was commenced;
  • a limitation period that would have expired during the limitation period suspension has the same time remaining after the suspension as it did before, resulting in one year being added to the limitation period. By example:
    • a person was in a motor vehicle accident with an identified at-fault driver on April 26, 2018;
    • the victim’s limitation period would have expired on April 26, 2020 but for the suspension;
    • the victim had one month left in their limitation period before the suspension period and will have one month left afterwards;
    • the victim’s limitation period expires on April 26, 2021;
  • a limitation period that would have expired after the limitation period suspension also has the same time remaining after the suspension as it did before, resulting in one year being added to the limitation period. By example:
    • a new home owner discovered on June 26, 2019 that the vendors misrepresented that the house they sold had no water damage when they knew that it did have water damage;
    • the new home owner’s limitation period would have expired on June 26, 2021 but for the suspension of the limitation period;
    • the new home owner’s limitation period expires on June 26, 2022;
  • a limitation period began to run during the suspension starts to run when the suspension is lifted. By example:
    • a supplier fails to deliver product when required on September 26, 2020;
    • the limitation period would have expired on September 26, 2022 but for the suspension;
    • the limitation period starts to run when the suspension is lifted on March 25, 2021; and
    • the limitation period expires on March 25, 2023.

This new announcement provides certainty for calculating the expiration of limitation periods. Previously, it was unknown how and when the suspension would be lifted. It is critical that counsel and clients who may have previously relied on the suspension of the limitation period to “sit” on claims to appreciate and calculate when action must be taken to preserve a limitation period. It is also crucial for parties to understand that, for the next couple of years, claims may be commenced later than expected because of the extended limitation periods.

More complicated limitation issues such as acknowledgment of claims that might renew the limitation period and how those interact with the newest announcement should be carefully considered with the wording of the announcement but are beyond the scope of this article.

It should be noted that the discretionary power provided to entities which have statutory power to waive, suspend or extend a limitation period will continue until 90-days after the state of emergency is lifted, although the limits of that discretion are beyond the scope of this article.

If you are concerned about how any limitation period concerns might affect your legal interests, we are happy to assist.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including real property disputes and builders’ lien concerns. 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.

As discussed in my previous articles, Builders Liens: The Consequences of Less than Strict Compliance and Builders Liens: Strict Compliance or Lose Your Lien, the Builders Lien Act (“BLA”) creates extraordinary remedies and, as such, requires extraordinary attention be paid to complying with its requirements. Issues about the strict procedural requirements of BLA were at the center of the recent decision of Toska Woodworking Inc. v Balazadeh-Nayeri, 2020 BCSC 1378 (CanLII).

In Toska the plaintiff was a contractor was retained to supply and install custom cabinetry and millwork in the defendants’ home. The parties fell into dispute and a builders’ lien for a little over $92,000 was filed against the homeowners’ property on February 22, 2020. The parties continued to try to resolve their differences unsuccessfully. Eventually, the homeowners served a 21-day notice on the contractor.

Under s. 33(1) of the BLA, a party with a builders’ lien is required to commence an action in the Supreme Court and file a certificate of pending litigation (“CPL”) within one year from the date of the filing of a builders’ lien to maintain the right to claim the lien. This process is known as “perfecting” a lien. Under s. 33(2), a property owner or another lien claimant can serve a 21-day notice shortening the time in which a lien needs to be perfected to 21 days after the effective service date of such a notice. Failing to perfect a lien within the applicable time limit extinguishes the right to maintain a builders’ lien although the underlying debt claim still exists without the additional relief and benefits that flow from a lien.

In Toska after the 21-day notice was served the contractor filed a Supreme Court action in time but did not file a CPL in time due to confusion created with the Land Title Office and COVID-19 protocols put in place. As part of an apparent effort to protect its lien claim, the contractor filed a second lien in July 2020.

In analyzing its analysis, the court noted that there was not good evidence before it about the underlying project costs and details. The issuance of the occupancy permit did not determine whether the first lien was filed within the time requirements of the BLA and the parties continued to negotiate about the project through to April, 2020. In the circumstances, the Court found that the first lien was filed in time.

In analyzing the failure of the contractor to perfect its claims per the 21-day notice, the Court held that the first lien remained valid because the service address for the 21-day notice did not match address for service in the first lien. As such, the first lien would have been struck for failing to file a CPL in time, but the 21-day notice was defective and did not trigger the requirement to perfect the builders’ lien early. Since there was no effective 21-day notice and the one-year ordinary perfection period had not passed, the first lien remained valid.

On the second lien, the court found that, whether nor not the period in which a valid builders’ lien could be filed had expired, the filing of a second lien to attempt to recover from a failure to perfect another lien was not tolerable. The filing of a second lien was found to be an abuse of process and was ordered cancelled along with any CPL filed further to same.

The Toska Woodworking Inc. v Balazadeh-Nayeri is an example of how easy it is for both claimants and defendants in builders’ lien disputes to make minor errors which can have significant impacts on the rights and remedies available to them. Had the owners in the case served a proper 21-day notice, they could have cleared their title from any builders’ lien claim and CPL. Similarly, the builder exposed itself to potentially substantial cost and other consequences for trying to salvage its failure to perfect its lien as required by what it thought was a 21-day notice by filing a second lien. Timely legal advice respecting builders lien concerns is always a prudent course of action.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including real property disputes and builders’ lien concerns. 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.

On December 1, 2020 the TSX Venture Exchange (the “Exchange”) announced long awaited changes to its Capital Pool Company (“CPC”) program. The revised program is intended to increase the flexibility of the CPC program, reduce regulatory burdens and improve the economics for CPC participants.

Below is a summary of the key changes to the program.  For a comprehensive list of all changes please see this link.

  1. Increase in Capital Raising Thresholds.
  2. Capital limits have been increased from $500,000 to $1,000,000 in respect of seed capital raised below the IPO price and from $5,000,000 to $10,000,000 in aggregate funding.  The increased limits should give CPCs more flexibility when pursuing targets.

  3. Removal of the 24 Month Timeframe for Completing a Qualifying Transaction.
  4. Under existing CPC program, issuers that fail to complete a Qualifying Transaction within 24 months are downgraded to the NEX board of the Exchange.  This 24 month window has been eliminated under the new CPC policy.

  5. Easing of residency restrictions for Directors and Officers.
  6. The new CPC policy eases residency restrictions on directors and officers, allowing for the inclusion of international directors, as long as the majority of the management team is from Canada or the United States.

  7. Reduced Escrow Restrictions on Founders.
  8. The new CPC policy has reduced the escrow restrictions on founders and seed capital investors from a 36 month restriction to an 18 month restriction.

  9. Reduced Minimum Distribution Requirements

The new CPC policy provides for reduced minimum requirements for share distributions. Specifically, CPCs will now only need a public float of at least 500,000 shares (compared to 1,000,000 previously) and a minimum of 150 shareholders (compared to 200 previously).

Transitional Provisions

The revised CPC Program will take effect on January 1, 2021, however existing CPCs can take advantage of certain provisions of the program depending on where they are at in their lifecycle and subject to complying with certain transitional requirements.

If you are interested in learning more about Capital Pool Companies, taking your existing company public, or if you have other questions concerning your company’s compliance with securities laws, please contact Keith Inman at inman@pushormitchell.com or by phone at 250-869-1195 or Brendan Bachewich at bachewich@pushormitchell.com or by phone at 250-869-1122


Keith Inman is a securities and M&A lawyer with broad experience in capital markets. Keith regularly advises individuals and companies with respect to capital raises, securities reporting and compliance matters, purchases and sales of businesses and other corporate/commercial matters. Keith has advised numerous emerging and growth companies through the go-public process (including IPOs and RTOs) and has been a founder and director of multiple Capital Pool Companies.

An Executor/Trustee has a wide range of obligations and responsibilities to fulfill. When doing your Estate Planning and choosing an Executor/Trustee, you have a number of important considerations to keep in mind. In a nutshell, the choices available are: Corporate Trustee (like a Bank or Trust Company), a family member/friend (or more than one, named as Co-Trustees), or another willing professional you know, such as your Accountant or Lawyer. (A Bank, Trust Company, Accountant and Lawyer are referred to hereafter simply as “Professional Trustee”.)

The first thing you should do, if you are in the process of making such important decisions, is to contact an estate planning lawyer to discuss the various issues involved. A good estate planning lawyer is worth more than the documents they create. Your answers to the questions asked by your estate planning lawyer, and your decision making process triggered by those questions, documented by a careful lawyer, will make all the difference in the world to your actual written plan. The planning behind the documents is what gets you the results you desire.

The entity you choose to fill this role will have a big job to do. If it is a Professional Trustee, you will meet with them to go through your Estate and sign Compensation Agreements. If you are choosing a family member/friend, it is a very good idea to make them aware that you have chosen them and ensure that they are willing, comfortable and able to fill that role.

Whether you are choosing an inexperienced family member/friend or a Professional Trustee, that person will be working with your beneficiaries for a significant amount of time (sometimes well over a year) as they administer your Estate and deal with your assets. It is very important that you consider the myriad of issues when deciding who your Executor/Trustee will be, a few of which are as follows:

  • Is the job of looking after your Estate going to be very hard on a loved one who has just lost YOU? This can be overwhelming to deal with, coupled with grieving, even though they may feel duty bound when you ask them to take on that role;
  • What about compensation? Compensating a loved one to do this job is often frowned upon by other beneficiaries who are not privy to what the role involves. They simply sit back and wait for their inheritance to come through. Considering the level of responsibility that an Executor/Trustee takes on, shouldn’t your loved one be compensated? It is highly likely that the role of Executor/Trustee will take away from the usual way your loved one makes a living. I have seen family members take on this role, only to fight with their siblings over the details, grow weary of trying to maintain family harmony, grow tired of trying to sustain their own family life/job while serving your Estate, yet deny themselves compensation. They eventually grow irritated, bitter and resentful over the thankless hours they have spent accounting and documenting and gathering your assets, that they end up losing their sibling (or other) relationships. Family harmony is extremely difficult to maintain without an objective perspective;
  • If you don’t want to burden family members/friends with this job, or you simply don’t feel that you have anyone appropriate to appoint, and your Estate is of a certain value to warrant hiring a Professional Trustee, then a Professional Trustee is a very good option for you. Their experience and objectiveness is of huge value to Estates. Each Professional Trustee will have a fee structure that you should carefully review. Their fees may be charged monthly, quarterly or annually based upon the value and type of the assets they are managing in a Trust or Estate. Some Professional Trustees also charge hourly fees or flat fees for certain activities or situations. It is very important to closely review the Professional Trustee’s fee schedule so that you understand how and what fees will be charged to your Estate. If the assets in your Estate do not warrant the level of fees to be charged, then obviously this is not a good option for you.

All of the above should be discussed with your estate planning lawyer as you embark on the estate planning process. Their guidance on the above will be invaluable to your Estate, and your beneficiaries, who will ultimately be the ones left behind and thus dealing with your choice of Executor/Trustee.


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

Gathering evidence immediately after a car crash is often crucial to the success of your personal injury claim.

One increasingly important piece of evidence is a car’s event data recorder (EDR) or “black box”.

This device comes standard on most passenger vehicles manufactured in the past decade.

It records and stores information about airbag deployment, speed, brakes and even seatbelt use in the moments directly preceding a crash.

This information can help prove fault in car accident cases, ensuring you get the compensation you deserve.

This information is particularly useful in the moments leading up to the collision, as very often there is no physical evidence that can be used to establish what the driver was doing.

For example, a detailed accident reconstruction by an accident reconstruction engineer can often determine the speed of the vehicle with good precision at impact, however it is often not known whether that vehicle was accelerating, coasting, or braking in the seconds leading up to the crash.

With “black box” data, a history of up to twenty-five seconds can establish these parameters.

WHAT INFORMATION DOES A CAR’S BLACK BOX RECORD?

A car’s black box does not record information about your driving habits, identity or location. Instead, it stores data about the vehicle’s function in the seconds before and during a crash.

EDRs may differ depending on the make and model of your car, since there currently is no industry standards and regulations.

However, most record data on a continuous loop, rewriting approximately 5 to 10 seconds of information until a crash. Then, the data leading up to that collision is stored for a certain period of time.

An EDR can record data such as:

  • The forward and lateral crash force.
  • The crash event duration.
  • vehicle speed for many seconds prior to impact
  • Accelerator position.
  • Engine rpm.
  • Brake application and antilock brake activation.
  • Steering wheel angle.
  • Stability control engagement.
  • Vehicle roll angle, in case of a rollover.
  • Number of times the vehicle has been started.
  • Driver and front-passenger safety belt engagement, and pretensioner or force limiter engagement.
  • Air bag deployment, speed, and faults for all air bags.
  • Front seat positions.
  • Occupant size.
  • Number of crashes (one or more impacts during the final crash event).

Usually the download of the CDR data is relatively straight forward, however there are some circumstances where evidence spoliation can occur if the “black box” is improperly accessed.

HOW CAN EDR DATA HELP MY CASE?

Where fault of an accident is in issue, it is important you retain a lawyer who has experience obtaining the black box data AS SOON AS POSSIBLE.

One of the biggest challenges of any car accident claim is proving what actually happened. Most often, the at-fault driver’s insurance company will question your version of events and will usually try to blame you instead.

Black box data can help prove what circumstances led to the car crash. This information helps eliminate guesswork, and is a powerful tool to help refute false claims by the at-fault driver or their insurance company, and help prove your case.

However black box information must be retrieved quickly after a crash.

It is crucially important to get access to the black box before the car is salvaged or destroyed, or the data is written over.

Most EDRs store crash data for 200 ignition cycles, which typically means only six to eight weeks after an accident.

If a vehicle is repaired after a crash, the EDR may be replaced or lost.

Therefore, the sooner you contact an accident lawyer, the better the chances that EDR information can help your claim.

The lawyer will immediately retain an engineer to properly download and analyze the data.

Usually the black box from the other vehicle is also required. The lawyer will have to obtain access to the other vehicle as soon as possible. This will require either an agreement from the other drivers insurance company, or a court order.

We consider the crash data a “supplement” to a proper accident reconstruction. Typically, the downloaded information corroborates previous findings with respect to impact speed, Delta-V/Severity, seatbelt use and pre-crash behavior, but in many cases it is conclusive and makes your case.

EXAMPLES WHERE BLACK BOX HAD BEEN ESSENTIAL IN OUR CASES

I have had to extract black box evidence in over 30 cases.

In many cases the evidence was crucial in proving our case against the other driver.

Here are two examples where we would have not been successful without the black box evidence.

Case 1

In this case, our client was a passenger in a vehicle that lost control and slid into the oncoming lane.

The oncoming car collided with the vehicle and our client sustained serious injuries, including a very severe brain injury.

The insurance limits in the vehicle he was a passenger in was insufficient to cover his substantial claim for income loss and care costs.

We had a good case against the driver of the vehicle he was a passenger in, but to get full compensation for his severe injuries we had to somehow prove the oncoming driver was also partially at fault.

The driver in the oncoming car said she was driving the speed limit, and her insurer denied any fault entirely.

We immediately retained an engineer to do an accident reconstruction, including retaining the black box in her vehicle to determine her actual speed.

The black box showed conclusively she was in fact speeding about 15 k over the speed limit.

Our engineer was able to show that had she been travelling the speed limit when the car our client was a passenger in came into her lane, she could have avoided the collision completely by braking in time, and our client would not have received any injures whatsoever.

At mediation her insurer agreed to pay a significant portion of our clients damage claim.

Case 2

Our young preteen client was riding a bicycle and swerved into traffic.

The car that was coming up behind her struck her and she sustained a serious brain injury.

There were no independent witnesses.

The driver of the car insisted he was going the  speed limit, and could not avoid colliding with our client on her bike.

His insurer denied he was at all at fault accordingly.

We immediately retained an accident reconstruction engineer who has extensive experience with black boxes, and had the black box data examined.

It showed conclusively that the driver was speeding 20 k over the speed limit.

Our engineer convincingly proved that the driver could have avoided the collision completely had he been going the  speed limit.

The case was settled at mediation, with the drivers insurer agreeing he was at fault for a significant portion of our clients claim, sharing responsibility for the accident with our client.

In summary, if you are in an accident where fault is disputed, make sure you immediately consult a lawyer familiar with EDR’s to determine if an examination of the black box data may assist your case, and obtain the EDR data before it is destroyed.

Sometimes it is the only tool to prove the other driver was at fault.


Paul’s practice is limited to serious personal injury claims.

In his personal injury practice, he acts only on behalf of the injured, with an emphasis on brain injury claims, spinal injuries, death claims, and medical malpractice claims.

He has considerable experience in obtaining and using black box and EDR information to prove fault in car crash claims .

Paul may be reached at mitchell@pushormitchell.com, or his direct line at 250-869-1115

Corporate interest holders in British Columbia are now likely familiar with the recently introduced disclosure requirements implemented by the province for all BC companies. A similar disclosure will now be required as it relates to real property in British Columbia This is the result of new legislation known as the Land Owner Transparency Act, SBC 2019, c 23 and supplementing Land Owner Transparency Regulation (collectively, “LOTA”) which will come into force on November 30, 2020.

What is LOTA?

LOTA is legislation that is designed to enhance disclosure and transparency of ownership in real estate in British Columbia. The key essence of LOTA is the creation of the Land Owner Transparency Registry which will be administered by the Land Title and Survey Authority of British Columbia (“LTSA”).

What is the Land Owner Transparency Registry?

The Land Owner Transparency Registry will result in mandatory reporting about indirect ownership of real property. The information that is obtained via the reporting requirements will be publicly accessible. Beginning on November 30, 2020, any person who applies to the LTSA to register an “interest in land” (in practical terms, whenever a land transfer occurs) will be required to file a transparency declaration as part of their registration.

What is a Transparency Declaration?

A transparency declaration will contain information about whether a transferee in a real estate transaction is a “reporting body” as defined in LOTA. There are three types of reporting bodies:

  1. relevant Corporations, being all corporations and limited liability corporations;
  2. relevant Trusts, being all forms of trusts; and
  3. relevant Partnerships, being all types of partnerships including general partnerships, limited partnerships, limited liability partnerships, professional partnerships, foreign partnerships, prescribed partnerships, or a legal relationship, created in another jurisdiction.

LOTA does contain some exclusions on the above categories, but for the most part these are all encompassing definitions.

If a transferee is deemed to be a “reporting body” they must further disclose identifying information about themselves and all indirect owners of the interest in land. LOTA considers these entities to be “interest holders”. Interest holders may be one of the following:

  1. Beneficial Owners, defined as an individual who:
    • is a beneficial interest in land other than an interest that is contingent on the death of another individual;
    • has the power to revoke the relevant trust and receive the interest in land; or
    • is a corporate interest holder in respect of a relevant corporation and has a beneficial interest in land or the power to revoke the relevant trust and receive the interest in land.
  2. Corporate Interest Holders, defined as an individual who:
    • has a beneficial or registered interest in a significant amount of shares of a corporation (defined as 10% or more of outstanding shares or 10% or more of the voting rights in a corporation); or
    • has the rights or ability to directly or indirectly appoint the majority of the board of directors in a corporation or has the ability to significantly control an individual with the rights or ability to appoint or remove a majority of directors; or
    • through jointly held interests, rights or abilities, meets the criteria set out in (a) or (b).
  3. Partnership Interest Holders, defined as an individual who:
    • is a partner in a relevant partnership; or
    • is a corporate interest holder in a relevant corporation which is a partner in a relevant partnership.

When is a Transparency Declaration Required?

As of November 30, 2020, there will be three situations where a transparency declaration will need to be filed:

  1. the registration of a new interest in land with the LTSA (a land transfer);
  2. pre-existing interests in land; and
  3. changes in interest holdings in land.

When registering a land transfer, the transferee must file a transparency declaration to disclose whether or not the transferee is a reporting body, and if so, which type of reporting body.  If the transferee is considered a reporting body the transparency declaration must contain information on the interest holders.

If, immediately before November 30, 2020, a reporting body is a registered owner of an interest in land, that owner must file a Transparency Report by November 30, 2021 (one year after LOTA comes into force). If any owner of a pre-existing registered interest in land is not a reporting body they will not need to file a transparency declaration.

What information must be disclosed?

Reporting bodies and interest holders will need to disclose the following information:

Interest Holders must disclose primary identification information (full name, citizenship status, location of principal residence, etc.), last known address, SIN number, tax number (if applicable), residency status for tax purposes, and a description of how they are an interest holder.

Relevant Corporations must disclose the information described above for all of its interest holders. In addition, the relevant corporation’s business number, if any, within the meaning of the Income Tax Act (Canada), the incorporation, continuation, amalgamation or other identifying numbers given to the corporation by the jurisdiction in which they were incorporated, and the parcel identifier assigned to the land to which the transparency report relates.

Relevant Trusts must disclose the information required above (for interest holders) for each of the settlors of the relevant trust as well as the parcel identifier assigned to the land to which the report relates. In addition, the reference number of any relevant trust instruments must be disclosed.

Relevant Partnerships must disclose the partnership’s primary identification information; business number under the Income Tax Act (Canada), and the identifying number, if any, issued to the partnership by the jurisdiction in which it was formed.

What information will be available on the public registry?

The Land Owner Transparency Registry will be maintained by the LTSA and will disclose primary identification information in respect of interest holders and reporting bodies. The implementation of certain provisions of LOTA that deal primarily with inspection rights and searches of the Land Owner Transparency Registry do not come into force until April 30, 2021. As a result, it is likely that the Land Owner Transparency Registry will not be available for inspection until such time.

What are the penalties for non-compliance?

If a party improperly submits or fails to submit the appropriate documents, the LTSA has the authority to refuse registration of an interest in land. In addition, administrative penalties can also be enforced.

Moving Forward

The scope of the reporting obligations under LOTA is widely encompassing. LOTA will have ramifications for all property owners (both residential and commercial) who use companies, trusts and partnerships for holding interests in land. Given the complexity and novelty of LOTA, along with the rigorous disclosure requirements, it will be crucial for purchasers, land owners, and developers to obtain legal advice and understand the requirements of LOTA moving forward.


This article is provided as information only and should not be construed as legal advice. Always consult with a lawyer to provide you with advice specific to your own situation. For more information, please contact Patrick Bobyn by calling (250) 869-1286 or by email at bobyn@pushormitchell.com.

Patrick Bobyn is a solicitor practicing in the areas of business law, and real estate. His real estate practice involves assisting both residential and commercial clients with purchases, sales, financing and leasing.

The McDermott case McDermott v. McDermott, 2013 BCSC 534 (CanLII) provides an example where the court in a family law case will order production of communications between lawyer and client despite a claim of solicitor-client privilege.

Solicitor-client privilege is a privilege the court recognizes that communications between solicitor and client for legal purposes, and intended to be confidential, cannot be forced to be disclosed.  The privilege belongs to the client, and allows the client to safely disclose all the facts, no matter how bad, to their lawyer so the lawyer can provide legal advice.

Lawyers cannot provide complete legal advice unless they have complete facts.  If the client fears that they tell their lawyer is not confidential and can be ordered disclosed then the client will likely be reluctant to tell the lawyer any ‘bad’ facts although required by the lawyer to give legal advice.  To help ensure people get good legal advice, communications between solicitor and client are generally confidential because of the privilege.

However, the privilege is not absolute.  There are exceptions to the privilege.  For example, communications that are to facilitate the commission of a crime or fraud are not protected by solicitor-client privilege.  This exception to solicitor-client privilege is known as the “future crimes exception”.  Privilege never attaches to these types of communications.

The “future crimes exception” is broad and includes wrongful acts that are not necessarily criminal.  It applies to negligence and other unlawful acts including abuse of the court process.  Therefore, communications between a lawyer and client who deliberately uses a lawyer to facilitate any unlawful conduct does not attract solicitor-client privilege, and can be ordered disclosed.

To make out the “future crimes exception” three elements must be met:

  1. The communication must refer to future conduct;
  • the client must be seeking to do something which the client knows or should know is unlawful; and
  • the wrongful conduct being contemplated must be clearly wrong.

It does not matter whether the lawyer is aware of the unlawful intent of the client or not.  The key consideration is the intention and state of mind of the client at the time the advice was obtained.

The burden of proof of establishing solicitor-privilege is on the person who claims the privilege.  Once privilege is established then it is on the party seeking to overcome the privilege to establish that the communications should be disclosed.

Therefore, in order to make a “future crimes exception” claim, the applicant must first make out a prima facie case.  There must be some clear and convincing evidence to give ‘colour’ to the allegation that the client had communicated with their lawyer with the intention of committing an unlawful act, and that the client knew or ought to have known that the intended conduct was unlawful.  Once a prima facie case is established, the court then reviews the documents in question to determine whether the exception or privilege applies.

In McDermott, the parents lived in different provinces and were involved in an ongoing guardianship and access dispute lasting years.  Parental alienation was suspected.  The father inadvertently discovered emails between the mother and her sister about a plan developed by the mother with her lawyer to delay trial.  The plan was to purposely lose an interim application and then appeal the ruling although knowing the appeal would fail.  The father requested access to all other emails and documents regarding the mother’s plan.  The mother claimed solicitor-client privilege.

In this case the court found the mother was trying to abuse the court process by deceiving the court to delay justice.  Abuse of court process is an unlawful act, and the court decided the “future crimes exception” to solicitor-client privilege applied.  Further, the court found the father had presented more than just a prima facie case, and deemed it unnecessary to review the questionable emails before making its decision.  The court ordered the mother to produce all documents including emails, notes, and memoranda relating to the mother’s plan.

The future crimes exception is only one exception to solicitor client privilege.  Other exceptions include disclosing information to prevent imminent harm to a person, or when innocence is at stake, for example, to help free the wrongfully convicted.  Further, because the privilege belongs to the client, the client can waive the privilege either on purpose or inadvertently.  For the privilege to apply there must be in expectation of privacy and confidentiality.  Disclosing to other people what your lawyer has advised can be construed as a waiver of solicitor-client privilege.

The Family Law team at Pushor Mitchell understands solicitor client privilege, and the importance of confidentiality when working with their clients.

Over the past few months there has been a substantial increase in real estate activity. In line with the rise in development of new homes in the surrounding area, many real estate transactions consist of purchasers buying vacant lots with the intention of building a new home after closing. While the purchase and sale contract will contemplate the mechanism of transferring the subject property, it is the construction contract which will contemplate the actual building of the new home. For both builders and new landowners alike, there are benefits to having a well drafted and clear construction contract in place to contemplate the entire timeline of the build. Much like how every real estate transaction is unique, so to is the actual construction of a new home. Below is a summary of a few key considerations that every construction contract should address:

Builder’s Lien Holdback

The Builders Lien Act allows contractors, sub-contractors, workers and suppliers to file a lien against the title to a property where they supply work or materials. The lien is intended to provide a level of security for the claimant to ensure they get paid for services rendered. Liens can be filed at any time up to 45 days after the work has been completed. Landowners can protect themselves from the potential of a lien by holding back a portion of any payment made under a construction contract until the lien period has expired. The holdback can be used to pay out the lien claimant or paid into court to discharge the lien if it is registered. There is an entire payment and holdback mechanism under the Builders Lien Act which should be properly contemplated in the construction contract. Builders and landowners need to be aware that parties cannot contract out of the provisions of the Builder’s Lien Act. Therefore, a construction contract should properly refer to and address these provisions.

Deficiency List and Walkthrough

A deficiency walk-through is a chance for a landowner to walk through the newly built home (with the builder) to ensure that everything has been completed in accordance with the terms of the construction contract. In addition, a deficiency walk-through provides an opportunity to identify anything that has been damaged or still requires repair. Any deficiencies which are agreed upon can then be addressed. A deficiency walk-through is beneficial for the builder as well, as it can result in documented evidence that the landowner has accepted the quality of the newly built home, subject to any deficiencies that are discovered during the walk-through.

Scheduling and Timelines

The construction contract should state a start and/or completion date, or at the very least provide an estimation. There are always exceptions to providing clear timelines, such as certain conditions which have to be met (by either the builder or landowner) or the approval of third parties such as municipalities and regional districts. However, these considerations should be clearly stated in the construction contract. A construction contract should also specify what happens if timelines are missed. For example, does the landowner have the ability to terminate the contract for a missed deadline, or seek damages for any costs incurred as a result of the delay? A builder will want protection in this regard, especially for things that are out of their control (such as bad weather and labour and material shortages). It is easier to deal with delays when they have been contemplated in the contract.

Costs

There is no easier way for disputes to arise then for ambiguity or disagreement on costs. Construction contracts are usually “fixed” or “cost plus”. Under a fixed contract, the costs for construction are clearly set and are all encompassing. A builder under a fixed contract will want to ensure that they have fully considered the costs of construction so that they do not go over the budget during the build (and thus incur these costs directly). For a cost-plus contract, there is usually a set cost payable by the landowner, plus additional costs for such things as installation and hookup of utilities, connection of appliances, the cost of the new home warranty and fees for permits. A landowner will want to know exactly what additional costs they are responsible for. Tied into costs is the concept of change orders, where a landowner may want to make changes to the home during construction. How are these changed approved between the parties (usually in the form of an amendment to the contract), and how do the parties address any increase in costs because of a change order (builders will typically want these costs paid upon approval of the change order)?

Dispute Resolution

While ideally the construction of the new home goes smoothly, disputes can arise. A dispute resolution mechanism (such as mediation or arbitration) can direct parties towards a resolution without having to incur additional legal and court fees.

The above considerations address a few of the key terms which should be included in any construction contract. Before, signing any construction contract, both parties should ensure the contract has been approved by their lawyer. A well-drafted construction contract will go a long way in ensuring the building of the home goes according to plan.


This article is provided as information only and should not be construed as legal advice. Always consult with a lawyer to provide you with advice specific to your own situation. For more information, please contact Patrick Bobyn by calling (250) 869-1286 or by email at bobyn@pushormitchell.com.

Patrick Bobyn is a solicitor practicing in the areas of business law, real estate, estate planning and estate administration. His real estate experience includes assisting both builders and owners with reviewing and revising construction contracts, as well as assisting clients with purchasing and selling real property, financing, and providing general advice as it relates to real estate law.

When a strata issues fines or fees against owners, it often seeks legal assistance in doing so. The recent decision of 625536 B.C. Ltd. v The Owners, Strata Plan LMS4385, 2020 BCSC 633 (CanLII) reviews when a strata is or is not entitled to recover part or all of those legal fees.

In the case, three owners in a commercial strata had all received letters demanding payment of strata fees which were in arrears. The strata had obtained legal advice and in its original demands demanded the strata fees which were in arrears plus legal fees. The legal fees were not specified.

One of the owners provided a cheque for the arrears, but no amount for legal fees. The strata rejected the cheque and clarified that it claimed $800 in legal fees. It later changed this mount to $620. The two amounts claimed came without explanation to the owner.

The questions before the court was whether the strata could unilaterally charge an owner for legal expenses in the circumstances, being outside of any legal proceedings, and whether there was any right to claim for legal expenses when the strata made a demand for payment of arrears and payment was offered without the need to lien the owner or commence any legal action.

The Court noted The Owners Strata Plan KAS2428 v. Baettig2017 BCCA 377 in which it was held that s. 118 of the Strata Property Act does allow a strata to add the actual reasonable legal costs of registering and enforcing a lien to the amount of the lien. The Court further noted that The Owners Strata Plan KAS2428 v. Baettig made it clear that legal costs cannot be claimed or recovered under the related sections of the Strata Property Act in the situation of pre-lien efforts to collect.

The Court noted that legal costs claimable on a lien is subject to an assessment process whereby the reasonableness of the legal costs claimed can be assessed. No such mechanism exists for legal costs claimed without a lien. S. 112 of the Strata Property Act clearly provides that before a claim to the Civil Resolution Tribunal can be made or a lien can be filed, owners have two weeks to respond to a demand for payment. In other words, the legislation provides a two-week period where payment can be made before any process in which legal costs for a demand could be claimed.

The Court concluded that strata was required to accept payment of the arrears and was not entitled to claim legal fees or reject such payment because it did not include legal fees. The ability to claim legal fees did not arise unless and until:

  • the strata gave notice under s. 112 of the Strata Property Act;
  • the owner failed to make payment of an amount properly demanded; and
  • the strata properly filed a lien against the debtor-owner.

625536 B.C. Ltd. v The Owners, Strata Plan LMS4385 is a reminder to both strata corporations and tenants to carefully think about the proper process for collecting amounts owed to the strata. Legal fees are not recoverable as a matter of course on the initial demand. The ability to recover legal fees is provided for in the Strata Property Act in specific circumstances after specific actions have occurred.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including real property disputes and creditors’ remedies. 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 Supreme Court of Canada (the “SCC”) released its written decision in the case of Michel v. Graydon, 2020 SCC 24. This was a case that involved the interpretation and application of section 152 of the Family Law Act, S.B.C. 2011, c. 25 (the “FLA”). In a unanimous decision, the SCC upheld a decision made at the Provincial Court of BC level which found that section 152 of the FLA permitted an order for child support to be granted retroactively even if the application was made when the child at issue was no longer under the age of majority or a child as defined by the legislation.

The brief facts of the case involved a couple who had a child together and, after they separated they entered into an agreement which was documented by a Consent Order whereby the child would reside primarily with her mother and the father was to pay child support to the mother. The father continued to pay the same amount without adjusting it from 2004 until 2012 when his obligation to pay child support was terminated by a Court order in April 2012.

What transpired over the years was that the parties, for various and important reasons, did not review and adjust child support as they had agreed to do in their original agreement. When the child was over the age of majority, the mother made an application under section 152 of the FLA seeking child support for her daughter retroactively. The Provincial Court judge heard the matter at trial including testimony from the child herself who was an adult at that time and found that section 152 did not prohibit an application to be brought for child support retroactively if the child entitled to support was no longer a child as defined by the legislation. The judge found the father owed retroactive child support in the amount of approximately $23,000.00 and relied on the test for retroactivity that had been established and followed in an earlier and foundational SCC case known as D.B.S. v. S.R.G., 2006 SCC 37. (“DBS”)

DBS involved an interpretation of the provisions in the Divorce Act addressing child support including section 15 which address initial applications for child support.

In deciding a case on retroactive child support the Court must apply a two part test:

  1. Does the Court have authority to order retroactive child support?
  2. If so – should it? When answering this question the Court weighs the following a factors:
    • Reasons for the applicant’s delay in bringing the application;
    • Whether or not there was blameworthy conduct by payor parent; and
    • Circumstances of the Child.
    • Whether Hardship would result from an award for retroactive support

In addition to this test, which has since been applied regularly by lower Courts deciding retroactive cases,  the SCC in DBS also made reference to the concept that section 15 of the Divorce Act cannot be used when the application is being made at a time when the child is no longer a child of the marriage as defined by the Divorce Act based on its interpretation of wording found in the Divorce Act.

Since DBS, Courts have generally interpreted, with some exceptions, this to mean that a Court is prohibited or without authority to make an order for child support retroactively if the child is no longer a child of the marriage at the time that the application is brought.

Importantly, the wording in section 152 of the FLA is different and was found not to have the narrow constraints as to the age of the child in its language.

As mentioned, the BC Provincial Court in Michel v. Graydon found that section 152 did not prohibit an order to be granted if the application was made when the child was no longer a child as defined by the FLA. The father in Michel appealed this decision to the British Columbia Supreme Court who overturned the lower Courts decision citing both DBS and another case out of BC, Dring v. Gheyle, 2018 BCCA 435 for the proposition that the Court does not have authority to grant an order for retroactive child support when the child is no longer a child. This Supreme Court of BC finding was appealed to the British Columbia Court of Appeal who relied on its earlier decisions in Dring v. Gheyle, 2018 BCCA 435 to uphold the BCSC’s decision. The appellant appealed to the SCC.

In its decision the SCC provided eloquent and thoughtful reasons that considered and spoke to the social importance of, and theory and intention behind, the payment of child support which is a fundamental and altruistic wish to see children of separated household benefit from the income available to both parents albeit in different households.

The SCC found that, if it were to interpret section 152 of the FLA narrowly, it would have an ongoing detrimental impact on the goal of ensuring that children are adequately and properly provided for by both of their parents after they separate.

The SCC expressed concern that the decision in DBS had been applied in a manner that resulted in the further feminization of poverty finding that women and children are disproportionately impoverished post separation than men.

In applying the test in DBS, the SCC found that s. 152 did provide authority to the Court to make an order for retroactive support. It then moved to discussing and applying the four factors in determining whether or not it was appropriate to make such an order.

The SCC found that there are many reasons that the recipients of child support may delay an application to seek more including, violence, lack of funds and focus of resources on child rearing responsibilities. As well, the SCC stated that the payor of support ought not to benefit from skirting an established obligation on the basis that the child was older, when the true obligation was up for determination by the Court. Instead the SCC found that a payor is in the best position to know what his or her income is and, if it has increased, he or she ought to ensure that he or she has adjusted the  amount of child support being paid.

The Court stated that the circumstances of the child should be viewed more broadly and not simply,” is the child ok and can the child now meet his or her needs,” but rather review the overall impact that the lack of proper support has had on the child.

Finally, the Court found that the hardship on the payor of having to pay a retroactive child support order should be viewed in context with the benefits that the payor received over time by under paying and conversely the hardship that was endured by the recipient and children who did not receive the benefit of proper child support.

This case illustrates the importance of child support for the health and well being of families moving forward after separation and the crucial need to ensure that there are no systemic judicial prohibitions on ensuring that the children and the primary caregiving parent receive the support that he or she deserves.

While all employees owe a duty of fidelity to their employers, certain employees owe an elevated fiduciary duty. The significance of distinguishing non-fiduciary employees from fiduciary employees is that the duty owed by a fiduciary to an employer is more exacting. The remedies available to the employer may be broader when a fiduciary employee competes, solicits customers, or misuses confidential information. The consequence of finding that an employee is a fiduciary is that non-fiduciary employees are generally only liable for the damages suffered by their employer resulting from their misconduct. Fiduciaries are potentially liable for either the damages suffered by the employer or the profit the fiduciary gained from the misconduct.

In the employment law context, there are two categories of fiduciaries: “per se” fiduciaries and ad hoc fiduciaries. “Per se” fiduciaries are persons who owe fiduciary obligations by nature of their position (e.g., directors and officers of a company). Ad hoc fiduciaries are persons who are not fiduciaries by the nature of their position but who owe a fiduciary obligation for circumstantial reasons (e.g, persons in senior management-type roles).

Vulnerability was the paramount consideration when establishing an ad hoc fiduciary relationship for many years. The emphasis on vulnerability was the product of the following three-part test enumerated by the Supreme Court of Canada in Frame v. Smith, [1987] 2 S.C.R. 99:

  • Does the fiduciary have scope for the exercise of some discretion or power?
  • Can the fiduciary unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests? and
  • Is the beneficiary peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power?

Although the Supreme Court of Canada has since clarified that vulnerability alone is insufficient to establish an ad hoc fiduciary relationship, vulnerability still plays a vital role in the assessment.

In Barton Insurance Brokers Ltd. v. Irwin, our Court of Appeal cautioned against expanding the reach of fiduciary obligations to non-senior employees, noting:

…the general interest of the public in free competition and the consideration that in general citizens should be free to pursue new opportunities, in my opinion, requires courts to exercise caution in imposing restrictive duties on former employees in less than clear circumstances. Generally speaking…the law favours the granting of freedom to individuals to pursue economic advantage through mobility in employment.

Notwithstanding this caution, courts across Canada have found that lower level/non-management employees may owe fiduciary duties to their employers. In Boehmer Box L.P. v. Ellis Packaging Limited et al., the Ontario Superior Court of Justice summarized decisions where courts affirmed the existence of a fiduciary duty on non-management/key employees. Some of the cases are striking and include relatively low-level employees. Examples of where courts found that non-senior employees owe a fiduciary duty include:

  • A placement director of a personnel agency who had the exclusive right to deal with particular clients;
  • A sales manager, who had exclusive contact with customers and had access to employer’s confidential information about the customers;
  • A senior employee who placed consultants with clients.  She had the exclusive right to place particular consultants, but no exclusive right to deal with any client.  The employee had access to confidential information about consultants;
  • A salesmen who played a key role in the day-to-day operations of the business and who formed part of a leadership team that coordinated the activities of other employees; and
  • A salesman who had responsibility for all clients within a geographic area and independent authority for decisions, including type of payment and choice of manufacturer, and who had access to all information relating to customers in the particular area.

Whether an employee owes a fiduciary duty is not cut and dry. Ad hoc fiduciary relationships are established on a case-by-case basis. As the above decision shows, relationships that do not appear fiduciary on their face, may give rise to fiduciary relationships. Many employees are under the mistaken assumption that they can freely compete against their former employers or solicit customers in the absence of a non-competition or non-solicitation agreement. Given the above, employees who seek to do so should exercise caution as they may expose themselves to personal liability.

When looking at buying a business, buyers will often request that the sellers refrain from competing with the business for a period of time after completion of the sale. We often include these type of provisions in purchase agreements or as stand-alone agreements for our clients.

These provisions must be reasonable to be enforceable. This is because they are a restriction on trade which is contrary to a free market and public policy. Courts will consider them reasonable if they meet certain criteria including that they are not overly broad in terms of either the geographic area that they cover or their duration.

If they are found to be overly broad, the courts often simply strike them down meaning they become unenforceable. That is great if the seller wants to go out and carry on a similar business but can be detrimental to a purchaser who may now find that they are competing with someone who has a stellar reputation and numerous contacts in the industry – something they specifically tried to avoid when they negotiated the terms of their business purchase.

A recent case from the Alberta Court of Appeal sheds new light on an old legal principal that takes a more precise approach than simply striking down the entire non-competition provision or agreement.

In the case of City Wide Towing and Recovery Service Ltd v Poole, 2020 ABCA 305, the court severed the portion of the non-competition agreement that was overly broad so that the parties were still bound by the non-competition provision, but in its modified version.

The non-competition agreement in this case included a provision that specifically stated that the parties agreed that a court could sever the portions of the agreement necessary to make it valid. However, it is not clear whether the court relied on this provision in coming to its decision.

The take-away for buyers wanting non-competition agreements to be enforceable is to always make sure that the provision is as reasonable as possible and focus on the business that is being purchased when looking at the criteria of geographic and temporal scope. It may also be beneficial to request the inclusion of a provision stating that the parties agree that a court should sever any provisions necessary to keep the rest of the agreement valid.

For a seller of a business, it may be worth pushing back on any provision that states that the parties agree that a court may sever offending provisions. Thus, if the parties end up in a court battle the seller may have a stronger argument that the court should default to the generally accepted practice that the entire non-competition agreement should be found unenforceable rather than request that a court try to save a portion of it.

At the end of the day, the City Wide case does not change the general state of the law, nor the advice that parties should try to come to a reasonable solution when negotiating the terms of any business transaction. However, you should be alert to the fact that a Canadian appeal’s court has recently opted to modify an unenforceable provision in a non-competition agreement rather than determine that the entire agreement is unenforceable.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

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 Wills and Estates at Pushor Mitchell LLP in Kelowna.

There is frequent need for parties who obtain judgments in jurisdictions outside of BC to come to BC seeking to enforce their judgments against assets of judgment creditors held in BC. The general framework for doing so is found in the Court Order Enforcement Act, R.S.B.C. 1996, c. 78 (the “COEA”). The COEA generally provides that the judgment be for a dollar amount from a reciprocating jurisdictions to be enforceable as though it were a judgment in BC. Such jurisdictions include all the provinces except Quebec, Australia, certain states in the US and certain European countries.

In the recent decision of Lanfer v Eilers, 2020 BCSC 1325 (CanLII) the court was called upon to enforce a judgment obtained in a reciprocating jurisdiction, Germany. The judgment in question held that certain property in British Columbia was entitled to be inherited by the plaintiffs through a so-described inheritance contract. The subject property was in foreclosure and the plaintiffs registered a certificate of pending litigation claiming an interest in the property.

The plaintiffs sought to have BC’s courts enforce the German order to transfer the property to the plaintiffs on payment of €21,864. The defendant resisted the application, relying on the long-standing principle that Canadian courts will not enforce foreign judgments relating to or affecting an interest in land.

The Court in Lanfer v Eilers explored the applicable law. It noted that, in addition to the COEA, the common law provides that foreign judgement can be recognized and enforced in Canada where such judgments:

  1. are for a debt or definite sum of money other than taxes, fines or penalties; and
  2. are final and conclusive;
  3. are rendered by a court of competent jurisdiction;
  4. are obtained without fraud;
  5. stem from proceedings that comply with the Canadian concept of natural justice; and
  6. are not be contrary to public policy.

While it was conceded that there were no issues with whether the German judgment was properly obtained or determined, the defendant argued and the Court agreed that that the plaintiffs sought to enforce a judgment which would require ordering parties to execute documents to facilitate the conveyance of the subject property and the Land Title Office to participate in same. The Court was not prepared to grant such a judgment.

The Court held that the principle that Canadian courts will not enforce foreign judgments relating to or affecting an interest in land could not be disturbed in the case before it or that there had been any evolution of that principle which opened the door to argue an exception to the principle. The Court’s views and the law were summarized in para. 46 as follows:

Judgments affecting the title to or possession of real property should stand on a different footing from judgments enforcing rights as between individuals. Each country is defined by reference to its geographical boundaries and the land within those boundaries. Each country is entitled to exclusive jurisdiction over the land within its boundaries and no other country is entitled to encroach on that jurisdiction. Therefore, it is logical to require that decisions affecting the title to or possession of real property be made in accordance with the laws of the country where the property is situate.

The Court dismissed the plaintiff’s claim, cancelled their certificate of pending litigation and ordered costs against the plaintiffs.

Lanfer v Eilers is a reminder that enforcement of foreign judgments in British Columbia can be a complex process. Parties seeking to enforce foreign judgments should consider first whether their judgment is generally enforceable as one for cash and then considered whether the judgment meets all the other tests of enforceability. Timely legal advice can assist in such evaluations and other remedies available to enforce a foreign judgment once registered.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including real property disputes and creditors’ remedies. 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.

Employees can be an organization’s greatest asset but also – in the circumstances of a corporate transaction – its greatest liability. Depending on the nature of the transaction, the transaction itself may have the effect of terminating the employment of the vendor’s employees and trigger unforeseen severance obligations.

Corporate transactions take two forms: asset sales and share sales. In an asset sale, the vendor agrees to sell some or all its assets. The purchaser is not buying the company per se. It is purchasing its assets. In a share sale, the vendor sells its shares to the purchaser and (unless agreed to otherwise) the purchaser assumes all the assets and liabilities of the vendor. The distinction between the two types of transactions is important because employment contracts cannot be assigned without consent. An asset sale results in a termination of employment as the purchaser is not buying the shares of the vendor and employees cannot be purchased. A share sale does not result in the termination of employment.

Employees have an obligation to accept substantially similar offers of employment. As a result, the severance obligations of a vendor in an asset sale are generally satisfied if the purchaser agrees to offer new employment to the vendor’s employees. That said, the purchaser in an asset sale is not obliged to offer new employment to the vendor’s employees and a refusal to offer new employment to the vendor’s employees will likely increase a vendor’s severance obligations. The parties will also want to consider who is liable for severance payments if the purchaser hires the vendor’s employees but terminates them shortly after the closing date. Depending on the circumstances and the wording of the asset purchase agreement, the vendor (to its surprise) may be liable for severance payments despite not being involved in the decision to terminate the employees’ employment.

If a purchaser offers new employment to some or all of the vendor’s employees, the purchaser will want to strongly consider whether it will agree to recognize the employees’ prior years of service with the vendor and have employees execute a new employment agreement prior to the closing date.

Many parties to a corporate transaction are so focused on “getting the deal done” that they do not stop to consider the potential severance obligations resulting from an asset sale, including pay in lieu of reasonable notice, contractual severance pay, change in control provisions, termination pay and group termination pay. Vendors and purchasers both benefit from knowing the employment obligations and liabilities that flow from a corporate transaction. Failing to account for these may result in considerable unplanned costs.

The Canada Child Benefit is a tax-free monthly benefit provided to Canadian low and middle-income families which the Government of Canada introduced in 2016 (the “CCB”).

The CCB is determined based on your household income and the number of children. If you are separated from the other guardian of your child, CRA will take into consideration the custody arrangement.

CRA and the Income Tax Act uses the term “shared custody” to mean if the child resides with both parents on a “more or less equal basis.”

If you are in a primary custody arrangement regarding your child, this means the child resides with you the majority of the time (more than 60% of the time) and you have the primary responsibility for the care and upbringing of the child, then CRA will determine that you are entitled to receive the full amount of CCB based on your household income.

If you are in a shared custody arrangement with your child, which means for CCB purposes:

  • You are one of two parents (or guardians) who are not living in the same residence or as common law spouses of each other;
  • Your child resides with you and the other parent sharing equal or near equal time between households; and
  • When your child lives with you, you fulfill the responsibility for the care and upbringing of the child.

Therefore, if you have your child living with you close to half the time (40-60% of the time) then you and the other parent of your child should be reporting to CRA accurately that you are in a shared custody arrangement.  If your household qualifies on a household income basis, CCB will then be apportioned between the households.

This division of CCB does not mean that you and the other parent will necessarily receive the same amount of CCB as the amount is determined according to each household income.

Problems and disputes often arise between separated parents if:

  1. If they are not in agreement on whether the parenting arrangement is a primary custody or shared custody arrangement;
  2. when one party does not report accurately to CRA; or
  3. when there is a delay in the reporting to CRA in the event of a change in the custody arrangement.

It these circumstances, unfortunately sometimes the person who has been receiving the full CCB for some time will be required to repay a certain amount to CRA and the party who should have been receiving a portion of the CCB (sometimes for quite some time) could receive retroactive payment. This can then be a source of dispute between the parents.

It is important to consider this benefit when you separate and to be on the same page with the other parent on your reporting to CRA to ensure that there are no unexpected surprises that occur on either side. This is one of the many reasons why it is important to have clarity and a written agreement on the parenting arrangement to avoid any confusion or disputes on this issue.


If you have any further questions, we recommend that you have a discussion with your family lawyer and your tax accountant.  Please be advised that this information is subject to change as the CRA changes their benefits and qualification requirements.  This article is for informational purposes and is not specific legal advice, tax or accounting advice of any kind.

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.

Often times parties to a contract have a less than clear understanding of many of the principles of contractual law. Even if it is clear what the explicit terms of a contract are, parties may be unclear about implied or impugned terms, the interpretation of the contract or what remedies might follow when the other party breaches the contract. The recent decision of Munro v. James, 2020 BCSC 1348 (CanLII) is a case that contains many concise statements of the principles applicable to contractual law in addition to being an interesting and relatively unique dispute.

In Munro, the disputed contract concerned an agreement that the plaintiffs would pay Ms. James $100,000, take care of her farm and ponies for the remainder of Ms. James’ life and, in exchange, would be allowed to live at the Ms. James’ property, build a home on the property and be entitled to Ms. James’ estate when she passed (the “Contract”). Issues arose because Ms. James purported to terminate the Contract and she also executed a new will appointing another defendant, Ms. Brown, as her executor and sole beneficiary.

In its analysis, the Court first set out the standard for interpreting contracts in Canada, namely, “Words in a contract must be construed in their ordinary and natural sense. The intention of the parties with respect to the meaning of words in a contract must be determined objectively with reference to the surrounding circumstances at the time of signing the contract…” (para. 43). The Court went on to cite that the intention of the parties is not found by their actual state of mind, but how a party’s conduct would strike a reasonable person viewing the matter (para. 44).

Part of the defence advanced was premised on the argument that the Contract contained an implied term that it could be terminated by notice. The Court reviewed the law on implied terms and, more particularly, the principle that implied terms will only be read into a contract where such a term is necessary to give effect to the intention of the parties (para. 67). It went on to cite the following factors to be considered with respect to an alleged implied term (para. 68):

  • it must be reasonable and equitable;
  • it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it;
  • it must be so obvious that “it goes without saying”;
  • it must be capable of clear expression; and
  • it must not contradict any express term of the contract.

The Court rejected that the alleged implied term existed, finding only a breach of the Contract could properly ground its termination. The Court rejected all arguments advanced as to the alleged ways in which the plaintiffs were alleged to have breached the Contract.

The Court analyzed whether Ms. James’ conduct amounted to anticipatory breach. It set out that an anticipatory breach is one where “…a party, by express language or conduct, or as a matter of implication from what he has said and done, repudiates his contractual obligation before they fall due…” and that such a breach requires the alleging party to establish that the conduct amounts to a total rejection of the obligations of a contract without justification (para. 182). The Court found Ms. James’ conduct to be such a breach without justification.

The Court went on to note that, in the face of an anticipatory breach, the plaintiffs had the option to either accept the breach, treat the Contract as ended and suing for damages or declining to accept the breach and seeking specific performance with such an election not being required until judgment (para. 186). The Court noted that specific performance does not need to be perfectly requested if the pleadings essentially plead what amounts to a request for specific performance. The plaintiffs were seeking specific performance.

Specific performance is the notion that a party will be ordered to perform a contract as agreed. As the Court noted, an order for specific performance is a discretionary remedy and the Court will substitute damages instead unless money is not an adequate remedy (para. 193). The Court noted that specific performance was historically more commonly available for contracts involving land (para. 195). The Court also noted that, while comparable properties may exist, the plaintiffs made the property in question their home and invested significant funds and energy into it.

Historically, a party seeking specific performance must perform their part of the contract (para. 221), but such a requirement, known as the doctrine of mutuality, has been more limited in application in more recent developments. The more modern approach required the Court to consider whether orders could be made for specific performance that would provide sufficient safeguards to Ms. James that the plaintiffs would perform their obligations under the Contract and, if so, specific performance could be ordered (para. 223). The Court ultimately found that the plaintiffs were entitled to specific performance, being an entitlement to receive Ms. James’ estate on her death.

Having found that the plaintiffs were entitled to the specific performance of the receipt of Ms. James’ estate on her death, the Court also found it necessary to make other orders which preserved the intention of the Contract including that the subject property could not be further encumbered or disposed of without consent of the plaintiffs or order of the Court. It also ordered its judgment and a related mortgage between the parties to be registered on title among other things.

Munro is a case worth reviewing as a refresher on many of the principles applicable in the interpretation of contracts and the remedies which might flow from a breach of a contract.

Other articles I have written which touch on some of the issues in this article include:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including 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.

COVID-19 has posed great challenges for employers who are facing an interruption, modification, or perhaps even a closure of their businesses.  In an effort to survive, employers have terminated or laid off employees, or modified working conditions or wages.

These moves have exposed employers to claims under the Employment Standards Act and claims in the courts for constructive dismissal.  It is yet to be seen how these claims will be handled by the courts but there is no doubt that there will liability to employers in some cases for severance pay or damages for constructive dismissal.  (Constructive dismissal is explained here: Constructive Dismissal.)

The good news for employers is that uncertainty regarding the ability to lay-off or terminate in the event of a crisis like COVID-19 can be effectively mitigated in a properly drafted employment agreement. While these agreements cannot avoid the payment of statutory severance pay (unless the concept of frustration comes into play COVID-19 and Frustration of Contracts) the agreements can sanction modifications in working conditions and compensation and limit severance pay to the minimum standards in the Employment Standards Act.

An Executor/Administrator/Trustee (“Personal Representative”), must be ready at all times to account for the trust property. The Personal Representative has a stringent duty to keep detailed records of all capital, expense and income transactions with documents, invoices and receipts.

A “Passing of Accounts” is usually the final piece of the Estate process. It is the formal Court process to have the accounting of the Personal Representative approved by a Judge. The passing of accounts can be done formally through the Courts, or informally by the consent of all the beneficiaries. That being said, in those cases where there is a minor or incapable beneficiary, the passing of accounts cannot be waived and must go before the Court.

More often than not, the majority of accounts are approved and consented to in writing by the adult/capable beneficiaries. However, where beneficiaries are at odds, a formal Court passing of accounts is usually inevitable. If a Personal Representative anticipates controversy, it is usually recommended that they voluntarily submit their accounts to audit before the Court, by making an application for the formal passing of their accounts. If the accounts are approved by the Court, the Personal Representative is then absolved of any liability with respect to the accounts (unless there has been a fraud). A formal Court passing is also useful as it allows the Personal Representative to take his/her compensation if the beneficiaries are refusing to consent to same.

The function of the Court on a passing of accounts was well set out in the case of Estate of Fannie Cleverley 2000 BCSC 1454, “…the function of the court is to determine whether the executor has exercised his duties under the will properly and in accordance with the law.”


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

When you become the registered owner of real property in British Columbia that is free and clear of any financial encumbrances or agreements for sale, the Land Title Office has the ability to issue to you a “Duplicate Certificate of Title” (or more simply, a “Duplicate Title”) that prevents the majority of possible changes from being made to your Title.

In the past, the issuance of your Duplicate Title to a lender as a form of security for a loan was much more commonplace than it is today. The practical downside to the practice of issuing Duplicate Title is that it involves the physical delivery of a certificate that, if lost or destroyed, prevents the Land Title Office from making changes to a property’s Title meaning that it cannot be sold or mortgaged.

For clients who have owned their property for an extended period of time issues with Duplicate Title typically arise because at one point during their ownership there was a loan that they had with a major financial institution that required as part of their loan security that a duplicate indefeasible title certificate be provided to the bank. Then, even though the loan has since been repaid and all security was to be discharged, the Duplicate Title certificate was lost by the bank or was returned by the bank to the client who subsequently misplaced same without submitting same back to the land title office.

In either circumstance, the Duplicate Title was not returned to the Land Title Office and Title for the property shows that Duplicate Title  as issued and outstanding, preventing the client from completing fundamental rights associated with property ownership such as being able to transfer or secure loans against the property.

The solution to this problem of lost Duplicate Title certificate is to apply to the Land Title Office for the issuance of a provisional indefeasible title (a “PIT“) which can then be returned to the Land Title Office for cancellation pursuant to section 176 of the Land Title Act [RSBC 1996] Chapter 250 (the “Act“).

A PIT is very useful because, as per section 194 of the Act, a PIT can be used for all purposes and uses that the lost Duplicate Title certificate could have been used for and relates back to the date of registration or issuance of the lost Duplicate Title.

Section 193 of the Act specifically contemplates lost Duplicate Title certificates and the steps that clients must take in order to obtain a PIT are as follows:

  1. Electronically submit a PIT application to the land title office with proof of loss evidenced by an affidavit sworn by the registered owner(s) (the “Affidavit”).
  2. The Affidavit must contain the following:
    • the title number, legal description of the property, and the full legal name(s) of the registered owner(s).
    • the particulars as to:
    • – the delivery of the Duplicate Title from the time it was taken from the land title office to its receipt by the registered owner;
      – the circumstances of its loss; and
      – the efforts made to find it;

    • a statement that the registered owner(s) have been in uninterrupted legal possession of the land for X number of years without any adverse claim having been made against him/her/them;
    • a statement that the registered owner(s) have never pledged the duplicate indefeasible title or hypothecated it by way of security for a loan or otherwise except as set out in the Affidavit; and
    • the present market value of the property (land plus improvements).

  3. If a lender or other third party(ies) obtained or made use of the Duplicate Title certificate after its delivery form the land title office and before it was lost, the registered owner(s) should obtain sworn affidavits from such party(ies) in order to demonstrate continuity or a chain of events leading to its loss in order to provide comfort to the registrar that the Duplicate Title certificate could not have fallen into the hands of someone inappropriate.
  4. Once submitted to the Land Title Office, the application will undergo a review and if approved the Land Title Office will contact our office regarding advertising requirements about the issuance of a PIT and any further instructions they may have in connection with the application.
  5. With respect to advertisements, the Land Title Office may require an advertisement of the registrar’s intention to issue a PIT for whatever time period and in locations (including one or more newspapers, or the British Columbia Gazette, a Crown publication, or both) that the registrar considers necessary; however, discretion from the Land Title Office may be exercised deeming such advertisement not necessary in the circumstances.

If issued, the title for the property at issue will be updated to note the issuance of the PIT and the date of issue while also referring to the Affidavit filed as evidence of loss by its filing number.

Should you or someone you know require assistance with a lost Duplicate Title certificate, or any other real property related matter, please do not hesitate to contact Brian Stephenson at stephenson@pushormitchell.com.

When we do estate planning for clients with significant value in their estates, we often created spousal trusts for their spouse and separate trusts for each child.  This used to be advantageous from a tax standpoint, as each trust was taxed as a separate taxpayer, so each trust had the benefit of graduated marginal rates on income earned and left in the trust.  This benefit ended a few years ago when tax laws were changed to make income earned in most trusts taxed at the highest marginal rate.

If the sole purpose of the separate trusts in your will was the income splitting that was available from the former tax laws, the need for the separate trusts is now gone.  Simplifying your will to remove the separate trusts can be an advantage for ease of administration and reduced professional costs when you pass.

However, there can be other uses for separate trusts in your will, such as protection from creditors or partners, or for protection of the assets for a child who cannot handle money well.

If the trustee of the trust is a person or entity other than your child, and the beneficiaries of the trust include your child and their children or other beneficiaries, there can still be protective benefits from such a trust.

Speak to your estate planning lawyer to get advice on what makes sense in your situation.

Theresa Arsenault, Q.C. helps clients with estate planning and business and real estate matters.

In this series of articles BC and Alberta personal injury and medical malpractice lawyer Angela Price-Stephens describes her top 25 notable medical malpractice cases of her 25-year career to date. Her selection of cases is a representation of the breadth of her experience, the complexity of cases, the twists and turns in the evidence and the dramatic benefit to her clients and their respective families by successfully pursuing their claim with Angela and her team.

Angela has litigated cases across Canada and England and Wales. The names and distinguishing details of the cases referred to in this series of articles have been changed to protect the client. In all cases of settlement for medical malpractice the lawyers for the defendant healthcare providers insist on a confidentiality clause in which the existence of a settlement (payout of money to the former patient, irrespective of whether an admission of liability was made) must remain a secret.

In this eighth article in the series Angela reflects on the case of Jaeden and his mother Jennifer who were both severely damaged as a result of a negligently managed birth. Her first child was born by emergency C-section for failure to progress (which essentially means that while the process of labour started, with contractions and dilation of the cervix, this progress halted). The second pregnancy with Jaeden, two years later, was uneventful; all milestones in the pregnancy were met and labour was induced artificially at 41 weeks. Jennifer’s labour was long with the first stage lasting over 30 hours. Contractions stopped. Jennifer complained of extreme abdominal pain which was initially dismissed as normal labour pains. Unfortunately the fetal heart trace was either initially misread or simply not understood. The trace showed patterns of fetal heart rate which are entirely consistent with severe fetal distress. They were properly described as recurrent late decelerations and bradycardia; which in layman’s terms are a slow heart rate, slow to recover to a normal level. The student nurse noted the baby had moved ‘back’, losing the gains it had achieved moving towards the birth canal. The mother’s complaints of abdominal pain heightened to a pain scale which she described as “unbearable”. As a result of the severe pain, despite analgesic provided to the labouring mother and a nurse paged the on-call obstetrician. Evidence demonstrated that the nurses attending Jennifer has failed to read the fetal heart tracing correctly; failed to recognize the risk of uterine rupture following a previous C-section and the red flag of the baby losing ground in its entry to the world.

Essentially the catastrophe that was unfolding went unrecognized. Jennifer’s previous C-section scar had torn and her unborn child had been released into the pelvic cavity. Unfortunately the obstetrician on call did not arrive in a timely fashion and there were crucial minutes were Jaeden did not receive sufficient oxygen. Upon arrival of the obstetrician the ruptured uterus was recognized and Jennifer gave birth under general anesthetic. He was born ‘floppy’ and ‘blue’ and required considerable respiratory supported. Jaeden was later diagnosed with global hypoxic brain damage caused by lack of oxygen during the birth. The damage within Jennifer’s pelvis included damage to her bladder, left fallopian tube and a ruptured uterus requiring hysterectomy.

While the story thus far necessarily intimates negligence, claims against doctors, clinicians and health authorities are rarely straight forward. At the time Jaeden was born it was standard of care for a mother to have a trial of labour after caesarian section (VBAC). A ruptured uterus is a risk of labour and so, as with every other case of alleged negligence, is it essential to identify specifically what steps or failures caused or contributed to the devastating outcome.

With careful use of independent experts Angela demonstrated that there had been a breach of standard of care in inducing the labour, which increases risks of complications, with insufficient resources readily available to response to a potential emergency. It was also demonstrated the fetal heart trace was incorrectly read. Had the trace been understood and acted upon the baby would have been born by emergency C-section likely 42 minutes earlier than had actually occurred. The medical evidence supported the theory that had Jaeden been born at least 25 minutes earlier he would likely have avoided brain damage.

The tragedy of situations like Jaeden and Jennifer is that they affect everyone involved, for life. Jaeden will never live independently, go to school, university, enjoy a career, have a family of his own. The dynamics of Jennifer’s family have drastically changed. She and her partner try to provide a ‘normal’ life to their first child but there is simply never enough time. The divergent needs of both their children are irreconcilable and insurmountable. There are few marriages or partnerships that last such a catastrophic event and the continuing aftermath.

When seeking compensation for families affected by such catastrophic medical mistakes Angela and her team are careful to ensure the full picture of the loss is captured. Experts are engaged not just to demonstrate the loss but to support the family members while the litigation is ongoing. It is essential for those injured to have the best opportunity to receive both compensation and the support of an in tact family.

Jaeden and Jennifer’s claims were resolved for large sums which included the significant life-long care Jaeden would require to keep him safe and in a loving home (and out of an institution). Jennifer was also compensated for the psychological injuries sustained during the highly traumatic birth during which she feared for both her own life and the life of her unborn child and the chronic pain of her pelvic injuries.

One of the most frequent types of construction disputes centers on what is owed vs. what is charged for work. Whether due to poor contractual drafting, incomplete oral negotiations or parties failing to properly reach a meeting of the minds, what a contractor says is owed for its work is often far different from what an owner agrees is owed or is prepared to pay. Many of the issues which lead to such disputes were at the heart of the disagreements in Anway Construction Ltd. v Hunte, 2020 BCSC 601 (CanLII).

In the case the owners had hired a contractor to demolish a home and construct a new home. The owners put out a call for proposals and received several bids. The contractor’s bid was for a fix-price of $766,651.44 and described that price as the upper limit for construction. The parties went back and forth on details and the contractor provided a second quote described as “budget only” for $746,823 plus tax.

Further discussions and negotiations followed and eventually the parties entered into a cost-plus contract with a completion date of 10 months later and the fees to be costs of construction plus 10%. The original contract discussed a guaranteed maximum price (“GMP”) above which the contractor would not be entitled to payment but failed to detail what the GMP would be. To secure construction financing, a version of the contract with at $925,000 GMP was submitted to the owners’ bank. Whether the contractor agreed to this revision was a matter of dispute.

Construction began late for several reasons. As work progressed the contractor did provide ongoing costs of construction and comparisons to the original budget but did not provide information about how far along the project had progressed or provide a detailed construction schedule contemplated by the contract.

The parties began to have disputes about the budget, pricing, costs to complete, whether there was a GMP and whether the contractor exceeded the GMP. The owners’ bank caught wind of the disputes and refused to advance funds. The contractor and its suppliers and subcontractors stopped work and filed builders’ liens against the property.

As the dust settled, while there was some dispute about the numbers which was resolved by the Court, the contractor billed a total of $1,047,916.11, of which $924,54.56 was paid. The Contractor claimed $117,456.17 was owed in its lien. The owners took the position that the contractor was in breach of the contract including by exceeding the GMP. The owners had to re-finance and it cost near a million dollars to get their home to the point where they could move in.

The Court found that the GMP was in the contractor’s contemplation and communications before it was included in the revised contract. It went on to find that the construction contract was amended to include a GMP. Arguments about a lack of fresh consideration for the GMP amendment were rejected.

The Court also rejected that the contractor’s work varied significantly from the original plans such that claims for extras or changes to the scope of work were well-grounded. The court cited the well-known conditions of when extras are chargeable even where no change order is completed as detailed in Kei-Ron Holdings Ltd. v. Coquihalla Motor Inn Ltd. [1996] B.C.J. No. 1237 (S.C.):

  • the work performed was, in fact, “extra work” and not covered by the terms of the contract;
  • the work was in fact authorized by the owner;
  • the owner was aware that the extra work would increase the cost of the project; and
  • the owner waived the provision requiring changes to be made in writing or acquiesced in the fact that the parties were ignoring those provisions.

The Court found that the contractor failed to satisfy at least the last two conditions. Even if the GMP did not apply and the contract was cost plus, the contractor had submitted a budget and was obliged to notify the owners when costs where overrunning the budget (citing Infinity Construction Inc. v. Skyline Executive Acquisitions Inc.2020 ONSC 77), which the contractor failed to do. It was not until late in the construction that the contractor clearly indicated that construction could not be completed within the original budget, leaving the owners unable to do anything to get costs back under control.

The Court declined the owners’ arguments about misrepresentations made by the contractor.

Having found that there was a GMP, the court then turned to damages. The Court found that the owners were entitled to be placed in the position they would have been had the contractor properly performed the contract; more particularly, that work would have completed in 10 months for $925,000 plus GST.

The Court found there was insufficient evidence to explain why completion of the work increased so substantially once a second contractor was brought in to compete the work and, as such, did not make an award based on such increased costs. The Court awarded the following to the owners:

  • $505,591.56 being the costs to complete the contractor’s work based on the level of progress achieved and having already been paid roughly the GMP amount;
  • $153,135.26 being the amount to clear liens registered by the contractor and its suppliers and subcontractors;
  • $113,748.33 being the costs to find alternative accommodations after when work ought to have been completed;
  • $428.75 being a partial award of claimed moving costs;
  • $7,533.86 being a partial award of claimed storage costs;
  • $56,506.27 for additional interest and borrowing costs; or
  • $836,944.03 in total.

Anway Construction Ltd. v Hunte is a cautionary tale to both contractors and owners. Had the contractor properly kept the owners informers of what it said were changes to the costs of construction and got such changes approved or had proper change orders executed, it might have succeeded in its claims for payment in excess of the GMP and defended the claims against it. Similarly, the owners had significant exposure in the case as only a small number of findings on contested evidence resulted in the difference between their substantial judgment vs. being found liable to the contractor for a debt in excess of $100,000.

Parties to a construction contract are urged to keep in mind that a budget is generally material to the interpretation and performance of a construction contract whether the contract is fixed or cost plus. Similarly, if the scope of work might be changing, such changes should be well-documented both as to how the scope is changing and what the effects the change will have on price. If the parties wish to have a guaranteed maximum price, contractual clauses related to that should be carefully drafted and kept in mind. Lastly, the best protection to owners and contracts is to have well-informed and well documented discussions of the progress of work, the costs of work to date, the costs to complete work, whether any budget is anticipated to be exceeded and as to the overall progress of work.

For related articles on the subjects in this article, please consider:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in several issues related to construction 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.

On June 25, 2020, the province introduced regulatory amendments to allow temporary layoffs to continue for up to 24 weeks, or until August 30th, whichever comes first.  In connection with that initiative, the government indicated that the only avenue for any further extension to layoff periods would be through the variance process under section 72 of the Employment Standards Act.

Employers and workers who need to extend temporary layoffs due to COVID-19 can apply for a variance using the Employment Standards Branch’s new online application.

There are 5 steps involved in the joint application process.

  1. Before applying, employers must make sure the majority of affected employees are aware of the application and agree to continue to be temporarily laid-off from work. More than 50% of affected employees must approve the decision to apply for a variance.  If a majority decision is not reached, an employer cannot proceed with the application.
  2. Employers must provide documentary proof that more than 50% of affected employees approve the decision to apply for a variance. The Employment Standards Branch has designed a survey template to assist employers in this regard.
  3. Employers submit their online application through the Employment Standards Branch website.
  4. Employers will receive a notice from the Employment Standards Branch with respect to their variance application. If the variance is granted, employers will be emailed a copy of the variance decision.  If the variance is denied, a formal decision is sent by registered mail to both the employer and affected employees
  5. If the variance is granted, the conditions in the variance must be followed and a copy of the variance must be posted at the worksite.

Both employers and employees may benefit from an extension to a temporary layoff.  Employers may benefit by not having to terminate employees and provide termination pay.  Employees may benefit by remaining continuously employed with no interruption to rate of pay, vacation accrual, and years of service.

However, making the majority of affected employees aware of the application and having them agree to continue to be temporarily laid-off from work will pose challenges for some employers.  Employees may be unlikely to complete the survey and may not agree to continue to be laid-off beyond August 30, 2020.

In addition, employers are expected to have reasonable plans to recall employees by a specific date that falls after August 30, 2020.  The Employment Standards Branch does acknowledge that employers are facing uncertainty and determining a firm recall date for employees because of variables affecting BC’s Restart Plan may be difficult.

Applications should be submitted by no later than August 25, 2020 to receive a decision by August 30, 2020 to avoid layoffs being deemed terminations and potentially requiring the payment of termination pay.

Should you have any questions or require legal support, please contact any one of the Pushor Mitchell Employment team.

When an employee voluntarily resigns from their employment they cannot successfully sue their employer for wrongful dismissal. However, determining whether an employee has actually resigned is not always straightforward. In the recent BC Supreme Court decision, Coutlee v. Apex Granite & Tile Inc., 2020 BCSC 315, the Court had to determine whether an employee had resigned or been dismissed after he was asked to leave the job site.

Facts

The employer, Apex, provided tile and granite installation services in the construction sector. Apex employed Mr. Coutlee on several projects. There were a few incidents prior to August 17, 2018 when Mr. Coutlee had been suspended, but Mr. Coutlee himself, had never treated the suspensions as terminations.

On August 17, 2018 Mr. Coutlee refused to speak with the operations manager on site. The operations manager said he would have to suspend Mr. Coutlee if he refused to speak with him. Mr. Coutlee abruptly said, “Am I fired?” The operations manager said “No, I want to talk to you but if you won’t talk to me you are suspended and you can pack up your tools and get off the site.” Mr. Coutlee asked again if he had been fired and the operations manager said “No.” After the incident the operations manager directed a supervisor to prepare a “notice of non-compliance”. The operations manager assumed Mr. Coutlee would cool off and call for his next work assignment, but he never returned and a few weeks later when Mr. Coutlee called to ask for his ROE, the operations manager took this as an indication he had resigned.

Issue

The central issue in this case was whether the actions of Mr. Coutlee amounted to resignation, or whether the employer’s actions amounted to dismissal.

Analysis and Conclusion

The Court determined that Mr. Coutlee’s employment was not terminated. The test for dismissal, or termination is purely objective: “A finding of dismissal must be based on an objective test: whether the acts of the employer, objectively view, amount to dismissal.” The dispute on August 17, 2018 between the operations manager and Mr. Coutlee ended with a clear denial from the operations manager that Mr. Coutlee’s employment had been terminated. Mr. Coutlee did not meet the burden to prove that he had been dismissed.

The Court went on to analyze whether Mr. Coutlee had resigned. 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:

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

The court concluded that due to his past dealings with Apex, Mr. Coutlee’s request for a ROE was a clear and unequivocal expression of his voluntary intent to resign.

Ultimately, the Court dismissed Mr. Coutlee’s claim for wrongful dismissal.

Take-away for employers

Employers should be careful in their communications with employees who are asked to leave the job site (or leave in a huff), and make sure to keep good records of their dealings with the employee.

A life estate is the ownership of property/land for the duration of a person’s life. It is a tool that is commonly used in blended families, where one spouse comes to the second (or third) marriage with property that he/she wishes to preserve for his/her own children from a previous marriage. The owner of that property can grant a life estate in the property that ends upon the death of the surviving spouse, when the ownership of the property may pass to the testator’s own children via his/her Will.

An example of a common Will clause to this effect is as follows:

“Life estate in principal residence

If my wife, X, survives me, I direct my Trustees to hold whatever real property I may own and which X and I may be using as our principal residence as at the date of my death (the “Property”) as a home for X during her lifetime, or for such shorter period as X desires or as my Trustees in the exercise of an absolute discretion shall consider appropriate.  During such time that this Property is used as a home for X:

(a)         The utilities and any other amounts required for repairs and for the general upkeep of the Property shall be paid out of my Estate;

(b)         The taxes, insurance, mortgage payments and any other expenses related to the Property and not otherwise payable by X (the “Expenses”) shall be paid by my Estate; and

(c)          My Trustees shall set aside an amount of money (the “House Fund”) which, in their absolute discretion, is sufficient to pay these Expenses and shall pay these Expenses from this House Fund during the period of time that X continues to reside in the Property, after which time the remainder of the House Fund shall form part of the residue of my Estate.

Upon the death of X, or if at any time when in the exercise of an absolute discretion my Trustees consider it no longer appropriate to retain such Property as a home for X, my Trustees shall sell such Property and the proceeds of sale shall form part of the residue of my Estate.”

The life estate is a useful tool for spouses in a second marriage who want to ensure that when the property owner passes, the spouse has the ability to remain in their principal residence and not be disrupted or forced to move out. You will note that the above clause gives the Trustees a lot of discretion to potentially end the life estate if they “consider it no longer appropriate to retain such Property as a home for X”.


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

 

Recent changes under the Business Corporations Act (British Columbia) as of June 30, 2020 have resulted in the formation of a new type of company know as a “benefit company”.

A benefit company is like a standard corporation in the sense that it is a for-profit entity. However, benefit companies have two additional requirements. A benefit company must be committed to conducting business in a “responsible and sustainable” way. Second, a benefit company must promote one or more “public benefits”. A public benefit is defined in the Business Corporations Act as a “positive effect” that benefits a class of persons other than the shareholders of the company. This is intended to be interpreted broadly, as a positive effect can include an effect on artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific or technological groups.

The general provisions of the Business Corporations Act apply to benefit companies, and in this regard, they are no different than a normal company from a maintenance and organization perspective. Additional organization features of benefit companies include the following:

  • A benefit company must have a “benefit statement” in its notice of articles
  • A benefit company must include a “benefit provision” in the articles which states the public benefits that the company will promote, as well as the company’s intent and to conduct business in a responsible and sustainable manner
  • A benefit company must publish an annual benefit report that provides an assessment of the company’s performance against a third-party standard. A third-party standard means a standard for defining, reporting and assessing the performance of a benefit company in conducting its business in a responsible and sustainable manner and in relation to its public benefits.

There is also an additional requirement for directors and officers. For a standard company, directors and officers have a duty to act in the best interests of the company. Directors and officers of a benefit company have an additional duty to act honestly and in good faith with a view to conducting the business of the company in a responsible and sustainable manner, and promoting the public benefits of the company. This is very important, as directors and officers of a benefit company will have to balance the duty to act in the best interests of the company with this new benefit duty. In other words, directors and officers of benefit companies must consider broader stakeholders and goals than a normal company.

Why would a benefit company be beneficial (no pun intended)? Given society’s ever increasing intent to promote and emphasize key corporate concepts such as sustainability, social responsibility and good corporate governance, a benefit company may be popular for those who wish to emphasize these characteristics, or want to enhance community recognition as it relates to the company’s core values. This also may be desirable for a company when attracting key investors who are focused on these concepts and values as it relates to the greater community.

At present, there does not appear to be any tax advantages to being a benefit company.


This article is provided as information only and should not be construed as legal advice. Always consult with a lawyer to provide you with advice specific to your own situation. For more information, please contact Patrick Bobyn by calling (250) 869-1286 or by email at bobyn@pushormitchell.com.

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

The BC NDP are moving forward with proposed changes that claim to modernize the Workers’ Compensation Act.  These changes are being proposed as the BC NDP seek to provide better support to injured workers and their families and to enhance WorkSafeBC’s ability to investigate workplace incidents.

The proposed changes that are being pushed through include:

  • raising the maximum annual salary amount on which workers’ compensation benefits are based up to $100,000;
  • authorizing WorkSafeBC to provide preventative medical treatment before a claim is accepted;
  • allowing WorkSafeBC to correct or acknowledge obvious errors of a decision past the 75-day time limit for reconsideration;
  • giving WorkSafeBC the powers of search and seizure for workplace investigations (through judge-granted warrants) through the Workers’ Compensation Act, rather than the Offence Act. This could include: the ability to collect samples, search hard drives, seize or compel documents and obtain tele-warrants. This will provide WorkSafeBC with the power to investigate workplace safety infractions when prosecution is being considered; and
  • establishing liability on corporate directors for unpaid premiums or other amounts owed to WorkSafeBC.

In addition, the government is seeking to fast track the effective date of presumptions, if established by WorkSafeBC board of directors, for occupational diseases caused by viral pathogens. This includes COVID-19 and any future pandemic.  The presumption would simplify the process for workers who make a workers’ compensation claim if they contract viruses on the job. This essentially creates a system where those people that are perceived to be at higher risk of contracting COVID-19 at work will have their claims automatically accepted.

Through the Employers’ Forum, many employers have strongly opposed the change in “presumptions” that a COVID-19 infection came from exposure at work. In a submission to WorkSafeBC, the Employers’ Forum states:

Insufficient scientific information and the nature of this pandemic means the workers’ compensation system can only effectively address claims on a case-by-case basis, much as public health officials are currently doing with the contact tracing process…This pandemic – like all pandemics – is a public health crisis, not a workplace health crisis.

In a system funded solely by employers, all of these changes will represent an increase in costs to employers through potentially more accepted claims, and greater costs of claims particularly for higher wage earners. This creates an additional financial and administrative burden on employers who are already facing loss of revenue due to COVID-19.

On the bright side, better WorkSafeBC coverage for high income earners may assist in keeping disability insurance premiums in check for those employers providing that benefit.

On January 21, 2014, Mr. and Ms. Schellenberg suffered losses when a building on their property was damaged by a fire. They submitted a claim to their insurer, Wawanesa Mutual Insurance Company (“Wawanesa”). Wawanesa denied the claim on the basis that the insurance policy was voided because the Schellenbergs’ failed to inform Wawanesa of a material change in risk, being the construction of a licensed marijuana grow operation and related upgrades. The Schellenbergs brought a claim against Wawanesa for failing to make payment further to the policy coverage and against Hub International Canada West ULC (“HUB”), the insurance broker, for failing to secure adequate coverage.

At trial, the Schellenbergs were unsuccessful and they brought an appeal. That reasons from that appeal were recently published in Schellenberg v. Wawanesa Mutual Insurance Company, 2020 BCCA 22 (CanLII) and are a useful basis for discussion of some denial of coverage issues that might arise as a result of “material changes” for items covered by an insurance policy.

In the case Hub provided an annual renewal package to the Schellenbergs which included information about what the insurer considered a material change. The document defined a material change as “…something important enough to change the original agreement between the insurance company and the policyholder…” and provided the following examples of material changes:

  • starting a home-based business/farm use;
  • using an auxiliary wood heat source without the insurers’ knowledge;
  • renovations or alterations to the building; and
  • changes in occupancy.

The Schellenbergs denied reviewing the annual renewal package information.

The Court of Appeal noted s. 29 of the Insurance Act, R.S.B.C. 2012, c. 1 which sets out certain statutory conditions deemed to be part of every insurance contract. Condition four of those conditions includes the statutory definition of a material change which is as follows:

4.(1) The insured must promptly give notice in writing to the insurer or its agent of a change that is

(a) material to the risk, and

(b) within the control and knowledge of the insured.

(2) If an insurer or its agent is not promptly notified of a change under subparagraph (1) of this condition, the contract is void as to the part affected by the change.

The Court of appeal cited Henwood v. Prudential Insurance Co. of America, 1967 CanLII 17 (SCC), [1967] S.C.R. 720 at 726–727 for the common law definition of a material change which is: “ A change material to the risk is one that if disclosed would have caused a reasonable insurer to decline the risk or stipulate a higher premium.”

Wawanesa successfully argued at trial that the Schellenbergs’ policy was voided as a result of (1) there being a change material to risk; (2) the change being within the Schellenbergs’ control; (3) the Shcellenbergs having knowledge of the change and (4) the Schellenbergs did not notify Wawanesa or Hub of the change.

More specifically, the Court of Appeal noted the trial judge’s reasons which found that the Schellenbergs:

  • knew they were obliged to tell Hub or Wawanesa about significant changes to their property or its use;
  • did not inform Hub or Wawanesa about the grow operation or electrical upgrades related to it, took some time to plan and execute the upgrades including obtaining related licencing;
  • had multiple occasions to inform Hub or Wawanesa about the upgrades;
  • were alerted to the fact that the upgrades could be material because of the annual renewal documents; and
  • knew or ought to have known that the presence of a grow operation would have been relevant to the consideration of their insurance;

all of which lead the trial judge to conclude that the Schellenbergs misled Hub by failing to disclose the facility where the grow operation occurred and the operation itself.

The Court of Appeal noted authorities including Marche v. Halifax Insurance Co., 2005 SCC 6 which clearly reject the requirement for the insurer to causally tie the material non-disclosure to the loss suffered in order to void a policy. In other words, it does not matter if the material thing an insured does not tell its insurer about caused or is related to a loss, the simple act of non-disclosure is enough to potentially void a policy.

With respect to the claim against Hub, the trial judge and Court of Appeal noted that a broker’s duty of care is to provide advice to a customer about the coverage available to meet the customer’s needs, including gaps in coverage and how to protect against such gaps (citing Beck v. Johnston, Meier Insurance Agencies Ltd., 2011 BCCA 250, aff’g 2010 BCSC 719). The trial judge found that, in the circumstances, Hub had no reason to make inquiries as to whether the Schellenbergs upgraded their electrical system or started a marijuana grow operation nor necessarily any obligation to do so. Further, there were findings that the Schellenbergs did not volunteer any information which would have elicited such inquiries or intend to be forthright if specific inquiries about the grow operation had been made.

The Court of Appeal upheld the trial court’s findings and further noted that no expert evidence was submitted by the Schellenbergs to support the notion that Hub’s duty of care as a brokerage included undertaking an inquiry into whether the Schellenbergs upgraded their electrical system or started a marijuana grow operation.

As such, the Court of Appeal upheld the denial of the claims against Wawanesa and Hub.

Schellenberg v. Wawanesa Mutual Insurance Company is a reminder that insurance policies, while generally being interpreted generously in favour of the insured, are still dependent on an insured making full, frank and proper disclosure of those facts which may be material  to the policy and to advise their insurer or broker of any material changes in the underlying risks of the policy when such changes occur. Failure to provide proper disclosure can void a policy from the moment of the failure to provide such disclosure. It is far better for insureds to provide proper disclosure and to explore additional, different or alternative insurance coverage rather than to have their policy voided in its entirety.

Schellenberg v. Wawanesa Mutual Insurance Company can also serve as a reminder that insurers are looking for any way to avoid making payment under their policies. Insureds should not simply accept an insurer’s declaration that a policy has been voided or denied for an alleged failure to disclose material facts or material changes without careful consideration of whether such a position is solidly grounded in fact and law. Similarly, insureds should also consider whether any alleged failure to disclose material facts or material changes resulted from their own conduct or if such alleged failures resulted from their broker failing to properly record such information from an insured or communicate such information to the insurer.

If an insured finds themselves being denied coverage for an allegation of a failure to disclose material facts or material changes, legal advice should be sought on how to proceed next.

For additional information related the issues covered in this article, please consider my previous articles:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in several issues related to denials of insurance coverage. 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.

Many employers have been worried about the status of their employees who are still on temporary layoff. The original permitted layoff duration was 13 weeks. It was then extended to 16 weeks until June 25, 2020 at which time the time period was extended again to 24 weeks until August 30, 2020.

This is good news for employers assessing their potential exposure to severance pay claims of employees.

A word of caution though, as common law lay-offs can be considered to be a constructive dismissal no matter what the legislation provides. While the provinces approach to what a permissible temporary lay-off is, there is no guarantee the courts will find that COVID-19 caused temporary layoffs (of whatever duration) are not constructive dismissals. We feel that the Courts will likely provide considerable leeway to employers rights to layoff but we will have to wait and see to be sure.

Childcare is one of the most difficult areas to navigate for employers during the COVID-19 pandemic. Schools and daycares were closed forcing many employees to balance working from home with childcare obligations. As restrictions gradually ease, businesses are ramping up and employees are returning to the physical workplace. In some instances, employers are facing resistance from employees who advise that they cannot return to work on account of childcare obligations. Employers must tread carefully when faced with such a situation.

The British Columbia Human Rights Code prohibits discrimination on the basis of, amongst other things, physical disability and family status. The British Columbia Human Rights Commissioner confirmed that, in her opinion, the British Columbia Human Rights Code will apply to individuals who must care for children due to school and childcare closures. As a result, employers must take steps to accommodate employees who need time away from work to care for children up to the point of undue hardship. Undue hardship is contextual but may be established where the accommodation is inordinately expensive or creates a health and safety risk. In short, employers should be careful when disciplining employees unable to return to work due to childcare options.

All that said, employee rights are not unfettered. Employees must engage in the accommodation process. This means that employees should look for alternative childcare if they are unable to attend work due to childcare or school closures. Although not a COVID-19-related case, the British Columbia Human Rights Tribunal recently confirmed in Ziegler v. Pacific Blue Cross (No. 2), 2020 BCHRT 125, that parents must “explore the availability of [alternative] day care options that would meet [the parent’s] child’s daycare needs” as part of the accommodation process.

Employers will also want to be aware that (as previously discussed here) the Employment Standards Act was recently amended to include job-leave protections for individuals who are away from work due to COVID-19. This new leave expressly covers employees who “need to provide care to their minor child or a dependent adult who is their child or former foster child for a reason related to COVID-19, including a school, daycare or similar facility closure.”

Employers should exercise caution when disciplining or terminating an employee given the above-noted protections. We see childcare protections becoming increasingly important moving forward. Sniffles, sneezes and coughs will arrive alongside the cold and flu season. Most childcare facilities have a strict rule prohibiting children from attending while displaying any symptoms of an illness. Childcare facilities are diligently following these rules as part of their occupational health and safety obligations arising from COVID-19. These rules will result in many children being unable to attend daycare come cold and flu season forcing parents to stay home with their children. Employers are wise to start to put a plan in place to identify how they will deal with these absences in the Fall and Winter.

This topic is substantial. This article only touches on one of the issues. Please note that there are potentially numerous tax issues on death and it is very important to discuss these implications with a lawyer and an accountant.

One of the first issues that I frequently see is the different types of property being gifted to say, adult children, on a parent’s death.  It is fundamental to take into account the different tax treatment of different assets because, whilst trying to be “fair”, a parent can actually be creating an injustice unknowingly.

A recurrent and simple example of this is a parent with two children decides to give one child their “estate” (which usually contains the principal residence only and some minimal cash – which seems right for that one child) meanwhile designating the other child as the beneficiary of their RRSP, which flows by beneficiary designation outside the estate. The parent believes this to be not only fair, but “equal” as those two assets are of similar value. However, it can be grossly unfair because the parent’s estate will bear the burden of the tax on the value of the RRSP proceeds, not the child who is inheriting them, and the child inheriting the “residue of the estate” may end up with far less value than the child inheriting the RRSP, because of the tax burden that is payable by the parent’s estate. This is obviously contrary to the parent’s wishes. The parent was simply trying to be “fair” but has created a very unequal result.

Legal and accounting advice during your estate planning is imperative.


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 COVID-19 virus has created uncertainty in the financing for many construction projects. The virus’s impact has caused some lenders to reassess project viability and, in some instances, withdraw financing before or after construction has commenced. Such interruptions create uncertainty for everyone involved in the project. Below, we have set out some considerations for those involved in construction projects affected by financing issues.

From the Owner’s Perspective

  • The owner’s facility agreement may require the owner to provide information about the impact of the pandemic on the project. Owners should review their agreements to confirm the extent of those obligations and ensure compliance to avoid problems.
  • Most construction contracts contain clauses addressing delay, suspension or termination upon the occurrence of prescribed events. The owner should review these provisions and give all notices required. The extent to which the owner may be responsible to compensate the contractor may change depending upon whether work is delayed, suspended or terminated, so the owner should review these clauses and take advantage of the issuance of the most favourable notice or combination of notices possible.
  • Owners should be transparent about the reason for the delay or suspension of work. Under the Builders Lien Act, S.B.C. 1997, 45, “abandonment” of a project is deemed to occur when there has been no “work” done in connection with the project for 30 days. The presumption of abandonment may be rebutted by proof of an intention not to abandon. Assuming the owner wishes to proceed, it should communicate clearly to those involved in the project, in writing, about the reason for the suspension of work and confirm it has no intention to abandon the project. Otherwise, those involved in the project may become skittish and lien the project prematurely and further complicate financing efforts.
  • The owner’s contract may require the owner to notify the contractor of any material changes in the owner’s financial arrangements to fulfill the owner’s obligations under the contract. This requirement appears in many commonly used “CCDC” construction contracts. The owner’s failure to communicate such changes may constitute events of default under the contract and justify termination by the contractor.

From the contractor’s perspective:

  • The contract between owner and contractor may authorize the contractor to request financial information from the owner. The contractor should consider asking for such information and assess its ability to require this information from the owner under the contract. The failure of an owner to respond within an appropriate time frame may in and of itself constitute a breach of the agreement entitling the contractor to damages. For example, GC 7.2.5 of the commonly used CCDC 2 2008 Stipulated Price Subcontract entitles a contractor to be paid for all work performed including reasonable profit and other consequential damages if the contractor terminates its contract with the owner due to the owner’s failure to provide financial information.
  • Section 41 of the Builders Lien Act gives a lien holder (meaning someone entitled to lien the Project) or beneficiary of a trust under the Builders Lien Act a right to demand information from the owner regarding the particulars of:

    • the head contract and state of accounts between the owner and the head contractor;
    • the holdback account; and
    • the particulars of any labour and material payment bond posted with the owner by a contractor above the demanding party in the contractual hierarchy.

The owner’s failure to provide such information within 10 days of receipt of the demand entitles the demanding party to apply to court for production of the requested documents and seek costs of such an application against the owner.

  • The contractor’s entitlement to compensation is distinct from its ability to recover compensation. The pandemic is broadly affecting the construction industry and the economy, generally. It’s unlikely that most owners would make voluntary, timely payments in response to contractors’ claims for pandemic-related compensation. While contractors should do everything required by the contract to maximize their entitlement to compensation, they should also not have unrealistic expectations about obtaining immediate financial relief.

As was discussed in my previous article, Property, Parties, Price – How Far the Court Will Go to Insert the 3 P’s of Real Estate into a Contract, it is critical that parties to a contract of purchase and sale for real property take the time to properly document the terms of their contract and ensure that they have a clear and enforceable contract. Further, s. 59 of the Law and Equity Act (“s. 59”) further requires a contract of purchase and sale for real property to be in writing except in specific circumstances.

Whether a contract for purchase and sale was formed or if there were circumstances for a non-written contract for the purchase and sale of real property falling under the exceptions in s. 59 were at the heart of the dispute in the recent case 0827857 B.C. LTD v DNR Towing Inc., 2020 BCSC 717 (CanLII).

In the case 0827857 B.C. Ltd. (“0827857”) engaged in discussions with DNR Towing Inc. (“DNR”) to purchase its assets, including a specific piece of property. No written agreement was entered, but 0827857 took the position that negotiations resulted in an enforceable oral contract including for the sale of the property. DNR opposed this position on the basis that it was mutually understood that no legally binding agreement was in place until one was committed to writing.

In the Court’s analysis, it first made clear that parties agreeing to the 3 P’s of a contract (parties, property, price) did not mean that they had entered into a binding agreement; rather, the court was still required to find an intention to contract as would be clear to a reasonable, outside observer. On this reasoning, it rejected evidence from 0827857’s principal on what he understood was agreed to and considered what a reasonable objective observing considering all the circumstances would understand the parties to have agreed to or not.

The Court held that, considering all the circumstances, that the parties did not intend to be legally bound until they entered a written contract. In part, the court relied on the parties retaining counsel to provide substantial legal advice as to the proposed contract being negotiated and to commit agreed terms to writing.

Having rejected that an oral agreement had been reached, the court rejected 0827857’s claim for performance of the alleged agreement. The Court went on to examine the alternative arguments concerning s. 59 which reads in part:

59 (3) A contract respecting land or a disposition of land is not enforceable unless;

(a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter,

(b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or

(c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed the person’s position that an inequitable result, having regard to both parties’ interests, can be avoided only by enforcing the contract or disposition.

The Court found that with no written contract being created or signed, 0827857 was required to show that DNR did an act or acquiesce to an act done by 0827857 that was consistent with the alleged contract or 0827857 plaintiff changed its position in reliance on the alleged contract.

0827857 relied on some steps to get an environmental audit and to secure financing to establish that it had satisfied the requirements of s. 59, which the Court rejected. Whether on the traditionally more stringent approach or the more flexible approach more recently developing in the common law, the Court was unsatisfied that 0827857’s acts were sufficiently connected with the alleged contract to bring it within the requirements of s. 59.

0827857 B.C. LTD v DNR Towing Inc. again underscores how critical it is for parties to commit any contractual terms to writing. If parties are in the midst of negotiating, they should be clear with each other that no binding agreement has been entered. If dealing with real property, it is especially crucial that any contractual agreement be committed to writing as attempting to prove that such an agreement has been reached by showing that a party did an act or acquiesced to an act done by the other that was consistent with the alleged contract or that a party changed its position in reasonable reliance on an alleged contract would be a time-consuming process that leaves a great deal of discretion to the Court to interpret circumstances.

In short, where parties have the opportunity to remove doubt about the terms of a contract or where they entered one, they should do so and with appropriate legal advice as is prudent or necessary.

For additional information related to parties’ failures to properly negotiate contractual terms and pricing and disputes related to those issues, please consider my previous articles:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including a focus on construction related issues. 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.

On March 17, 2020, Dr. Bonnie Henry, B.C.’s Provincial Health Officer, declared a public health emergency.  The following day, March 18, 2020, Mike Farnworth, Minister of Public Safety and Solicitor General, declared a provincial state of emergency to support a province wide response to the COVID-19 pandemic.  This signaled the closing of many BC business and the resulting layoff of employees.

In an effort to ease the financial hardship on businesses and to keep employees connected with their jobs during the COVID-19 pandemic, the BC government extended the temporary layoff period to 16 weeks for COVID-19 related reasons.

Under the Employment Standards Act (ESA) a temporary layoff longer than 16 weeks in any 20-week period is considered a permanent layoff.  With a permanent layoff, employers are required to provide employees with written working notice of termination and/or pay severance to qualifying employees, based on their length of service.

With many employees being laid off as of March 18, 2020 this brings us to Wednesday July 8, 2020 – 16 weeks after the provincial state of emergency was declared.  On this date, many BC employees will be deemed terminated triggering an employer’s obligation to pay out ESA termination pay based on length of service.  In addition, if 50 or more employees were laid off from one location, this will trigger the ESA group termination pay provisions requiring the employer to pay each employee their regular termination pay based on their length of service, plus group termination pay.

There is a potential exemption from paying termination pay in s. 65(1) (d) of the ESA where an employment contract “is impossible to perform due to an unforeseeable event or circumstance”, (See our article Employment Standards Severance May Not be Required as a Result of COVID-19.  However, with the easing of COVID-19 restrictions, many BC businesses are reopening and recalling some employees therefore this exemption may not apply.  Furthermore, the exemption only applies to severance obligations that arise as a result of the ESA.  Common law and contractual severance obligations may remain.  However, employers may be able to argue frustration of contract if COVID-19 has resulted in curtailment or closure of their operations.

It is also important to note that officers and directors of a corporation need to be aware that s. 96 of the ESA makes each of them personally liable for up to two months’ wages for each employee in connection with individual and group termination pay entitlements. The only way to avoid this potential liability is if the Employer is subjected to insolvency proceedings.

As of June 23, 2020, the province is standing firm on not extending the temporary layoff period beyond the original 16-week stretch that will end in July, but added it is open to discuss possible solutions with business stakeholders.  Other jurisdictions have looked at or already extended the length of permissible temporary layoffs.

Employers should consult with legal advisors if they have layoffs that are approaching 16 weeks in length.

UPDATE – JUNE 25, 2020:  The Province of British Columbia has decided to extend the temporary layoff time period through August after outcry from businesses around the province, including multiple chambers of commerce in the Okanagan.  The 16-week period has been extended to 24 weeks.

Should you have any questions or require legal support, please contact any one of our Employment Team.

The Child Support Guidelines set the benchmark for calculating income for support purposes.  The Guideline’s objectives ensure recipients and payors of support in similar circumstances are treated similarly across Canada.

If a support payor earns foreign income then the income must be converted to Canadian gross income when determining support.  Converting foreign income to Canadian income is not just a straight application of currency exchange rates to gross foreign income.  There are a number of factors to be considered.[1]

For example, if the payor’s foreign tax rate is significantly higher or lower than Canadian tax rates then the Court can adjust the payor’s income to be in accord with Canadian tax rates.  If the foreign tax rate is lower, then the Court can impute additional income to the foreign payor so the payor’s after-tax income is similar to a Canadian payor’s after-tax income in similar circumstances.  If the foreign tax rate is significantly higher, then the Court can reduce the payor’s income to ensure equal footing with a Canadian payor in similar circumstances.

Also, whether or not the payor is entitled to claim a foreign tax credit in Canada must be considered.  Generally, Canadian residents who earn foreign income which is declared and taxed in Canada are allowed a tax credit if they had to pay foreign tax on the same income.  The purpose of the foreign tax credit is to avoid double taxation of the same income.

Whether or not spousal support is paid and its tax treatment is another factor to be considered when determining a foreign payor’s income for support purposes.  If the payor cannot claim a tax deduction for paying periodic spousal support, as allowed in Canada, then an adjustment may be required to bring the foreign payor’s after-tax income in-line with a similar Canadian payor’s after-tax income.  If the foreign payor cannot deduct spousal support payments in their home country it results in a higher amount of after-tax spousal support being paid than required by a Canadian payor.

Lastly, currency exchange rates are a factor.  Generally, the average annual exchange rate is used to ameliorate any widely fluctuating rates.

The usual practice when converting foreign income to Canadian income is to start by converting the foreign gross income to Canadian dollars using an average annual exchange rate, and then deduct the applicable foreign tax rate to calculate the payor’s after tax income in Canadian dollars.  Then determine what gross income is required to result in the same after-tax income at Canadian tax rates.  That is, the after-tax income is grossed-up using Canadian tax rates.

For example, assuming a foreign tax rate of 10%, a Canadian tax rate of 20%, an exchange rate of 1.35, and no available foreign tax credit (i.e. no foreign income declared in Canada) then:

$100 gross foreign income x 1.35 exchange rate = $135 gross Canadian income;

$135 gross Canadian income – 10% foreign tax rate = $121.50 after-tax Canadian income; and

$121.5 after-tax Canadian income + 20% Canadian tax rate = $145.80 gross Canadian income for calculating support.

Expert evidence is not necessary to show tax rates, etc. provided sufficient evidence is presented to allow the Court to perform the necessary mathematical calculations.

Further, it may be necessary to examine the services each government provides its citizens in exchange for their tax dollars.  For example, a country might have a higher tax rate than another, but provides its citizens with services not provided by the first country.  Expert evidence from tax specialists from each country is usually required to determine if extra income should be allocated to a payor because of the tax benefits they receive that are not available to the other spouse or parent.

While it is attractive to approach the conversion of foreign income by a straight application of exchange rates, other factors must be considered such as the foreign tax rates, entitlement to foreign tax credits, tax treatment of spousal support, and exchange rates to ensure dependents in Canada receive support appropriate to Canadian standards.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.


[1] For reference see:  G. (E.B.) v. B. (S.M.), 2016 BCSC 2434, and Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448.

Medical malpractice cases are very complex.

In this series of articles BC and Alberta personal injury and medical malpractice lawyer Angela Price-Stephens describes her top 25 notable medical malpractice cases of her 25-year career to date. Her selection of cases is a representation of the breadth of her experience, the complexity of cases, the twists and turns in the evidence and the dramatic benefit to her clients and their respective families by successfully pursuing their claim with Angela and her team.

Angela has litigated cases across Canada and England and Wales. The names and distinguishing details of the cases referred to in this series of articles have been changed to protect the client. In all cases of settlement for medical malpractice the lawyers for the defendant healthcare providers insist on a confidentiality clause in which the existence of a settlement (payout of money to the former patient, irrespective of whether an admission of liability was made) must remain a secret.

In this seventh article in the series Angela reflects on the case of Eileen who suffered inexplicable prolonged healing and pain from what ought to have been a routine partial hysterectomy.

Eileen was 42 years old at the time of her partial hysterectomy. The surgical procedure was indicated for painful fibroids which had failed to reduce with conservative treatments. Eileen was an accountant and had missed increasing time from work due to her condition which had been diagnosed shortly after the birth of her second child, 12 years earlier.

The surgery was be undertaken laparoscopically. During the surgery there was hemorrhaging, or heavy bleeding, and the procedure was converted to an ‘open’ procedure whereby the abdomen was opened for the surgeon to better visualize the source of the bleeding. It became apparent that the surgeon had damaged the uterine artery and the bowel in two places.  Both were repaired.  During the procedure three large gauzes (or sponges) were left within the pelvic cavity.

The gauzes themselves were not a source of infection but they did provide a perfect nidus, or focus, for infection to grow and develop within Eileen’s body.   When appropriate a surgeon may decide to leave sponges in place as packing with a view to removing it within 24 – 48 hours.  In Eileen’s case there was no such intention.  The sponges were left in the body by mistake.  The sponge count undertaken by the nurses was incorrect and the surgeon had failed to find all sponges before closing the patient.

Eileen made a slow recovery from surgery.  She continued to experience pelvic or abdominal pain which she found hard to describe or pinpoint.  Her surgeon repeatedly reassured her that despite the complications the surgery had ended well and it would take time to recover.  Eileen later gave evidence that she felt her complaints were dismissed and she was not taken seriously.  The lack of explanation for her pain and unwillingness by her doctors to investigate contributed to a major depressive episode.  Six months after surgery her long-term benefits provider ceased payments, despite Eileen’s inability to return to work. Ironically, her doctors opined that it was Eileen’s mental health that was causing her to perceive her pain as more debilitating than it was. The focus was then shifted to treating Eileen’s depression and developing anxiety rather than exploring the source of chronic pain.

Financially at breaking point and on the verge of divorce Eileen had practically given up hope of being pain free.  During discovery Eileen admitted to taking more pain medication than prescribed and ‘enhancing’ the pain medications with alcohol.

Almost three years after the surgery Eileen fell at home, twisting her back. There was evidence she was intoxicated at the time. This fall exacerbated her pain and it was the x-ray targeting her lower back that demonstrated foreign objects within her pelvis.  The sponges were finally removed but the adhesions and scar tissue which had formed remained a source of pain.

A “Never Happen” Event

There are certain events in medicine that simply should never happen.  Or to put it another way, the only way it happens is through negligence – a mistake that falls below the standard expected.  Leaving sponges in a patient is one of those events.

However, even when it is obvious a mistake was made it is still necessary for the injured patient to prove what and how much damage that mistake caused.

In Eileen’s case the doctors’ lawyers argued that there was always a risk adhesions may occur following surgery; there is risk of infection and post-operative chronic pain.  They offset her post-operative pain and disability with the pain and disability of the pre-existing fibroids.

With careful questioning of the doctors at discovery, Angela demonstrated using their own evidence why the sponge count is crucial; what is expected to happen if a sponge (or three) is left in place and the type of pain that can cause.  Using the gynaecologist’s own estimation of success against him, it was confirmed Eileen had an excellent recovery rate from her partial hysterectomy which had been described to her as a ‘routine’ surgery, were it not for the retained sponges.

Blaming the Patient

Unfortunately blaming the patient as means of defence, or deflecting the blame, is not unusual.  Rarely is the patient blamed directly but in Eileen’s claim she was blamed for self-medicating with pain medications and alcohol.  The breakdown of her marriage which had had its challenges prior to the surgery, was partially blamed for her depression which was used as a means to defend the length of time it took for the sponges to be found (the focus of inquiry having moved to her mental health, not physical health). With clear medical evidence and a precise chronology of events, Angela was able to illustrate all of the clinical appointments at which the source of the pain ought to have been investigated, the increasing medications prescribed, the increasing frequency at which the complaints of pain were made, the nature of the pain and the deterioration in Eileen’s ability to cope with life.  Through medical evidence and evidence of friends, family and former colleagues it was clear that the depression and anxiety developed as a result of the chronic pain.

Is the Loss of a Marriage Worth Money?

Eileen’s claim included a sum for loss of her marriage, or the loss of her ability to form and sustain a financially beneficial relationship.  This is a relatively unusual type of claim.  It is based on the recognition that two people living together can share their common expenses and become wealthier in life more readily than someone who lives alone.  It is a challenge to establish that negligent surgery caused, or contributed to, the breakdown of a marriage especially when one considers that almost 1 in 2 marriages fail in any event.  However, in this case Angela was able to establish sufficient evidence from a variety of sources that placed the defendants at risk of a finding the marriage failed due to the negligent surgery and that Eileen’s injuries meant she was unlikely to establish a new permanent relationship.  Angela obtained witness statements and video clips from some of Eileen’s closest friends who testified at the change in personality, levels of anger and irritability and lack of tolerance for her immediate family and loved ones exhibited by Eileen since she developed chronic pain.

Eileen’s claim was resolved for a large sum which included the loss of her lucrative career, her permanent chronic pain and the loss of her ability to form and maintain a financially inter-dependent relationship.

Many of us take it for granted that we can meet with our lawyer in person to discuss and sign our estate planning documents which often include a will, power of attorney and representation agreement. One of the reasons that it is important to consult with a lawyer is that there are strict requirements in terms of how to prepare and sign estate planning documents that differ from province to province. These requirements are there to protect people as these documents reflect very important life decisions and should not be taken lightly.

Due to Covid-19, the BC Government announced a state of emergency on March 18, 2020. The duration of the state of emergency has been extended a number of times already and currently runs until June 9, 2020.

In the current climate with COVID-19 and the state of emergency, meeting with a lawyer to sign estate planning documents can be challenging for many reasons. Some individuals are ill or required to self-isolate. Others are trying to maintain distance and stay away from anyone unless absolutely necessary. Still others cannot get in to see their lawyer as law firms are shut down or operating with limited capacity.

Other provinces such as Ontario and Saskatchewan began taking steps to permit people to sign their estate planning documents without having to meet their lawyer in person. As of May 19, 2020, the BC Government followed suit with two ministerial orders.

Wills

Ministerial Order No. M161 (“M161”) permits individuals to sign their will while connected by videoconference with two witnesses. If signing under M161, at least one of the witnesses must be a lawyer or notary public. It is possible that two of the three people be in the same location while the third one is connected via videoconference. This permits a lawyer to be in an office with a second witness and for the two of them to connect via videoconference to the lawyer’s client who is the will maker. The will must include a statement that says it was signed and witnessed in accordance with M161.

Powers of Attorney

Ministerial Order No. M162 (“M162”) deals with two different documents. The first is powers of attorney. A power of attorney is a document where an individual appoints someone to make their legal and financial decisions. M162 allows individuals to sign their power of attorney by videoconference with their witness. If signing a power of attorney pursuant to M162, the witness must be a lawyer or notary public and the power of attorney must include a statement that it was signed and witnessed in accordance with M162.

Before the person appointed under the power of attorney (the “attorney”) can act, he or she must also sign the power of attorney. If not able to meet in person with a lawyer or notary, the attorney may also follow the same process regarding using videoconference technology to connect with a lawyer or notary public.

What M162 does not address is that in order for a power of attorney to be used to deal with real estate, it must also be signed in accordance with the requirements set out in the Land Title Act. That adds another layer of complexity. Dealing with real estate is a common use under a power of attorney and absent a power of attorney, it can get very complicated and expensive to transfer real estate if one of the owners no longer has mental capacity to sign transfer documents. Given the requirements under the Land Title Act, in order for a power of attorney to be effective to transfer real estate, an additional affidavit must be prepared and signed that meets the requirements set out in section 49 of the Land Title Act. The process required to sign affidavits remotely for use in land title applications is set out in the Land Title and Survey Authority’s Practice Bulleting No. 01-20.

Representation Agreements

The second document that is covered by M162 is representation agreements. A representation agreement is a document where an individual appoints someone to make their personal and health care decisions. M162 allows individuals to sign their representation agreement by videoconference with their witness. If signing a representation agreement pursuant to M162, the witness must be a lawyer or notary public and the representation agreement must include a statement that it was signed and witnessed in accordance with M162.

Before the person appointed under the representation agreement (the “representative”) may act, he or she must sign the representation agreement, but that signature does not need to be witnessed so there is no need to worry about the videoconference rules for the representative.

While the accommodation that the BC Government has made for remote witnessing of wills, powers of attorney and representation agreements is helpful, the signing requirements remain onerous. To ensure that you are compliant, we urge you to consult with your lawyer before making any changes to your estate planning documents. Please also note that the two ministerial orders discussed in this article only remain in force until the state of emergency in BC expired or is cancelled.

We at Pushor Mitchell remain open and available to assist our clients with all of their legal needs, including estate planning. Please reach out if you would like to discuss your estate plan.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

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

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

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

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


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

Medical malpractice cases are very complex.

In this series of articles BC and Alberta personal injury and medical malpractice lawyer Angela Price-Stephens describes her top 25 notable medical malpractice cases of her 25-year career to date. Her selection of cases is a representation of the breadth of her experience, the complexity of cases, the twists and turns in the evidence and the dramatic benefit to her clients and their respective families by successfully pursuing their claim with Angela and her team.

Angela has litigated cases across Canada and England and Wales. The names and distinguishing details of the cases referred to in this series of articles have been changed to protect the client. In all cases of settlement for medical malpractice the lawyers for the defendant healthcare providers insist on a confidentiality clause in which the existence of a settlement (payout of money to the former patient, irrespective of whether an admission of liability was made) must remain a secret.

In the sixth case in this series Angela reviews the case of Ted who had the traumatic, near fatal and life changing event of a missed epidural abscess. The significant delay in diagnosis resulted in quadriplegia and permanent chronic pain.

Ted was a 36-year-old man who had fought drug and alcohol addiction since his young adult years. He had been sexually abused as a child and substance abuse was used to dull his emotional pain. Despite his addictions, Ted had travelled with friends, enjoyed playing his guitar, writing music and in the two years prior to the index events, he had remained clean and sober and was working two part time jobs.

One evening in early Fall, Ted noticed a boil on the back of his neck. He assumed it was a spider bite. He sought medical treatment at the local emergency room a few days later as the boil grew. The emergency room physician lanced the boil and removed what was described as a “cottage cheese” discharge. The wound was swabbed, and the sample sent to the lab for assessment. In the meantime, Ted received his first IV antibiotics before being discharged, to return the next afternoon. He was told he would likely receive five days of IV antibiotics – requiring him to come back to ER five consecutive days. He was given morphine for the pain.

Ted received the second IV antibiotics the following day, and the third the day after. When he returned for the fourth day, he was told that the swab had demonstrated that the infection was ‘MRSA’ and that the antibiotic would be changed. Two days into the change in daily IV antibiotics Ted was feeling much better. He did not return to complete the IV antibiotic treatment. At discovery, Ted admitted that he knew the treatment was not completed.

Ten days after the last IV treatment Ted awoke with severe neck pain that radiated into his right arm. His head was turned to the left side and he could not move his neck or arm due to the severity of the pain. Ted went back to the emergency department. He was examined and a very thorough history was taken by a young resident. Ted disclosed his addiction and sobriety and the recent repeated attendance for and infection and antibiotics. Ted did not report the infection as ‘MRSA’ as he had no understanding of its significance or consequences. The previous ER records were available to the resident, had he decided to look. Following the resident’s detailed assessment, the attending consultant examined Ted. The doctor advised Ted it was likely a muscle strain, gave him some morphine and told Ted to come back ‘if things got worse.’

Ted returned home and dropped into bed. His pain remained severe, but the morphine had taken the edge off which allowed him to sleep. He awoke the next morning in considerably less pain but feeling weak and with little strength. He described the feeling as if he was coming down with the flu. He was relieved the pain had improved. He called his employer to tell them he was ill and would not be in that day. He took the morphine pill he had been given at ER the previous day and slept all day. When he awoke in the early evening Ted panicked to find he could not move his legs. He shouted for help. His friend called 911 and the paramedics arrived shortly thereafter. The clinical records demonstrated gold standard care as he was taken to emergency, comprehensively examined and diagnosed with a very large epidural abscess. Ted was within a few hours of death as the paralysis ascended to his chest, impairing his breathing. He was ventilated for several days and his life hung in the balance.

Ted never regained the use of his legs and was neurologically impaired from T4 down, losing bowel, bladder and sexual function. He lost the strength and power in his arms requiring an electric wheelchair. He was immune compromised, suffered with regular urinary infections and autonomic dysreflexia. Two years later he was still in severe nerve pain that he described as ‘dogs gnawing at this flesh’. He greatly missed playing his guitar and writing music, an activity in which he had found solace during his periods of sobriety.

The MRSA infection in the neck boil had entered the blood stream. The infection settled in the spine and over the following 10 days grew larger pressing against the nerves that innervate the neck and arms. Initially the pressure caused severe pain. As the pressure grew greater it caused paralysis and cut off the feeling, hence the sudden loss of pain and feeling of weakness which first developed in his legs and ascending the spinal column, causing respiratory failure.

When in Doubt, Blame the Patient

There were several factors that the lawyers for the doctors tried to use against Ted.

• his addictions
• his failure to complete the antibiotic treatment
• his failure to return to the hospital when his symptoms worsened

With careful use of expert evidence and preparation for discovery, Angela turned all these factors in favour of the client’s claim.

Ted had been honest about his addictions, disclosing his prior use of drugs and alcohol at every hospital visit. While the defendants tried to use this against him, suggesting he brought this problem on himself, Angela produced evidence that epidural abscesses were more common in the drug addicted population and hence epidural abscess ought to have been included in the original differential diagnosis and excluded by imaging. A simple x-ray at the emergency room when Ted presented with severe pain would likely have shown an abnormality which would have indicated further tests, leading to a timely diagnosis of epidural abscess.

At discovery Angela established that not one of the treating professionals had informed Ted that MRSA was a more serious and harder to treat infection than many infections and that the initial advice of ‘5 days’ of antibiotic treatment only started on the first day of the ‘correct’ or second antibiotic and that given the MRSA infection it may require a longer duration of treatment.

Ted was also honest about admitting he knew he had not completed the antibiotic treatment. Although he originally felt shame with this admission, preparation for discovery taught him to accept that his lack of knowledge was not his fault – he had no reason to know what MRSA was, or how serious it could be. No one had told him. With this preparation, he was able to be forthright in his evidence, without being defensive himself.

With good preparation Ted was also able to explain why he did not return to the hospital: he did not consider the reduction of pain and feeling of weakness to be a ‘worsening’ of his condition. With the benefit of hindsight during his prolonged and painful rehabilitation he realized this was a mistake and his level of guilt had grown out of all proportion. Why had he not returned? He could have avoided this permanent disability.

Just as we cannot judge a doctor’s care with the benefit of hindsight, so we cannot judge the patient’s actions with the benefit of hindsight. Ted had no medical training, and no one had told him what symptoms to look out for. All he knew was that a reduction in pain was a good sign.

This claim was hard fought by the doctors’ lawyers. Even with clear evidence of breach of standard of care and strong evidence on causation (demonstrating an earlier diagnosis would likely have spared Ted from pain and disability) compensation offered was limited. Unbeknown to defense counsel Ted had lapsed back into cocaine use as an escape from the pain and despair. Angela put additional supports in place, changed Ted’s care givers (who could have potentially witnessed the drug use) and found excellent witnesses to speak on Ted’s behalf – including his AA sponsor who is a well-known and successful commercial realtor. By convincing his sponsor and other key witnesses to testify on Ted’s behalf Angela demonstrated that the claim was not going to be bought off for a modest sum – there was good evidence to support Ted having turned his life around before the missed diagnosis.

Ted’s claim was settled for a large sum sufficient to take care of his extraordinary medical needs, house him permanently in a modified home and provide a good income for life.

As the court observed in its recent decision, All Out Contracting Ltd. v Gourlay, 2020 BCSC 481 (CanLII) (“All Out”), construction work begins before the owner(s) and contractor properly define their contractual relationship, if they ever do so. As was the case in All Out, this frequently leads to disputes and litigation as the parties’ differing expectations of the performance and price of the contract cause disputes.

In All Out the contractor gave an estimate for the tear down and replacement of a retaining wall for between $80,000 to $100,000. The estimate was signed and the work commenced. As work progressed, debris and unstable fill were discovered behind the existing wall and additional efforts were required to provide the existing house with vertical support resulting in work being more complicated than originally anticipated. The contractor invoiced ~$206,500 but the owners paid $140,000 and refused to pay any more.

The estimate explicitly provided that “The amount estimated to complete the job is an estimate only and the job is subject to increased costs based on the circumstances on the Premises and the nature of the job…”. The estimate also provided that the contract price would be a set price plus costs with the set contract rate listed under the contract price heading being between $80,000 to $100,000.

Part way through the work, a further estimate of the costs of the work done to date and remaining to be done was prepared by the contractor which totalled ~$162,500. When the work was completed and the ~$206,500 total was presented, the owners refused to pay more than the $140,000 they paid to date and took the position that the original $80,000 to $100,000 estimate capped the amounts the contractor could claim.

Relying on the seminal decision of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 at paras. 57-58, the court began the analysis of what the terms of the contract were gleaned from contract itself as informed by the surrounding circumstances.

The court held that the signed agreement was an estimate only with the parties having created the expectation of a cost-plus contract. Specific terms of the cost-plus arrangement were not agreed to. Having failed to negotiate the formula for compensation, the court was required to turn to the doctrine of quantum meruit, which can be briefly summarized as the notion that a party should receive fair compensation for work that is done in anticipation of compensation.

The court canvassed the law concerning quantum meruit including the notions that the remedy is flexible, contextual and will look to surrounding circumstances to determine what is fair and reasonable compensation, including the signed estimate. The court assessed 7% as a fair profit margin, adjusted claims for costs based on the facts and information before it and assessed that the amount claimable on a quantum meruit basis would be $162,194.50 leaving $22,194.50 plus court costs to be paid by the owners.

All Out underscores the importance of parties entering into clear and mutually understood contractual relations. It was no doubt a stressful and costly exercise to have the court essentially determine for the parties contractual terms they could have negotiated for themselves. It is never prudent to assume that a price or contractual terms can be agreed upon after work has commenced if they cannot be agreed upon prior.

For additional information on failures to properly negotiate contractual terms and pricing and disputes related to those issues, please consider my previous articles:


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including a focus on construction related issues. 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.

As you are no doubt aware, we are in Phase 2 of BC’s restart plan.  It needs to be acknowledged that not everyone is ready to reopen or transition back into the workplace.  Each business and organization is going to be in different stages of readiness and approach reopening differently to ensure the health and safety of their employees and clients.

There is no perfect solution to reopening.  This will be a process of evolution, learning, changing direction and implementing new ways of operating in our physical and virtual spaces.  There are some fundamentals that need to be considered when reopening.

Sick Leave

Sick leave and how employers treat ill employees has changed.  It is now a recommended best practice that employees self-screen each day before coming to work.  Any employee experiencing a combination of the following symptoms should not come to work:

  • Fever
  • Chills
  • Shortness of breath
  • Sore throat
  • Painful swallowing
  • Runny nose
  • Nasal congestion
  • Loss of sense of smell
  • Headache
  • Muscle Aches
  • Fatigue
  • Loss of Appetite

In addition, an employee experiencing a combination of the above symptoms should remain out of the workplace for at least 10 days from the onset of symptoms or until the symptoms resolve, whichever is longer.  During this time, if the employee is feeling well enough, there may be opportunities to have them work from home.

In cases where an employee tests positive for COVID-19, it is recommended that the employee receive a negative test or be cleared by their physician prior to returning to the workplace.

Cleaning and Sanitizing

COVID-19 spreads mainly from person to person through respiratory droplets when an infected person coughs or sneezes.  COVID-19 will naturally die on surfaces within hours to days depending on the surface.  Warmer temperatures and exposure to sunlight will reduce the time it takes for COVID-19 to naturally die.  Cleaning and sanitizing objects and surfaces, especially those that are frequently touched can help prevent the spread of COVID-19.  When cleaning and sanitizing, consider the following:

  • Elevators
  • Washrooms
  • Kitchens
  • Tools
  • Photocopiers
  • Telephones
  • Common Areas and Lunchrooms
  • Reception and waiting areas

Don’t forget that the simplest things, hand washing, not touching your face, and proper cough and sneeze etiquette can have the most significant impact to protect you and those around you.

Physical Distancing

Physical distancing, keeping a minimum of 2 meters (6 feet) away from one another, continues to be of primary significance in controlling the risk of COVID-19 transmission and exposure.  As employees transition back into the workplace the following will need to be considered:

  • What is the maximum number of people you can have attend work and still maintain physical distancing?
  • How will you reconfigure workspaces to maintain appropriate distance between employees, and between employees and clients or visitors?
  • Will you need to install physical barriers between employees and between employees and clients or visitors;
  • How will you schedule appointments, organize waiting areas and address drop-ins to limit contact between employees and clients or visitors?
  • How will you screen employees, clients and visitors for flu-like symptoms and travel outside of Canada?

Masks

Recently, public health officials have recommended the use of masks or face coverings in public settings.  Costco Canada now recommends that all Costco members and guests wear a mask or face covering that covers the mouth and nose, at all times while on Costco premises. Expect to see most retailers and businesses institute similar policies relying on the advice of public health experts.

Public Health officials have also recommended that in certain situations such as transit where you cannot be assured that you’ll be able to guarantee that 2 metre or 6 foot distance, it is strongly recommended to use a facial covering, or mask to prevent transmission of COVID-19 to others and to respect their space.

A cautionary note –  wearing a mask does not offer complete protection and is not a substitute for physical distancing.

These continue to be unprecedented times characterized by an ever-evolving landscape.  Communicating with employees and clients, taking extra measures, and working to keep the workplace clean and sanitized will help reduce anxiety and protect employees and clients.  Every day will be a new normal.

The BC Government has announced its phased approach to reopening businesses.  The BC Government has partnered with WorkSafeBC to develop resources and general guides to assist in the transition from virus-related lockdown to carefully restarting social and commercial life.

Employers are required to develop a reopening plan or transition plan when returning employees to the workplace and restarting operations.  When developing a reopening or transition plan, the goal is to control the risk of COVID-19 exposure and transmission to employees and others in the workplace.

Ill Employees and Clients

The first step in managing the risk is to control access to your workplace.  First and foremost, instituting policies where anyone with symptoms of COVID-19 such as sore throat, fever, sneezing, or coughing are required to self-isolate at home for 10 days from onset of symptoms and not attend the workplace.  This applies equally to employees and clients.  In addition, if an employee is feeling unwell at work, they should be sent home until the extent of their symptoms is clear.

Working from Home

The next step to controlling access to your workplace is continuing to allow employees to work from home where feasible.  It is important to note that as employees continue to work from home and many more may work from home more regularly or transition permanently in the future, employers have a responsibility to ensure the employee’s health and safety.  Employers should consider:

  • Emergency protocols;
  • Safe workplace practices;
  • Ergonomics; and
  • Supervision.

Physical Distancing

Physical distancing, keeping a minimum of 2 meters (six feet) away from one another, continues to be of primary significance in controlling the risk of COVID-19 transmission and exposure.  As employees transition back into the workplace the following will need to be considered:

  • Reconfiguring workspaces to maintain appropriate distance between employees and clients;
  • The installation of physical barriers between employees and clients;
  • Modifying in-person meetings to incorporate the minimum distancing;
  • Incorporating video conferencing and conference calls;
  • Introducing policies with respect to scheduling appointments and waiting areas to limit contact between employees and clients; and
  • Limiting the number of employees in lunchrooms, break rooms and elevators.

Cleaning and Hygiene

An enhanced workplace sanitation, cleaning and hygiene plan and schedule are another step in controlling the risk of COVID-19 exposure and transmission.  It may be possible for a person to get COVID-19 by touching a contaminated surface or object and then touching their own mouth, nose, or eyes.  Cleaning and disinfecting objects and surfaces can help prevent the transmission of COVID-19.  Anything that is touched often or located in a high traffic area needs to be cleaned often.  For example (this is not an exhaustive list):

  • Door handles
  • Countertops
  • Desks
  • Phones
  • Keyboards
  • Toilets
  • Sinks
  • Light Switches
  • Handrails
  • Elevators
  • Tables
  • Chairs
  • Photocopier/Printers
  • Shared Coffee and Water Stations

Communication and Training

It is crucial for workplaces to effectively manage the risk of COVID-19 exposure and transmission that Employers train employees on policies, practices and procedures introduced into the workplace.  Conduct a risk assessment, develop policies and procedures, and communicate regularly with employees.  Employers must also recognize that these are unprecedented times and the situation can change day to day, week to week.  Regular monitoring of the workplace and adjustment of policies and procedures, as Employer’s resume operations or transition employees back into the workplace, will be critical to ensuring a safe workplace for employees and clients.

Be sure to check the Provincial Health Officer Orders, Notices, and Guidance to stay apprised of any changes that apply to your workplace.

Click this link for additional information with respect to Returning to Work and Reopening your business in the wake of COVID-19.

Unprecedented times have called for unprecedented measures.  Now, we see a flicker of light at the end of tunnel as BC has released its plan for easing the restrictions in place to address the spread of COVID-19.

By mid-May the following services are expected to begin reopening:

  • Restoration of health services including elective surgeries, dentistry, physiotherapy, registered massage therapy, chiropractors, physical therapy, and speech therapy.
  • The retail sector;
  • Hair salons, barbers, and other personal service establishments;
  • In-person counselling;
  • Restaurants, cafes, pubs, as long as there are sufficient distancing measures;
  • Museums, art galleries, libraries;
  • Office-based worksites;
  • Recreation and sports;
  • Parks, beaches, and outdoor spaces;
  • Transit services; and
  • Childcare.

With more businesses reopening and employees transitioning back into the workplace from working at home, some employees are anxious about going back to work.  They are worried their health could be at risk and wondering if they have any rights not to return.

There really is not a choice.  If the workplace is safe, the employee must go back to work.

As long as the employer has met the safety requirements and precautions that the provincial health authorities and WorkSafeBC have put forward, the employee is required to return.

That notion that many employees have that they can simply decide not to come into work is incorrect.

In cases where the workplace is safe and employers have implemented specific guidelines for keeping staff and clients safe, if an employee chooses not to go to work, the employer will be well within their rights to consider that a form of misconduct or a resignation.  As a result, the employee may lose their job and any benefit they are receiving from the government.

Employees should ask questions about the protections that will be provided.  Common protections include frequent cleaning, physical distancing measures, barriers and personal protective equipment, and reminding clients not to come in for services when sick and clear policies about not attending work when displaying symptoms of illness.

There is a formal process for an employee to refuse unsafe work.

  1. The employee must immediately report the unsafe condition to the employer.
    • The employer must investigate the report and either remedy the unsafe condition or determine that the report is not valid.
  2. If this does not resolve the matter, the employer must further investigate with:
    • An employee representative of the joint health and safety committee; or
    • An employee selected by the union; or
    • If there is no union and no joint health a safety committee, an employee selected by the employee making the report.
  3. If this does not resolve the matter, the employer and the employee must notify WorkSafeBC who will investigate the matter and determine if the report is valid or if the employer is required to take necessary steps to remedy the unsafe condition. The report by the WorkSafeBC investigator is binding on both the Employer and the employee.

During the process, the employee should be assigned temporary alternative work (i.e. working from home) until the matter is resolved.

One question that arises is, as an employer, can I refuse to take back an employee who has been diagnosed with COVID-19?  The short answer is no.  The current understanding of COVID-19 is that if an individual has been tested and diagnosed with COVID-19, fully recovers and tests negative, they are free of the virus and not a risk to transmit the disease to others.  In refusing to take back the employee, the employer is terminating the employment relationship.  In addition, to the extent possible, the employer must protect the identity of any employee that contracts COVID-19.

The government has said that different sectors will be responsible for preparing and submitting industry-specific guidelines for keeping employees and clients safe, with support from WorkSafeBC.  Individual businesses will also have to prove they can implement those guidelines before reopening.  This will include written policies and procedures, catered to the specific business, aimed at reducing the risk of transmission of COVID-19.  What is required in an office environment will be very different than what is required in a restaurant.

We are on the horizon of the new normal.

The British Columbia government recently announced that employees may not be entitled to notice of termination or termination pay pursuant to the British Columbia Employment Standards Act (“ESA”) if their employment is terminated as a result of COVID-19.

There are three general sources of an employer’s obligation to provide notice of termination or severance to an employee: employment standards legislation, the common law and an employment contract. The amount of notice or “severance” (known as termination pay) owed pursuant to employment standards legislation is set out in is set out in sections 63 and 64 of the ESA. Section 65 of the ESA contains a list of exceptions to an employer’s obligation to provide notice or termination pay. It includes an exception where an employment contract is impossible to perform due to an unforeseeable event or circumstance.

The Employment Standards Branch confirmed that this exception applies to terminations resulting from COVID-19, and provided the following guidance:

If a business closure or staffing reduction is directly related to COVID-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.

This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to COVID-19 or if the employee’s work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.

The section 65 exception will likely be interpreted narrowly. It requires an employer to demonstrate that the employee’s work could not be done as a result of COVID-19.

While this is good news for employers, the exception only applies to severance obligations that arise as a result of the ESA. Common law and contractual severance obligations remain. However, it is possible that the courts will apply a similar test when determining whether an employment agreement has been frustrated.

One of the challenges in negligent construction disputes is that plaintiffs often start litigation only knowing something is wrong that needs to be fixed, but not necessarily knowing what the extent of the issues are, who is responsible for the issues and how much the issues will cost to fix. Out of an abundance of caution, plaintiffs name everyone and use the time they are in litigation to gather more evidence and the litigation process to obtain further evidence to clarify liability issues. Defendants, for their part, will name any other party they can attempt to put some or all of the liability onto. Winnowing the parties involved, the issues in dispute and the evidence that may need to be considered should always be the goal of all parties involved.

The recent case of Perrick v RJS Electrical Contracting Ltd., 2020 BCSC 211 (CanLII) is illustrative of how, after some evidence gathering, the court can cut through the issues in dispute and arrive at a determination of liability and a quantification of damages.

In the case the Plaintiffs hired RJS Electrical Contracting Ltd. (“RJS”) to construct a luxury home for their use as a rental and vacation property. Flooding occurred at the home shortly before occupancy resulting in extensive damage and loss of rental income. It was determined that the water entered the house through an electrical conduit that was not properly sealed before installation of a charging station occurred. The Plaintiffs sued RJS and Hemstreet Contracting Ltd. (“Hemstreet”), the party that did site preparation, for damages.

RJS brought in other third parties it claimed should share some or all of the blame including Hemstreet and Tall Oaks Contracting Ltd. (“Tall Oaks”), who acted as general contracting for the beginning of the build.

The court weighed evidence about the cause of failure to properly seal the electrical conduit and found it most probable that RJS’ employee failed to seal the electrical conduit. The court found that both the employee and his supervisor ought to have known that failing to seal the electrical conduit risked flooding.

The court rejected the argument that Hemstreet could bear any liability since it simply dug the trench where the electrical conduit was laid and did so under RJS’ supervision. The court rejected that Tall Oaks was responsible for work completed after it finished its part of the build. Lastly, the court rejected the argument that that Plaintiffs bore any liability for failing to properly supervise RJS once they no longer had the general contractor, Tall Oaks, acting. On the last point, the Court stated:

RJS offered no authority for the proposition that a negligent contractor may attribute fault to the owner for failing to supervise the contractor. I think that the proposition is doubtful. In any event, RJS does not point to anything in particular that [the Plaintiff] did or failed to do that would have prevented the loss in this case. [The Plaintiff’s] evidence is that he was unaware of the manner in which the conduit was installed until the flooding occurred, and there is no evidence to suggest that he ought to have paid close attention to the installation.

Having found RJS to be solely responsible for the damages suffered the court went on to the assessment of those damages. The court balanced three estimates for the future costs of repair work against an expert report produced by RJS which suggested that such estimates included contingencies. It found that “The plaintiffs, who have suffered loss and damage resulting from RJS’s negligence, should not bear a significant risk of being undercompensated for the repair costs they will incur.” and only modestly reduced the upper range of the potential costs to the plaintiffs.

The plaintiffs did not produce any expert evidence on lost rental income and their rough numbers did not include negative contingencies. In assessing the lost opportunity of rental income, the court held that the legal framework for such losses was established in several cases[1] and included as follows:

  1. the court must find there was a real possibility that an opportunity was lost; and
  2. the court must assess the positive and negative contingencies that affect the lost opportunity.

The court fixed lost rental income at a substantial amount, but significantly reduced from the amount sought.

The court found that there was insufficient evidence to establish the claim for lost value of the house.

The court accepted that the plaintiffs provided incomplete evidence of their damages, but “put their best foot forward”. It did offer its thoughts that perhaps a conventional trial with better evidence could have supported a more precise damage award.

Perrick v RJS Electrical Contracting Ltd. is illustrative of how, even where significant damages are involved, the court is not afraid of exacting some “rough justice” to arrive at a balanced and considered outcome. The court was left with little doubt that RJS was the right party and it had enough evidence before it to quantify damages. The court removed unnecessary parties from the judgment effectively and made a clear judgment as to who was responsible for the issues. The case stands as a good blueprint for pursuing a negligent construction claim as well as pointing out areas where the plaintiffs’ claims for damages could have been improved.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including a focus on construction related issues. 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.
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[1] Greybriar Investments Ltd. v. Davis & Co. (1990), 1990 CanLII 1572 (BC SC), 46 B.C.L.R. (2d) 164 (S.C.) at 193, aff’d (1992), 1992 CanLII 1838 (BC CA), 72 B.C.L.R. (2d) 190 (C.A.); Zoic Studios B.C. Inc. v. Gannon2015 BCCA 334 at para. 78Smithies Holdings Inc. v. RCV Holdings Ltd.2019 BCSC 802 at paras. 82-83

Bryan Fitzpatrick interviewed by Global News on spitting and coughing and the definition of assault in the time of COVID-19. See story here: When Is Spitting An Assault?

In a world full of social media, online banking and cyber-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 Real Estate and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

In our March edition of our Legal Alert, I wrote about the new disclosure requirements for BC companies to provide information regarding their beneficial ownership and control. My original article can be found here. The date by which BC Companies must comply with these new disclosure requirements has now been extended from May 1, 2020 to October 1, 2020.

We will be reaching out to all BC companies that have Pushor Mitchell as their Registered and Records office closer to the October 1 date.

If you have a BC company and wish to discuss your new Transparency Register requirements, please feel free to contact us.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

All British Columbia and federal corporations in Canada are required to complete annual filings with their respective corporate registry. Typically, both British Columbia and federal corporations must submit their annual filings within two months following the anniversary date of their incorporation.

In light of the challenges posed by COVID-19, federal corporations (along with federally incorporated not-for-profit organizations and cooperatives) have been granted extra time such that if the anniversary date of incorporation falls between February 1 and June 30, those entities now have until September 30, 2020 to file their annual return.

As of April 27, 2020, the provincial government has not yet granted a similar extension for filing of annual reports for British Columbia corporations.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

I have received numerous questions from clients worried about how and when to hold their annual general meetings. Up until the end of April 2020, if the constating documents (the Articles for a British Columbia corporation or the Bylaws for a British Columbia society) do not permit virtual meetings, then meetings had to occur in person.

As of April 21, 2019, pursuant to the Emergency Program Act and Ministerial Order No. M116, all British Columbia corporations incorporated under the BC Business Corporations Act, all societies incorporated under the BC Societies Act, and all cooperative associations incorporated under the BC Cooperative Association Act, are entitled to hold meetings and have their shareholders, directors and members, as the case may be, participate in and vote at meetings by telephone or other communication medium such as videoconference.

Of course, this is subject to certain restrictions to ensure meetings proceed smoothly. The restrictions are:

  1. all participants in the meeting must be able to communicate with each other and where applicable must be able to vote;
  2. if it is a meeting where notice must be provided the notice must still be provided and must include instructions for attending at or participating in the meeting by whatever communications medium is chosen, including how to vote at the meeting (this includes complying with the minimum number of days’ advance notice as set out in a corporation’s Articles for a shareholders’ meeting and a minimum of 14 days’ notice of a general members’ meeting as required under the Societies Act or such longer notice period as provided in the society’s Bylaws);
  3. the person responsible for holding the meeting must facilitate the use of the medium used to communicate (i.e. the telephone or videoconference technology);

There is nothing requiring a BC corporation, society or cooperative association to take active steps to facilitate the telephone or virtual meeting. However, if they choose to go down that path, the meeting can be held exclusively by telephone or videoconference or it may be a hybrid approach where some people are at the same physical location while others participate by phone or videoconference.

Note that the provisions permitting virtual meetings for all BC corporations, societies and cooperative associations will come to an end when the declaration of the state of emergency under the Emergency Management Act expires or is cancelled. At that point, the provisions in the constating documents will once again govern the ability to hold virtual meetings.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

In Burke v Burke, 2019 BCSC 383 (Burke), the British Columbia Supreme Court reviewed the applicable law and procedures concerning the removal and replacement of an executor and trustee on the application of a beneficiary, under the will of the deceased. The court confirmed the test to be applied on such applications, as summarized by the Supreme Court of Ontario in Johnson v Lanka, 2010 ONSC 4124 (Johnson). When deciding whether to remove an estate trustee, the court will not likely, nor lightly, interfere with the testator’s choice. There must be strong evidence that the trustee’s acts or omissions are of such a nature as to endanger the administration of the trust, and the court’s primary consideration is the welfare of the beneficiaries.

The Applicable Law

Wills, Estates and Succession Act, SBC 2009, c 13:

131     If a person dies leaving a will, and the executor named in the will renounces executorship or is unable or unwilling to apply for a grant of probate, or if no executor is named in the will, the court may grant administration with will annexed to one or more of the following persons in the following order of priority:

  • a beneficiary who applies having the consent of the beneficiaries representing a majority in interest of the estate, including the applicant;
  • a beneficiary who applies not having the consent of the beneficiaries representing a majority in interest of the estate;
  • any other person the court considers appropriate to appoint, including, without limitation, and subject to the Public Guardian and Trustee’s consent, the Public Guardian and Trustee.

132 (1)  Despite sections 130 and 131, the court may appoint as administrator of an estate any person the court considers appropriate if, because of special circumstances, the court considers it appropriate to do so.

(2) The appointment of an administrator under subsection (1) may be

(a)  conditional or unconditional, and

(b)  made for general, special or limited purposes.

Trustee Act, RSBC 1996, c 464:

31    If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees.

Principles to Consider

In Johnson at paragraph 15, the Court summarized the principles that guide the Court’s discretion to remove estate trustees.

(1) the court will not lightly interfere with the testator’s choice of estate trustee;

(2) clear evidence of necessity is required;

(3) the courts main consideration is the welfare of the beneficiaries; and

(4) the estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the trust.

Applying the Law and Legal Principles

In Burke, the petitioner, a granddaughter of the deceased, applied to have her sister removed as executor of the estate and be replaced by a trust company. Their mother, daughter of the deceased and also a beneficiary under the will, supported the application, while the executor opposed it. The application was brought under sections 131(c) and 132 of the Wills, Estates and Succession Act, section 31 of the Trustee Act and the inherent jurisdiction of the court.

The court found that the executor of the deceased’s estate had a strong prima facie case that the testator intended for her to be the executor, therefore the court should not interfere with that preference lightly, unless there is no other reasonable alternative available. While the petitioner argued that there was a potential conflict of interest which could interfere with the administration of the estate, the court did not find it sufficient to justify the removal of the executor and there were reasonable alternatives to minimize, and even nullify, the potential conflict.


Angela Price-Stephens is an English and Canadian lawyer who has 25 years’ experience as a litigator of complex and challenging claims. Whether you are disinherited, a personal representative contemplating litigation or facing a claim brought by a beneficiary, Angela is here to provide cost effective, practical legal advice.

For more information on this article, or for confidential discussion of your claim, contact Angela Price-Stephens at 250 869 1124, or send her a confidential email at price-stephens@pushormichell.com.

The Federal Government announced today a new Canada Emergency Commercial Rent Assistance (CECRA) program intended to assist businesses that have been impacted by the COVID-19 Global Pandemic. CECRA will be provided in collaboration with Provincial Governments and is intended to provide relief to help businesses cover their rents for April, May and June.

The full details of the CECRA program have yet to be released but the following is what the Federal Government has outlined to date:

  • Commercial landlords will be offered forgivable loans to cover 50 percent of three-monthly rent payments;
  • To be eligible, tenants must be paying less than $50,000.00 in rent and have temporarily ceased operations or experienced at least a 70 percent drop in pre COVID-19 revenues;
  • CECRA is available to corporations as well as non-profit and charitable organizations;
  • The Federal Government loan will be forgiven if eligible landlords reduce the rent charged to eligible tenants by at least 75 percent for the three corresponding months under a rent forgiveness agreement;
  • The rent forgiveness agreement will include a term not to evict the tenant while the agreement is in place;
  • The tenant will cover the remainder of the rent, up to 25 percent;
  • The Canada Mortgage and Housing Corporation will administer the CECRA;
  • The intention is for CECRA to be operational by mid-May; and
  • Participating commercial property managers who lower their rents now for tenants will be paid retroactively for April and May.

In effect, if a landlord reduces rent to 25% of the contracted rent, for three months the rent for qualifying leases will be born 25% by the tenant, 50% by the Government and 25% by the landlord.

It is not yet clear whether this plan will impact existing abatement or deferral arrangements and whether the relief applies to lease payments only or also to additional obligations such as triple net charges.

Today’s announcement provides valuable relief to businesses that have experienced significant challenges as a result of COVID-19. We will provide additional information on the CECRA program as it becomes available.

Justin Dalton practices civil and commercial litigation in the firm’s litigation practice group along with Partner Alfred Kempf who also practices in civil and commercial litigation.

For more information on legal issues related to the COVID 19 pandemic go to https://www.pushormitchell.com/covid-19/ and subscribe for updates.

The Office of the Superintendent of Real Estate announced the release of Policy Statement 17, which temporarily amends Policy Statement 5 and Policy Statement 6 in relation to the nine month early marketing period. Policy Statement 17 allows for:

  • A three month extension to the nine month early marketing deadlines in both Policy Statement 5 and Policy Statement 6.
  • There is no change to the right of a purchaser to cancel the Purchase Agreement if a Building Permit and satisfactory financing are not obtained within 12 months of filing the Disclosure Statement.
  • For a Disclosure Statement filed between June 17, 2019 and April 16, 2020, an amendment to the Disclosure Statement must be filed with the Office of the Superintendent of Real Estate to note the extension of the early marketing timelines.
  • For a Disclosure Statement filed between April 17, 2020 and July 17, 2020, the information about the extended dates must be included in the Disclosure Statement.
  • There is no change to the procedures for distributing an Amendment to the Disclosure Statement.

These changes will give some relief to the developers who have had a challenge getting their presales because of COVID-19 and the social distancing requirements.

For more information on the changes included in Policy Statement 17, see the Information Bulletin: REDMA 20-01.

At its core, a personal injury claim involves assessing the difference between an injured claimant’s reality, and what their reality would have been had a car accident, or other injury-causing event, had not happened.

The COVID-19 pandemic has altered the course of our collective realities, and in this Legal Alert we’ll explain its potential impact on those with existing and new personal injury claims.

Health Care Treatments

A personal injury claimant has a duty to mitigate their damages, which means you must take reasonable steps to minimize your loss. If you don’t, the court (or an adjuster) can reduce the amount of compensation owing to account for your failure to mitigate. If your doctor recommends a rehabilitation program, mental health counselling, or other therapies such as chiropractic care or physiotherapy, you are expected to follow that recommendation and avail yourself of treatment if available. If you don’t, you risk having your compensation reduced.

Like most rules, there are exceptions. If you cannot afford the recommended therapies you will not be penalized, as long as you have applied for any insurance rehabilitation benefits to which you may be entitled, including ICBC’s Part 7 benefits. You are not expected to sell your car to afford massage therapy. In other words, if it would be unreasonable for you to follow recommended treatment, you will not be penalized for failing to do so.

If your treatment provider is closed due to COVID-19, there is not much you can do about it and you would not be penalized for suspending your course of treatment. However, ICBC has announced[1] that they will temporarily fund telehealth services in place of in-person treatments, and that the initial pre-authorized treatment period will extend to at least May 1, 2020 or 12 weeks from the date of the collision, whichever is later. Many counsellors and psychologists continue to offer virtual counselling. As the health care crisis peaks and some treatment providers begin to re-open, they may offer modified services.

It may not be enough to simply suspend your course of treatment because of COVID-19 to avoid a reduction in your award for damages. You will need to consider what alternative options are available and decide whether those options are reasonable in your circumstances, or not. With layoffs and an economic downturn, your financial ability as well as new childcare responsibilities may also factor into your decision, as well as your specific vulnerabilities to COVID-19.

Ideally, you should discuss any modified treatment plan with your doctor and take written notes of the advice that you receive. However, given the current strain on our health care system, you may not be able to get an appointment as soon as you would like. In such circumstances, you should document the reasons for your decision to modify your treatment plan so that the reasonableness of your decision can be supported down the road, while also consulting with your doctor as soon as possible.

To summarize, personal injury claimants who are unable to continue with their recommended course of treatment due to COVID-19 should consider modified treatment if available, speak with the doctor as soon as possible, and document their decisions and thought process.

As always, our clients are encouraged to discuss any such concerns with us. We remain fully available for appointments by phone or videoconference.

Layoffs and Employment Disruptions

A personal injury claimant whose ability to work has been impacted is generally entitled to compensation for past wages that would have been earned but for the injuries sustained, and for reduced capacity to earn income going forward.

The COVID-19 pandemic has caused widespread disruption of the workforce and many have found themselves unemployed or underemployed. That said, certain industries and types of employment are more affected than others. Health care professionals and grocery store employees are mostly continuing to work, whereas restaurants, dentist offices and gyms have mostly closed.

If you are unable to work because of your accident-related injuries but would otherwise have been employed, there should be no impact on your claim. If, however, your employer shut down or laid off employees and there would not have been a job to return to even if you were able, your claim may be reduced to account for that disruption in the job market. If you would have been entitled to employment insurance or other benefits had you been working at the time of such layoffs, that can also be taken into account in assessing your claim for lost wages.

If you are self-employed or run a small business the principles are the same: in assessing your claim for loss of earnings we compare your real-world income with the income that you likely would have earned had you not been injured. If your business would likely have flourished in the current environment (i.e. if you run a commercial sanitizing company), or if your business would likely have seen a downturn (i.e. a restaurant or gym), that positive or negative contingency will be taken into account in assessing the amount of income that you lost because of your injuries, and not because of the COVID-19 pandemic.

As with other aspects of a personal injury claim, documentary evidence is key to proving your loss. Keep records such as correspondence and emails from your employer, market trend bulletins from your trade association, and detailed notes of any phone relevant conversations.

Quality of Life

A personal injury claimant is entitled to compensation for the impact that their injuries have had on their quality of life. These are called non-pecuniary damages, or ‘pain and suffering’, and are measured with factors such as the extent of disability, the duration of symptoms, the age of the claimant, missed recreational opportunities, impact on family life, and pre-injury lifestyle.

It remains to be seen how COVID-19 will impact claims for ‘pain and suffering’. A triathlete who missed their season due to accident-related injuries would have had their missed season accounted for in their claim, however if their season was cancelled due to COVID-19 anyways their claim may be impacted. A grandparent who was unable to play with their small grandchildren due to accident-related injuries would have been compensated for missing those precious opportunities, however if quarantines and social distancing would have kept them isolated from family in any event her claim may be impacted.

Nuts and Bolts of Litigation

All three levels of court in British Columbia have suspended regular operations due to COVID-19. At the time of writing, BC Supreme Court hearings until May 29, 2020 and Provincial Court hearings until May 16, 2020 have been adjourned, with few exceptions. Filing deadlines have been suspended. Once regular operations resume we can expect a backlog of matters that will require court-time, and personal injury trials may be rescheduled behind other, more urgent, matters such as criminal trials and custody disputes.

Fortunately, necessity is the mother of invention and a number of solutions have emerged to ensure that personal injury claims are not stuck at a standstill. Some independent assessment providers have developed virtual assessment services, where the claimant is assessed through videoconferencing. Examinations for discoveries and mediations can proceed by videoconferencing. Many lawyers and insurance adjusters are continuing to work remotely, ensuring that negotiations continue without interruption.

The BC government recently announced[2] that limitation periods are suspended during the provincial state of emergency, which should ease some pressure for claimants who have not yet commenced legal action. That said, we encourage such claimants to contact a lawyer for advice that is specific to your situation without delay.

We remind our clients that we are fully operational and available for telephone and videoconferencing appointments throughout the COVID-19 emergency. Prospective clients are equally invited to contact us regarding their specific legal concerns.
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[1] https://www.icbc.com/about-icbc/contact-us/Pages/covid-19.aspx

[2] https://news.gov.bc.ca/releases/2020AG0028-000578

As many people may be aware, on March 26, 2020 the government of BC suspended limitation periods as a result of the COVID-19 pandemic. The original ministerial order can be found here.

On April 8, 2020 the government of BC issued a new ministerial order which can be found here. This new ministerial order replaced the one of March 26, 2020 and went into force on April 15, 2020.

The new ministerial order continues to suspend limitation periods established by an enactment or law of BC requiring a claim to be commenced in the Provincial Court, Supreme Court or Court of Appeal but was updated from the previous order to include two very important exceptions:

  1. the mandatory limitation periods and other mandatory time periods established under the Builders Lien Act; and
  2. division 5 of part 5 of the Strata Property Act which concern builders liens being filed against strata properties.

So far as we understand the new ministerial order, all deadlines under the Builders Lien Act continue to apply including, but not limited to:

  • the 45-day deadline to file a builders lien;
  • the 55-day period for release of holdback funds;
  • the 21-day deadline to commence an action and file a certificate of pending litigation when served with a 21 day notice; and
  • the one-year deadline to perfect a builders lien through commencing an action and filing a certificate of pending litigation.

The new ministerial order applies during the period from April 8, 2020 until the state of emergency which began on March 18, 2020 expires or is cancelled.

Parties that may be affected by builders lien concerns are urged to resolve those concerns as soon as possible in order to avoid the loss of legal rights or remedies otherwise available to them. Parties affected by builders lien concerns that may have been suspended under the previous ministerial order which are now no longer suspended by the present ministerial order are cautioned to give special consideration to any potentially expiring deadlines.

For more legal resources and information about COVID-19 concerns, please visit our COVID-19 Information Centre. Our archive of construction related articles has many resources related to builders lien concerns.

If you do have questions about builders liens concerns generally or concerning how they might be affected by COVID-19, please feel free to contact me in a confidential manner at 1-800-558-1155 or at burgess@pushormitchell.com.

Please note that this article is current to April 15, 2020.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of builders lien issues. 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.

Courts in Canada have largely shut down as a result of the COVID-19 pandemic except for emergency cases. What does this mean for a civil dispute that you might be involved in?

The case can still progress using a number of dispute resolution processes which are readily available including:

  1. Informal without prejudice meetings between the parties and their lawyers;
  2. Second Opinions. Often disputes are prolonged by a disagreement on a point of law or extent of damages suffered. It may, in some cases, be fruitful for one or both of the parties to obtain a non-binding legal opinion from an experienced lawyer not having any interest or investment in the case;
  3. Mediations are more structured than meetings between the parties and are always conducted by a mediator who is skilled in finding common ground between the parties and guiding them towards a negotiated settlement;
  4. Arbitration process can be designed by the parties to suit their purposes or the parties can agree to adopt standard published procedures.  Many commercial agreements have provisions for mandatory arbitration.  The parties can select an arbitrator they know is skilled and experienced in the area of law in question.  Arbitrations can occur quite quickly after the dispute arises and are less formal and procedure bound than trials in court.  Unless otherwise agreed,  arbitration awards are enforceable as court orders.

For the most part these processes are only available where the parties agree to employ them.  There will in some cases be reluctance from the party who is likely going to liable to pay an award to the other.  All of these methods of dispute resolution are likely to be faster and cheaper that traditional court conducted litigation.

In light of the COVID-19 pandemic all of these dispute resolution processes can be conducted safely without fear of infection using video conferencing.  Pushor Mitchell has this technology and can help get you set up as well. Please contact us should you wish to explore any of these alternatives.

Though these are challenging times for business owners, Pushor Mitchell’s lawyers are here to help. We strive to offer you suggestions and practical legal advice to keep you on track.

If you own a business, you may be facing numerous challenges such as bills coming in: rent, utilities, property taxes, and invoices from suppliers all coming due. Your clients may have dried up and your receivables are starting to stack up.

You may be dealing with other shareholders or directors who are on self-isolation or worse, perhaps they are stuck outside of the country or have symptoms and are focussing on their own health.

You are likely taking on more responsibility as you have had to lay off staff or have staff who are tied up dealing with their children. You might be struggling to find the time to look your after own children while working and all of a sudden finding yourself in the role of a teacher as well. All while working on a laptop on top of boxes set up in your makeshift office in the hallway while trying to focus on both the health of your business and the health of your family at the same time.

Pushor Mitchell’s lawyers are here to work with you and help you navigate through these issues. Some of the areas where we can help are set out below.

Corporate Governance

If you have multiple shareholders and directors, you will want to review your company’s Articles as well as the BC Business Corporations Act (if you are a BC corporation). Are you permitted to conduct virtual meetings with the other directors? You certainly still want to ensure that you are complying with all of your corporate governance requirements. If you are permitted to hold virtual directors’ meetings, go ahead and do so. If you are not permitted by your Articles, a workaround is to request all directors sign consent resolutions which, if drafted properly, can be signed in counterparts and all emailed to one person to collate and keep organized. If not already permitted, if may also be appropriate to designate one director to sign alone for certain items including business contracts or amendments to them at this time to make sure the daily running of the business is more efficient and you do not get bogged down trying to track down people. You also want to make sure that you are keeping in touch on a regular basis with your fellow directors, shareholders and other stakeholders to discuss potential issues that may arise. Communication will be key to getting you through this.

This is also a great time to dust off your Shareholders’ Agreement (if you have one – if you do not, it would be a good time to consider putting one in place) and see what impact it has. For some business owners, this is a time where a partner or shareholder decides to take the plunge and retire as they have been considering for a while. In that case, what provisions does the Shareholders’ Agreement have in terms of an exit strategy. Do you want to buy out your partner? Does the Shareholders’ Agreement set the price at fair market value or something else? Is there a third party waiting in the wings, interested in purchasing all or a part of your business thinking they will obtain good value at this time? That could be a very positive thing. You may gain a great new shareholder/business partner who can add value and help you through this challenging time and set your company up for further success when the economy heats up.

Though the times are tough and strange, you still want to make sure to take the steps to get proper legal and accounting advice before entering into any transactions or changes to the business structure. Just like in calmer times, you could be walking into a minefield of tax and liability issues without proper advice.

Covering Your Bills

This is one of the biggest challenges to businesses of all sizes right now. Again, there are some solutions. You may want to consider seeing if you can defer certain payments. Some lenders are willing to let you defer mortgage payments. Some landlords are willing to let you defer rent payments for a while. You may incur penalties or additional costs in the long run, but you do need to maintain your cashflow capabilities and some additional costs in the long run may be well worth it. You will want to take a holistic look at all potential liabilities and determine where you need to prioritize payments. Which ones can be deferred? Which ones must be paid immediately? Pull out your business contracts, loan agreements, security documents and take a look at what you have agreed to in the past. Only once you fully understand your current situation will you have the tools to negotiate changes.

Pushor Mitchell can assist with drafting rental deferral agreements if you are able to negotiate a deferral or additional security documents if you find a willing lender. Do you have access to an operating line of credit that you can draw on in the short term? The situation is evolving daily and between the federal and provincial governments, there are programs being put in place and many lenders are able to assist. The Government of Canada has set up the Business Credit Availability Program where loans are available through the Business Development Bank of Canada and Export Development Canada to small and medium sized businesses.

Employees

For details on some of the issues you may be facing regarding employees and the potential for layoffs, please see our article on Layoffs, Working Remotely and School Closures as a Result of COVID-19 here. From the perspective of managing your business, it is challenging to balance the concerns of current cashflow and employees are often a huge expense. It is not generally reasonable to pay employees when you do not have enough work for them. However, there can be challenges if you let too may people go now as you may be too short staffed when things heat up again. This is of particular concern where you have employees with specialised knowledge or skill that are hard to replace. There are no easy answers here and each business owner needs to evaluate this on a case by case basis. In some cases, that means re-evaluating daily as the current situation is evolving quickly. As of Friday, March 27, the Government of Canada announced a wage subsidy program covering up to 75% of wages for up to 3 months to help business owners maintain employees through this crisis. Details are still coming in on this program and as of now we know that it will be available to any business that has seen their revenues fall by at least 30% year over year in March due to COVID-19. The subsidy will apply to annual employee salaries up to $58,700 for a maximum weekly subsidy of $847. The wage subsidy is available retroactively to March 15, 2020.

At the end of the day, remember that you are not alone. Pushor Mitchell and other professionals are here to advise. Reach out to your team and we will help you through this.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

As of March 30, 2020, there are changes to the BC Residential Tenancy Act and BC Manufactured Home Park Tenancy Act that will remain in force until our provincial state of emergency ends. These changes:

  • establish a general moratorium on evictions, except if a landlord can prove extenuating circumstances;
  • freeze rent increases;
  • allow landlords to restrict tenants’ access to common areas;
  • restrict landlords’ ability to enter the rental unit, unless there is a risk to personal property or life; and
  • change the procedures for handling dispute resolution.

In a series of articles, our firm will provide insight into each of these changes.

This is also a good opportunity to review the legislative requirements for providing notice to tenants in the event of a real estate transaction. These requirements apply to landlords who wish to unilaterally provide notice to their tenants. Of course, if a landlord and tenant are willing to negotiate and enter into a written mutual agreement to end the tenancy, then these requirements will not apply.

Under BC’s tenancy legislation, a landlord is permitted to give a tenant a Two Month Notice to End Tenancy if the landlord (or a landlord’s close family member) intends to occupy the rental unit.  An intention to occupy the rental unit is different than providing notice in anticipation of sale.

For example, if a landlord lives in a residence separate and apart from the rental unit, then they cannot provide a Two Month Notice to End Tenancy to a tenant in anticipation of sale, unless the landlord (or a close family member) intends, in good faith, to occupy the rental unit prior to sale.  This means that if you have a legal suite in your house that you rent out, and you intend to sell your home, you cannot provide a Two Month Notice to End Tenancy to your tenant in anticipation of that sale unless (1) a close family member intends, in good faith, to reside in the suite until sale, (2) you intend to move into the suite (perhaps in order to perform some renovations to the main living space prior to sale?) or (3) or you intend to decommission the suite as a separate residence and integrate it back into the home as living space.

Instead, if the landlord does not intend, in good faith, to occupy the rental unit prior to sale, the landlord must wait to provide notice until he or she is in receipt of a written request from a buyer to serve the tenant with a Two Month Notice to End Tenancy because it is the buyer’s intention to occupy the rental unit. This means that the Two Month Notice to End Tenancy must not be issued until there is a binding contract of purchase and sale.

In addition to the Two Month Notice to End Tenancy, a tenant is also entitled to receive compensation of one months rent. Usually the tenant simply does not pay the rent in the last month of the tenancy in lieu of compensation. If the tenant chooses to leave before the effective date of the notice, then the landlord must pay the tenant a pro-rated daily amount for the period in which the tenant vacated early, in addition to compensation of one months rent.

As a landlord, it is important that the timing of the Two Month Notice to End Tenancy is accurate in order to avoid the consequences for not using the rental unit for the stated purpose, which is prescribed by legislation as an amount equal to 12 months rent. For example, if the buyer requests that the seller provide the notice to the tenant, but then does not occupy the rental unit, then the tenant will have a claim against the buyer and not the seller.

However, as of March 30, 2020, any new Two Month Notice to End Tenancy is invalid and unenforceable. A Two Month Notice to End Tenancy is enforceable against the tenant if the landlord has received an Order of Possession from the Residential Tenancy Branch.  In other words, if the Two Month Notice to End Tenancy that the landlord seeks to rely upon to receive an Order of Possession is dated March 31, 2020 or any time within the period of the state of emergency, then the Residential Tenancy Branch will refuse to issue the Order of Possession and will inform the landlord to reissue the Two Month Notice to End Tenancy when legal to do so. This means that a landlord must wait to issue a Two Month Notice to End Tenancy until after the end of the state of emergency.

If a landlord has issued a Two Month Notice to End Tenancy prior to March 30, 2020, it is still valid, and the landlord may apply to the Residential Tenancy Branch for an Order of Possession if the tenant refuses to vacate the rental unit.  However, enforceability of an Order of Possession is also suspended to the end of the state of emergency. This means that a tenant who has received a valid Two Month Notice to End Tenancy may stay in the rental unit until the end of the state of emergency, but must vacate immediately when the state of emergency ends.  The tenant is not absolved of paying rent during this period, and if the tenant does not pay rent, then the landlord may apply for an order for monetary compensation against the tenant at the end of the state of emergency.

In a nutshell, the only manner in which a tenancy may end in anticipation of a real estate transaction after March 30, 2020 is where there is a mutual agreement to end tenancy.

Generally, an inability to give a tenant a Two Month Notice to End Tenancy should not prohibit sale of the rental unit, unless the seller has made representations to the buyer that the seller will provide vacant possession of the rental unit.

Therefore, if you are a landlord who is entering into a contract of purchase of sale with a buyer during the provincial state of emergency, your contract must address the fact that the tenant may continue in possession and that the buyer may give the tenant the Two Month Notice to End Tenancy at any time following completion of the purchase and sale and the end of the state of emergency.

If you are a landlord who has already entered into a contract of purchase and sale, you must review that contract to determine your obligations to the buyer to provide vacant possession of the rental unit. It may be prudent to negotiate an amendment to the contract of purchase and sale that includes completing the transaction, subject to the ongoing possession of the rental unit by the tenant, where possible.

As of March 30, 2020, there are changes to the BC Residential Tenancy Act and BC Manufactured Home Park Tenancy Act that will remain in force until our provincial state of emergency ends. These changes:

  • establish a general moratorium on evictions, except if a landlord can prove extenuating circumstances;
  • freeze rent increases;
  • allow landlords to restrict tenants’ access to common areas;
  • restrict landlords’ ability to enter the rental unit, unless there is a risk to personal property or life; and
  • change the procedures for handling dispute resolution.

In a series of articles, our firm will provide insight into each of these changes.

Many landlords are concerned that the changes to BC’s tenancy legislation mean that BC’s government has mandated free rent for tenants during this period. In effect, the changes to the legislation allow tenants to defer all or a portion of their rent without fear of eviction during the state of emergency. Tenants who do not pay their rent in full and on time will carry forward a debt to their landlord, which will be immediately due and payable once the state of emergency is over.

In the normal course, BC’s tenancy legislation allows landlords to issue a 10-day Notice to End Tenancy for Unpaid Rent to tenants if rent is overdue. After 10 days, if the rent has not been paid, the tenant has not moved out and the tenant has not applied to the Residential Tenancy Branch to dispute the notice, then the landlord may seek an order of possession of the rental unit and monetary judgment against the tenant for outstanding rent. A bailiff can enforce both the order of possession (by removing the tenant and their personal property lawfully) and monetary judgment (by seizing certain of the tenant’s personal property) on your behalf.

During the provincial state of emergency, changes to the legislation prevent landlords who do not receive rent from their tenants in full and on time from issuing the 10-day Notice to End Tenancy.  However, it is important to understand that the changes to the legislation still require tenants to pay their rent in full and on time.  As soon as the provincial state of emergency ends, the tenant must immediately pay all outstanding rent to the landlord or the landlord may issue the 10-Day Notice to End Tenancy and commence a claim for the outstanding rent.

This means that tenants who do not pay their rent in full during our state of emergency will risk eviction and judgment against them once the state of emergency is over.

The Employment Standards Act was amended to provide job protection to persons who are ill, need to self-isolate, need to care for their child or other dependent, or whose employer is concerned that the employee may expose others to risk as a result of the COVID-19.  An employer must not request, and an employee is not required to provide, a medical note substantiating the absence.

The Employment Standards Act was also amended to provide employees with up to three days of annual unpaid leave for personal illness or injury after 90 days of employment.

The amendments followed a three-hour emergency session at the legislature and are retroactive to January 27, 2020.

Both amendments are “leaves” under the Employment Standards Act. Employees who take such leaves are provided with the same protections as employees who avail themselves of other statutory leaves, such as pregnancy and parental leaves. An employer must place an employee in the position the employee held before taking leave or in a comparable position upon an employee’s return to work. Given this change, employers will want to exercise caution when terminating a person’s employment who has recently been on leave as a result of COVID-19.

Provincial Government Initiatives

On March 23rd, the British Columbia government announced a $5-billion economic relief plan to support families, businesses and economic recovery in response to COVID-19. A centrepiece of the plan is a $1,000 payment to workers who have been have been laid off, those who are sick or quarantined and those who have had to stay home to care for their children or sick family members as result of COVID-19. Individuals receiving employment insurance will be eligible to apply for this benefit.

As part of its economic relief plan, the province allocated $2.2 billion in relief to help businesses recover after the outbreak. Details of how the $2.2 billion will be dedicated have not been articulated as of this writing.

Additional aspects of the economic action plan impacting businesses include:

  • Permitting businesses with a payroll over $500,000 to defer their employer health tax payments until Sept. 30, 2020. Businesses with a payroll under this threshold are already exempt from the tax;
  • extending tax filing and payment deadlines for the provincial sales tax, municipal and regional district tax on short-term accommodation, tobacco tax, motor fuel tax and carbon tax until Sept. 30, 2020; and
  • delaying the scheduled April 1 increase to the provincial carbon tax, as well as the new PST registration requirements on e-commerce and the implementation of PST on sweetened carbonated drinks until September 30, 2020.

Federal Government Initiatives

The Federal Government recently released its COVID-19 Economic Response Plan. A key feature of the plan is a 75% wage subsidy for societies and small and medium businesses. Last week, the Federal Government announced a 10% wage subsidy. This amount was criticized for being insufficient. In response, the federal government announced that it was increasing the amount of the wage subsidy to 75% to encourage employers to retain employees. Companies that experience a drop of at least 30% revenue may be eligible for the wage subsidy which will cover 75% of an individual’s salary up to $58,700 (i.e., up to $847 per week).The subsidy is slated to last for up to 3 months, retroactive to March 15, 2020. Additional details about the subsidy (including eligibility and the application process) are expected early this week. However, the government has stated that the number of persons employed will not determine eligibility.

Other features of the plan for businesses and employees are in the below table:

Initiative Impact
Extending the Work-Sharing Program from 38 weeks to 76 weeks Work-Sharing is a program that helps employers and employees avoid layoffs when there is a temporary decrease in business activity beyond the control of the employer. The program provides employment insurance benefits to eligible employees who agree to reduce their normal working hours and share the available work while their employer recovers.
Canada Emergency Response Benefit A taxable benefit of $2,000 a month for up to four months to eligible individuals who have lost income as a result of COVID-19.
Business Tax Deferral Businesses may defer the payment of any income tax that becomes owing on or after March 18 and before September 2020 until after August 31, 2020.
Business Credit Availability Program Export Development Canada and the Business Development Bank of Canada will provide more than $10 billion in direct lending and other types of financial support at market rates to eligible businesses. It will provide interest-free loans of up to $40,000 to small business and not-for profits to cover expenses during the pandemic.

As part of a multinational commitment to end hidden ownership of companies, there are new requirements under the Business Corporations Act (British Columbia) (the “Act”) regarding beneficial ownership and control of companies which comes into effect May 1, 2020. These changes are similar to the requirements under the Canada Business Corporations Act concerning beneficial ownership of federal corporations which came into effect June 13, 2019 and which you can read about in my earlier Legal Alert Article here.

As of May 1, all BC companies will be required to prepare and maintain at their records office an additional register called a Transparency Register.

Individuals are considered to be significant individuals and must be shown on the Transparency Register if they meet one or more of the following criteria:

  1. They own an interest in 25% or more of the shares as a registered owner;
  2. They own shares as a registered owner that carry 25% or more of the voting rights;
  3. They own an interest in 25% or more of shares as a beneficial owner;
  4. They own shares as a beneficial owner that carry 25% or more of the voting rights;
  5. They have indirect control in 25% or more of the votes or shares, such as, if they indirectly control an intermediate entity or a person that holds 25% or more of the shares or votes of a private company;
  6. They hold 25% or more of the shares or votes for the benefit of another person; for example, the trustee of a trust;
  7. They hold a combination of interests that amount to 25% of the votes or shares by way of being a registered owner, trustee, beneficiary or having indirect control;
  8. They can cause a change in the majority of directors of the company by way of their shareholdings or special rights provided in the articles of the company or shareholders’ agreement;
  9. They have indirect control of the right to elect, appoint or remove a majority of the directors;
  10. They have direct and significant influence over an individual with the right or ability to elect, appoint or remove a majority of the directors;
  11. They have a combination of special rights, indirect control or direct and significant influence to elect, appoint or remove a majority of the directors;
  12. They have interests or rights jointly with one or more additional individuals which together meet any of the above thresholds; in such case the company must list all joint holders;
  13. They are a group of individuals who are acting in concert, hold interests, rights or abilities that meet the 25% threshold or have the direct or indirect right to elect, appoint or remove a majority of the directors of a private company. In this case, the company must list every member of the group; or
  14. They are spouses and/or children regardless of where they live or they are other relatives of the individual or the individual’s spouse who have the same home and together meet the 25% threshold or have the direct or indirect right to elect, appoint or remove a majority of the directors of a private company. In this case, the company must list every member of the group.

Each company’s Transparency Register must include the following information for all significant individuals :

  1. Full name, date of birth and last known address;
  2. Whether they are a Canadian citizen or permanent resident of Canada;
  3. If they are not a Canadian citizen or permanent resident of Canada, every country or state of which they are a citizen;
  4. Whether they are resident in Canada for the purposes of the Income Tax Act (Canada);
  5. The date on which they became or ceased to be a significant individual in the company; and
  6. A description of how they are a significant individual.

The Transparency Register will not be available to the public.  The legislation indicates that only the current directors of the company, law enforcement, tax authorities and regulators may request access to the Transparency Register.

Companies will be required to send a notice to an individual within 10 days after recording him or her as a significant individual or removing him or her as a significant individual from the Transparency Register. If there are no individuals who meet the definition of a significant individual, a Transparency Register is still required to be kept but will show that the company has determined that there are no individuals who meet the definition of a significant individual.

If the company does not comply with the new record keeping requirement, it may be found guilty of an offence and subject to a fine of up to $100,000.00.  If the directors or shareholders of the company knowingly record or authorize, permit or acquiesce in the recording of false or misleading information in the register, they could be subject to a fine of up to $50,000.00.

Companies will also be required to update the Transparency Register within 30 days of when information changes and to provide a description of the steps taken at least once in every calendar year, within two months of the company’s anniversary date of recognition to identify all significant individuals and ensure the information in the Transparency Register is accurate, complete and up-to-date.

Some companies are choosing to send a Questionnaire out to all shareholders to assist the company in obtaining the information required to confirm that their Transparency Register is complete and accurate.

If you have a BC company and wish to discuss your new Transparency Register requirements, please feel free to contact us.


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

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

Paul also helps clients plan for their future with estate and incapacity planning. He guides executors through the legal challenges that are unknown to many when they agree to take on the executor’s role. This may involve determining whether a grant of probate is required and applying for one if necessary, calling in assets, paying out debts, transferring real estate to surviving joint tenants and determining whether additional steps may be required in order to wind up an estate and transfer the balance of assets to the deceased’s beneficiaries.

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

 

Pre-judgment garnishment is a powerful remedy that allows a creditor to secure their claims by garnishing funds owed to a debtor and holding them in court pending a further order or agreement of the parties. As I have written about previous, this extraordinary remedy requires strict adherence to its requirements. It is crucial to get it right when it comes to pre-judgment garnishment or the efforts will have been wasted.

The recent case of Nisa Holdings Inc. v LMG Mgmt. Ltd., 2020 BCSC 11 (CanLII) is an example of how even small omissions in garnishment materials can result in the garnishment being unsuccessful.

In Nisa the Defendant, a business, was sold and the Plaintiff, the former owner, entered into a contract to provide sales consulting services with compensation to be based on a commissions formula as well as reimbursement for expenses. It was alleged that the Defendant owed the Plaintiff $72,757.01 in commissions and two garnishment orders were sought and granted to secure such funds from the Defendant’s bank account.

As an aside, the garnishing orders did not actually result in any funds being garnished, which was unknown to the parties when the application was brought in the case. The garnishing orders had resulted in Defendant’s line of credit being frozen and there being issues with the Defendant making payroll and debt payments.

The Court in Nisa summarized the law concerning pre-judgment garnishment as follows (citations omitted):

  • “A garnishment order before judgment is an extraordinary remedy and there must be strict but not perfect observance of the legislation…” (para. 18);
  • “A garnishment order before judgment must be in respect of a debt or liquidated claim…” (para. 19);
  • “A liquidated claim is a claim for “a specific sum which has either been ascertained or is capable of being ascertained as a matter of mere calculation”” (para. 20);
  • “A plaintiff must account for all just discounts.” (para. 21);
  • “…full and frank disclosure of matters which are relevant and material to the prescribed content of the affidavit filed in support must be made…” (para. 22;
  • “If a defendant provides evidence which, if accepted, would establish that there is a set-off for a debt or liquidated amount, and the plaintiff’s affidavit in support of the garnishing order has not made an allowance for it, the garnishing order may be set aside…” (para. 23).

The Plaintiff failed to include any accounting for $1,719.17 in overages in cell phone charges that the parties discussed would be clawed back from commissions owing to the Plaintiff. While there was discussions of negotiating with the telecommunications company to reduce the amount of overages, the amount of overages was known and a liquidated amount that was not disclosed in the affidavit materials supporting the application for the garnishment order.

The court did not “read down” the garnishing order to the claimed amount of $72,757.01 less the $1,719.17 in overages; rather, it set aside the garnishing orders in their entirety for failing to make all just discounts.

Nisa Holdings Inc. v LMG Mgmt. Ltd. demonstrates how careful parties need to be when drafting garnishment materials. The Plaintiff failing to disclose that there was a set-off claim which would reduce the alleged debt by less than 2.5% was sufficient for the court to find that there was a failure to disclose all relevant materials and make all just discounts and set aside the garnishment in its entirety. The result being that the Plaintiff who sought the garnishment wasted costs and expenses and was exposed to censure.

It is prudent to seek legal assistance in preparing garnishment materials and to ensure that full and frank disclosure of any potential claims or amounts which would or could reduce the amounts claimed are discussed and disclosed.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of creditors’ remedies. 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.

When would-be homeowners obtain home inspections, they place a great deal of reliance on the inspection report they receive. Purchasers often presume that if a home inspector doesn’t discover an issue, it doesn’t exist. Similarly, they might presume that if a home inspector fails to discover an issue, there is legal recourse for that. Whether or not a home inspector might bear any liability and whether the exposure for any liability is contractually limited can be complex to tease out.

The starting point for understanding what a home inspector may or may not be responsible to inspect is to look at the scope of the contract. Home inspectors are unlikely to be found responsible for failing to discover issues that are not within the scope of their inspection. The thoroughness of a home inspection and how invasive investigative efforts might be is something to be negotiated amount purchasers, vendors and home inspectors. Purchasers ought to be aware that a home inspection is no guarantee that all issues with a property have been uncovered.

S. 12 of the Home Inspector Licensing Regulation, B.C. Reg. 12/2009 (the “Regulation”) provides that, among other things, the following must be included in a home inspection contract:

  • specifics of what will be covered by the inspection;
  • whether or not the inspection will inspect for mould;
  • whether or not the inspection will inspect for asbestos;
  • whether the inspection will be non-invasive or specify the invasive procedures that will be used, and
  • include inspection of any a garage or carport, whether or not the garage or carport is attached to a dwelling.

S. 13 of Regulation also provides that, among other things, the following must be included in the home inspection contract:

  • the report must be in writing; and
  • opinions on the condition of each of the things that the home inspection contract requires the inspector to inspect and anything that the inspector recommends that the would-be purchaser obtain expert advice on.
  • 12 of the Regulation also states that home inspection contracts cannot purport to limit the liability, or the amount of the liability of the inspector or purport to limit the time for making a claim against the licensee.

Until ss. 12 and 13 of the Regulation was adopted in September 2016, home inspectors in British Columbia were permitted to attempt to limit their liability to the cost of their inspection and such clauses could be upheld. The analysis concerning whether a limitation of liability clause for home inspections would be upheld is summarized in Ferrer v. 589557 B.C. Ltd., 2020 BCCA 83 (CanLII). Citing the lower court’s review of Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) 2010 SCC 4 the court held that the analysis of whether a limitation clause could limit liability of a home inspection could be summarized as follows:

  • first the court must consider whether the clause applied to the circumstances in question;
  • if the clause does not apply, the analysis ends;
  • if the clause does apply, the court would consider whether the limitation clause as unconscionable at the time the contract was formed such that the limitation clause could not be said to form a part of the contract;
  • even if the clause applied and was not found to be unconscionable, a part seeking to exclude the clause could still attempt to establish that there was overriding public policy concerns that could override the application of the clause.

There has been no reported judicial consideration of ss. 12 and 13 of the Regulation cited on the Canadian Legal Information Institute website at the time of writing. There are likely many home inspection contracts that did not properly incorporate the requirements of ss. 12 and 13 of the Regulation as soon as those sections came into force. Further, issues in a home may take several years to discover by home owners and, as such, there are large number of potential issues that could concern home inspection contracts prior to September, 2016 which purport to limit liability of the home inspector to the value of the contract.

In short, there are many circumstances in which a home inspection contract could potentially limit or in which a contract could purport to limit the liability of a home inspector but fail to do so. Careful consideration is always required to consider whether issues that might arise in a purchased home relate to the scope of a home inspection contract, especially since ss. 12 and 13 of the Regulation came into force and required specific items to be included in the scope of a home inspection contract.

If you discover issues in a home you purchased which potentially ought to have been discovered by a home inspector, careful consideration should be given to the scope of the home inspection contract and any clauses that purport to limit the liability of the inspector. Legal advice should be considered before threatening or commencing a claim against a home inspector or the vendor(s).


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of disputes related to undisclosed issues with real property. 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 provincial government published its list of essential services on March 26th. Essential services are workplaces that are encouraged to stay open by the provincial government. Notwithstanding this designation, essential services must adapt their workplace to meet the standards and orders required by the Provincial Health Officer.

A list of essential services can be found here: Non-Health Essential Service Providers

Non-essential workplaces are permitted to remain open provided they comply with the standards and orders established by the Provincial Health Officer, and they have not otherwise been ordered to shut down (e.g., bars and hair salons).

While the distinction between essential and non-essential services appears arbitrary (i.e., both are permitted to remain open provided they comply with the orders of the Provincial Health Officer), the distinction may become important if the government orders additional businesses to suspend operations during the state of emergency. In this scenario, it is more likely that the government will order the closure of non-essential workplaces.

Workplaces deemed essential services in the current context differ from workplaces designated as essential services under the Labour Relations Code. The latter is narrower and requires unionized employees to provide basic services during a strike or lockout.

Morbid? Yes. Timely? Yes. A Will is a “back-burner” thing. Life is busy… but all of a sudden, a global health crisis has hit us all. If you don’t have a Will in place, or if you have an old Will, the time to act is now to get your estate planning in order. In this ever-changing situation that has been thrust upon us all, it is imperative to have your estate planning up to date, to reflect your current wishes and assets. Let’s face it, there is never a “good time” to get this done, but perhaps these next few weeks of isolation will give you the peace you need to address these “back-burner” tasks. Here’s why:

Do you have a Will? If you die without a Will, your assets may be administered by the Public Trustee and distributed in a manner contrary to your wishes.

Do you have minor children? Your Will is the legal instrument that allows you to appoint an Executor/Trustee and the Guardian of your children. If you do not have a Will, the Government may act as guardian of your children until a Court appointed Guardian is selected, and any money for the benefit of your children will be held by the Government until your children turn 19. Wouldn’t you prefer to appoint close family members or friends to take care of your children and to control at what age they receive their Trust fund? Insurance policies nowadays can be upwards of a million dollars, making trusts and age controlled distribution even more important.

Has there been a change in your marital status? Divorce or marriage may have a significant impact on your estate distribution. Children of a prior marriage may not receive what is intended without the completion of a new Will.

Are you a blended family? A blended family situation adds complexity to your estate plan. Tangled assets, ex‐spouses, “your children, my children and our children” can have major ramifications on your estate plan.

Do you know much about Trusts? You’ve probably heard the term but how do you know if it’s right for you?  Trusts are an excellent tool which can protect your estate from Wills Variation claims and save you thousands in taxes.

Do you have a business? Giving assets or shares in a company is a tricky business. Any shareholder agreements or partnership agreements need to be carefully reviewed by your lawyer to ensure they reflect your wishes.


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 Real Estate and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.

COVID-19 has resulted in a number of issues which put the performance of purchase contracts for real property at risk. Some of the more obvious concerns include reduced cashflows, layoffs, economic slow down, dropping housing prices and general inability to conduct business in ordinary fashion. Such challenging circumstances can and do lead to an uptick in purchase contracts not completing either because conditions do not get removed or one side of the transaction refuses to complete.

With the extreme circumstances created by COVID-19, a question that arises is whether related issues might support an argument that at purchase contract has been frustrated, which would release all parties from performing the purchase contract. The Supreme Court of Canada in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 (CanLII), succinctly summarized the doctrine of frustration at paras. 53 and 55 as follows:

Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes “a thing radically different from that which was undertaken by the contract…

The court is asked to intervene, not to enforce some fictional intention imputed to the parties, but to relieve the parties of their bargain because a supervening event… has occurred without the fault of either party.

Frustration is a high bar; it does not apply just because intervening circumstances make performance of a purchase contract unreasonably harsh or onerous or because things unfold in a manner that the parties didn’t anticipate.[1] Frustration is not just encountering the unexpected, it is encountering something that the parties could not anticipate.[2]

While COVID-19 may be a relatively unique concern, the issues that arise out of it -housing prices dropping, purchasers losing the value of their investments, purchasers losing their jobs or sudden challenges and delays in effecting a conveyance or obtaining financing- are ordinary risks of purchase contracts. Further, a global pandemic and its economic effects may be a remote possibility, but it is arguable that a global pandemic is always a foreseeable risk.

COVID-19 concerns, at present, do not radically alter the purpose of a purchase contract, but such concerns do heighten the need for all contracting parties to better understand the legal effects and consequences of various contractual terms they are bound by or may draft. Land is still available to transfer and can be transferred and money is still able to be exchanged. Legal aspects of a purchase contract can be performed through remote and/or electronic means if requiring including securing financing and transferring title. For example, our real estate team is prepared to assist remotely for virtually all aspects of a conveyance.

It appears unlikely that present concerns raised by COVID-19 could give rise to a successful argument about frustration barring a uniquely drafted purchase contract that is particularly and unexpectedly affected by such concerns. A standard purchase contract does not appear to have the potential of being frustrated with present COVID-19 concerns.

That said, circumstances are evolving every day. If more restrictive measures get put into place, there is the possibility that it becomes impossible for parties to either satisfy subject-to clauses or even effect the purchase and sale of real property. For example, if it no longer becomes possible to effect a transfer of title through the Land Title Office, the doctrine of frustration may apply.

Where COVID-19 has and is likely to continue to affect purchase contracts is with respect to subject-to clauses, also know as conditions precedent. The three types of categories of condition precedent clauses was described in the dissenting opinion in Wiebe v. Bobsein, [1985] 64 B.C.L.R. 295; 39 R.P.R. 228; 20 D.L.R. (4th) 475 as follows:

  • conditions so imprecise and/or dependant on the subjective state of mind of the purchaser that the purchase contract is still regarded as at the offer stage (for example: “Subject to the purchasers liking the carpet”)
  • conditions that are clear, precise and objective that a purchase contract is complete and parties can no longer withdraw (for example: “subject to no new sales tax coming into force prior to purchase); and
  • conditions that have subjective and objective components dependant on a determination or decision. Such conditions require purchasers to take all reasonable steps to satisfy such conditions (for example: “subject to approval of the purchaser’s development plan” which would impose an obligation for a purchaser to subject a properly created plan in a timely fashion).

Parties should carefully consider how their conditions precedent may or may not be affected by COVID-19 concerns.

Further, parties should give more careful consideration to the drafting and interpretation of condition precedent clauses. Creatively drafted clauses could directly account for issues that might arise as a result of COVID-19. Other drafting considerations could include longer closing and completion dates to accommodate unusual delays created by COVID-19.

A discussion of condition precedent clauses and the effect of their waiver or satisfaction can be found in my previous article, Contracts of Purchase and Sale: Removing Subjects.

Practically speaking, people can expect and require the process of purchasing real estate to adjust to COVID-19 concerns. For example, virtual home tours are becoming more widely utilized or parties are requesting confirmation from each other that neither has exhibited symptoms or travelled out of the country in the previous 14 days before showings. Purchasers may be requesting vendors to make more detailed representations about a property than would be found in the ordinary property disclosure statement. Parties may wish to craft what will occur in the event of certain breaches of a purchase contract instead of relying on what the law might otherwise impose.

In short, the business of buying and selling real property is expected to carry on at present with a heightened need for parties to carefully consider their contractual terms and an expectation that we’ll continue to see practical and contractual responses to concerns raised by COVID-19.

For a more general discussion on frustration and contracts, please consider reviewing Practical Legal Advice and COVID-19: Relying on Force Majeure Clauses or the Doctrine of Frustration and for a view more focused on employment contracts, COVID-19 and Frustration of Contracts.

Please continue to check out our blog for updates on COVID-19 related legal information.

If you do have questions about contracts of purchase and sale generally or concerning how they might be affected by COVID-19, please feel free to contact me in a confidential manner at 1-800-558-1155 or at burgess@pushormitchell.com.


[1] Delta Food Processors Ltd. v. East Pacific Enterprises Ltd., 1979 CanLII 668 (BC SC)

[2] KBK No. 138 Ventures Ltd. v. Canada Safeway Ltd.2000 BCCA 295

Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of disputes arising out of contracts of purchase and sale. 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.

This is an unprecedented time due to the COVID-19 pandemic. The effects of the spread of the virus are being felt across all industries by employers and employees alike.

One of the many questions I get asked with respect to COVID-19 and the workplace is:

Can COVID-19 be work related?

As with all WorkSafeBC claims, the general principle applies that for a claim to be accepted, an injury or illness must arise out of and in the course of employment. In the context of COVID-19, not only must an employee contract COVID-19, they must have contracted it as a direct result of their employment. What this means is that the nature of the employee’s work must create a risk of contracting COVID-19 that is significantly greater than what is expected through the ordinary risk of exposure to the general public. Immediate examples include front line health care workers.

Can an employee file a WorkSafeBC claim if they have contracted COVID-19?

If an employee has a documented diagnosis that they have contracted COVID-19 and the employee is at a significantly greater risk than the general public of contracting COVID-19, the employee should file a Form 6 and the employer should file a Form 7 with WorkSafeBC. WorkSafeBC will adjudicate each submitted claim on a case by case basis.

WorkSafeBC will not accept claims for employees that are quarantined or self-isolated on a precautionary basis. There are other avenues for monetary assistance for such workers from Services Canada.

Have any other workplace questions? – Don’t hesitate to ask – We are here to help.

Until COVID-19, many business people had not heard about or given much consideration to force majeure clauses in their business contracts. Now, in the light of the COVID-19 outbreak across the globe, both force majeure clauses and the doctrine of frustration have become very relevant and much-discussed topics.

Force Majeure

What is a “force majeure clause”? It is a term in a written contract that generally operates to discharge a contracting party when an unexpected event beyond the control of either party makes performance of the contract impossible.

The question for many businesses is whether they can escape their contractual obligations without legal consequence on the basis of a force majeure clause as a result of the COVID-19 outbreak’s affect on their business. Unfortunately, there is no one-size-fits-all answer.

In Canada, and in British Columbia specifically, whether a force majeure clause will allow your business to avoid its contractual obligations to another party is a fact-specific determination that depends upon the specific wording of the particular force majeure clause agreed to in the contract.

Generally, the following factors are considered when determining the applicability and scope of a force majeure clause:

  1. Whether COVID-19 can be considered a triggering event under the particular clause;
  2. The impact of COVID-19 on the party’s ability to perform its contractual obligations; and
  3. The obligations of the parties under the clause, including whether proper notice was given and the party’s duty to mitigate the effect of the force majeure event.

If you are considering whether your business should or could rely upon a force majeure clause, here are some practical tips:

  1. Don’t assume that there is a force majeure clause in your contract. Not all contracts include these clauses.
  2. If there is a force majeure clause in your contract, read it carefully several times.
    • Are there any triggering events in the clause that might allow your business to claim that the COVID-19 circumstances are covered by the clause (e.g. that an “epidemic or quarantine” is a triggering event)? If not, is there a “catch-all” clause that might cover the COVID-19 circumstances affecting your business?
    • Based on the language used in the force majeure clause, have the COVID-19 circumstances created, in commercial terms, a real and substantial problem, one that makes performance commercially unfeasible or impossible? Keep in mind that the inability to pay and a change in financial circumstance do not necessarily mean that performance is impossible.
    • What relief does the force majeure clause provide? Does it allow your business to terminate the contract or something else? For example, does it simply allow late performance?
    • Does the force majeure clause require you to provide notice to the other party to the contract? If so, you need to strictly comply with the terms of the notice provision.
  3. Consider carefully whether there is anything your business could do to mitigate the effect of COVID-19. If you want to rely on the force majeure clause, you will need to show that you took commercially reasonable steps to help limit the losses that the other party to the contract will suffer.
  4. Since force majeure clauses are fact-specific, the other party to the contract may not agree with your interpretation of whether and how the force majeure clause applies in the circumstances. If a party relies on a force majeure clause, and the other party to the contract disagrees about the applicability of the clause, the other party can seek relief through court proceedings or through arbitration proceedings (the type of legal proceeding depends upon the other terms of the contract). When making the decision whether to rely on a force majeure clause, it is best not to ignore the potential time and money cost of these legal proceedings, regardless of whether you expect your interpretation will prove to be the correct one.

Frustration

If the contract does not have a force majeure clause, or the clause does not apply to the circumstances triggered by the COVID-19, all parties to a contract might be excused from performance of the contract based upon the doctrine of frustration. Under the common law doctrine of frustration, a contract is frustrated when:

  1. A qualifying supervening event (one for which the contract makes no provision, which is not the fault of either party, which was not self-induced, and which was not foreseeable) transpires, and
  2. That event results in performance of the contract becoming a thing radically different from that which was undertaken when the parties entered the contract.

However, the second element is a difficult threshold to reach, particularly because it is a well-established legal principle that increased expense or hardship alone does not frustrate a contract.

Further, as with the interpretation of force majeure clauses, if the other party to the contract does not agree that the doctrine of frustration applies, that party can seek relief through arbitration or litigation proceedings.

We also refer you to the article by Pushor Mitchell LLP’s Alfred Kempf: COVID-19 and Frustration of Contracts

Conclusion

We recommend you seek a lawyer’s assistance to determine the likelihood that the force majeure clause in your business contract(s) or the doctrine of frustration will allow you to take the steps you would like to take. In addition, a lawyer can also identify whether there are any other avenues that might be available to help your business through these challenging times.

Effective this morning, March 19 2020, the Chief Justice of the Supreme Court of British Columbia announced the temporary suspension of regular court operations to help contain the spread of COVID-19. A similar announcement was made on March 17, 2020 by the Provincial Court of British Columbia and the Court of Appeal for British Columbia.

Our clients should rest assured that we are monitoring the situation and taking every measure available to ensure that you continue to receive excellent legal services with as minimal disruption as possible.

In this Legal Alert we will review the temporary measures implemented and explain how they may affect your matter.

What matters are affected?

In the Supreme Court of British Columbia, all civil, criminal, and family matters scheduled for hearing, including trials until May 1, 2020 are adjourned.

In the Provincial Court of British Columbia all civil and family matters scheduled for hearing, including trials, until May 16, 2020 are adjourned. Out of custody criminal matters scheduled for hearing until May 16, 2020 are adjourned, however in-custody criminal matters, including trials, will proceed. All traffic, ticket or bylaw matters scheduled until May 16, 2020 are adjourned.

In the Court of Appeal for British Columbia, all civil and criminal appeals scheduled for hearing until May 1, 2020 are adjourned.

In all courts, matters deemed or designated “essential or urgent” will proceed, or as otherwise directed by the court.

If your matter is adjourned your lawyer will schedule a new hearing as soon as possible, however we do not yet know when the courts will resume normal operations or when rescheduling will begin. We expect that there will be a backlog of matters to be rescheduled and it may be some time before we can obtain new dates for hearing. We will keep our clients apprised of developments and we appreciate our clients’ patience.

During this period filing deadlines for matters already underway are suspended, and some limitation periods have been suspended. If you believe that you are at risk of an expiring limitation period, contact a lawyer right away. While we expect that the Court will exercise some flexibility once normal operations resume, we cannot guarantee that you will receive an extension of time if your limitation period does expire.

What matters are considered “essential and urgent”?

Family Proceedings

  • Orders relating to the safety of a child or parent due to risk of violence or immediate harm;
  • Orders relating to the risk of removal of a child from the jurisdiction; and
  • Orders relating to the well-being of a child, such as essential medical decision, urgent issues relating to parenting time, and contact or communication with a child that cannot be reasonably delayed.

Civil Proceedings

  • Matters related to public health and safety and COVID-19;
  • Refusal of treatment and end of life matters;
  • Civil detention of individuals;
  • Emergency adult guardianship and committeeship orders;
  • Housing evictions and interim stays of orders of possession;
  • Civil restraining orders;
  • Preservation orders;
  • Urgent injunction applications; and
  • Urgent orders in the nature of habeas corpus, certiorari, mandamus and

Criminal Proceedings

  • Bail, bail review, and s.525 detention hearings;
  • Habeas corpus applications; and
  • Search warrants, arrest warrants, and other authorization for surveillance applications that should not be delayed.

Other matters may be considered “essential and urgent” by the presiding judge on a case-by-case basis.

If you are an existing client and believe that your have an urgent or essential matter that must proceed before May 1, 2020 please contact your lawyer by email.

If you are not an existing client and believe that you have an urgent or essential matter that must proceed before May 1, 2020, please contact one of our lawyers by email:

Where can I find updated information?

This is a rapidly evolving situation and we anticipate receiving further notices and updates from the Court. Such notices are available to the public:

We remain committed to providing our clients with legal services with as minimal disruption as possible during these uncertain times. If you have questions or concerns about a new or ongoing legal matter, please contact your lawyer by email. We look forward to connecting with you.

Our previous update provided practical tips that employers can take in the workplace to meet their occupational health and safety requirements. It also discussed government recommendations respecting non-essential travel and self-imposed quarantines. That article can be accessed here. Our governments have made several directives and recommendations since our previous article which we address below. This article also canvasses issues such as school closures, layoffs resulting from COVID-19, working remotely and bans on large public gatherings.

School Closures

The British Columbia government announced that it is suspending all schools in the province until further notice. As many students are not old enough to remain home without adult supervision, parents will be required to supervise their children from home. Although both the federal and provincial government have strongly encouraged employees to work remotely from home where possible, productivity will be impacted where parents are expected to work and mind their children at the same time. Employers should be very cautious about disciplining employees for productivity reasons if they are being asked to work from home and have childcare responsibilities. The Ontario government has proposed a bill that that provides protection for workers who need to provide care to a child due to a COVID-19 related school closure. A similar bill has not been proposed in British Columbia as of this writing.

Temporary Layoffs

Although the terms “layoff” and “termination” are sometimes used synonymously, they are separate concepts. A layoff is temporary. The employee is expected to come back to work following a brief hiatus. A termination of employment is final.

With respect to temporarily laying off employees, the British Columbia Employment Standards Act, provides that a temporary layoff occurs where an employee’s weekly working wages are reduced by 50%. A layoff is only permitted where:

  • The layoff is part of an employment contract
  • The layoff is a normal part of the industry; or
  • The employee agrees to the layoff.

A temporary layoff is not indefinite.  Temporary layoffs can be up to 13 weeks in a 20-week period. Any layoff in excess of that amount results in a termination of employment.

Temporary layoffs are unpaid unless a collective agreement, workplace policy or employment agreement states otherwise. However, employees who have been temporarily laid off are entitled to collect employment insurance benefits. An employer must issue a Record of Employment for employees who are temporarily laid off.

The permissibility of a layoff is going to differ in every workplace. Notwithstanding what is in the Employment Standards Act, a layoff – unless agreed to by the parties – may result in a constructive dismissal (i.e., termination of employment) at common law as employees generally have a right to work. Similarly, collective agreements may not permit a temporary layoff. Given the potential severance obligations, we strongly encourage employers to get legal advice if they intend to layoff a portion of their workforce.

Gatherings Limited to 50 or less Persons

The British Columbia Provincial Health Officer issued an order prohibiting gatherings of more than 50 people. The order expires on May 30, 2020 unless revised or extended.

Working Remotely

Employers have been asked to put in place measures that will allow employees to work remotely. Working remotely does not mean vacation. Employees are required to work – albeit at home. Employers should consider the use of technology to enable meetings. For many employees, computer access and an internet connection will be enough to allow productive work from the home. Employers may want to consider having regularly scheduled check-in times to ensure that goals are still being met and to ensure that employees can ask for assistance where needed. Not all work can be performed safely from home however, and employers will want to ensure that steps are taken to prevent the disclosure of confidential information.

We will continue to update this blog as more information becomes available. In the interim, we encourage employers and employees to follow the instructions provided by our health authorities. Up to date information from the federal government can be accessed here and from the British Columbia government here.

Organizations  are suddenly facing economic uncertainty given the new and far reaching consequences of COVID-19.

Employers are scrambling to respond to changes, including the ban on gatherings of 50 or more people (that includes indoor and outdoor sporting events, conferences, meetings, and religious gatherings). There is no doubt this will have a huge impact on individuals, businesses and employers.

In some cases organizations may be unable to meet their commitments under contracts where supplies of raw material or labour become unavailable.

Many employers may face a sudden lack of work and/or a need  to socially isolate employees which might require reorganization of the workplace. In ordinary circumstances, under the Employment Standards Act (“ESA”), employees would be entitled to receive either written notice or pay in lieu of notice where long layoffs or terminations occur.

Section 65 of the ESA however establishes statutory exemptions to the usual rights of employees to receive either written notice or pay in lieu of notice. One exemption – which may assist employers – applies where an employee is employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance.

This exemption essentially codifies the common law doctrine of frustration. Under the doctrine of frustration, a contract is deemed at an end if an external event, beyond the control of either party, renders the continued performance of the agreement impossible. In the employment context, for an employer to be able to rely on this exemption, the employer has the burden of demonstrating that the event makes it both impossible to perform the employment and that the impossibility of the performance was due to an unforeseeable event or circumstance – such as an “act of God”.

Traditionally “Act of God” events have referred to natural disasters, such as earthquakes, floods or tornados. A long-standing definition of  an “Act of God” is as follows:

An Act of God, in the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen … and which could not have been guarded against … The occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably be anticipated.

COVID-19 may be an event which constitutes an “Act of God”. On March 11, 2020, the World Health Organization (WHO) assessed COVID-19 as a pandemic. The Director-General described the extraordinary status of COVID-19, “We have never before seen a pandemic sparked by a coronavirus. This is the first pandemic caused by a coronavirus. And we have never before seen a pandemic that can be controlled, at the same time.”

Whether COVID-19 constitutes an “Act of God” is still unknown. Ultimately organizations considering adjusting their work force or contemplating not performing contractual commitments to stay afloat in these unpredictable times, should contact a legal professional to consider their specific circumstances and whether the law of frustration applies.

COVID-19 (also known as the coronavirus) has had a significant impact on Canadian workplaces. It is a novel virus that has left employers and employees scrambling. We recently released an article containing answers to some frequently asked questions. That article can be accessed here. Since that time, additional information impacting the workplace has been provided by our governments. This article summarizes those changes and outlines steps that employers can take in the workplace to respond to the coronavirus. We recognize that changes are happening on an hourly basis and encourage you to contact us if you have any questions. We will be updating this blog as new information becomes available.

As a starting point, the Occupational Health and Safety Regulation requires employers to ensure the health and safety of their workers. This includes taking steps to prevent the spread of infectious disease. Employers are encouraged to prepare a business continuity plan, as well as a contingency plan, to use if the progression of the virus impacts your workplace. As the maxim goes, an ounce of prevention is worth a pound of cure.

On March 12th, the British Columbia government announced that anyone travelling outside of Canada will be required to stay away from work and school for two weeks following their return to British Columbia.  The Government is also strongly advising people to avoid non-essential travel.

Employers are recommended to follow the advice of the provincial government. Workers traveling outside of Canada should self-quarantine for 14 days when arriving back in British Columbia. Workers are urged to consider cancelling or postponing travel outside of Canada at this time. Non-essential work trips should also be postponed.

Employers will want to consider whether workers can work remotely. This will (of course) not be possible in every workplace and every industry. Employers should also consider implementing directives limiting meetings and encouraging communications through technology. Although employers are encouraged to canvass the possibility of working remotely, employers must be cognizant of whether the remote work can be performed safely.

Part of an employer’s responsibility to ensure the health and safety of its workers includes ensuring that employees who are ill not attend the workplace. Employees who are ill or are showing symptoms of the coronavirus should be encouraged to stay home.

With respect to hygiene in the workplace, WorkSafeBC has published a guide outlining the steps an employer should take to control infectious diseases in the workplace. It can be accessed here. The guide does not address the coronavirus directly; however, it provides guidance on dealing with infectious diseases that are transmitted in a similar manner.

Although every workplace is different, practical steps that employers should consider include:

  • Educating employees on preventing the spread of infectious disease;
  • Increasing the frequency with which the workplace is cleaned, in particular high traffic areas such as boardrooms, lunchrooms, elevators, doorways and staircases (i.e., any place with a handle, button or handrail);
  • Encouraging workers to frequently and properly wash their hands. A poster that can be used in the workplace illustrating proper hand hygiene can be accessed here. A guide on proper hand hygiene can be accessed on the BC Centre for Disease Control website here;
  • Permitting working remotely where applicable;
  • Ensuring that employee medical information is kept confidential;
  • Considering limiting worker participation in large social gatherings (i.e., the provincial government has banned gatherings of more than 250 people);
  • Handling contaminated equipment and linens according to safe work procedures; and
  • Wearing personal protective equipment (PPE) such as face shields, masks, gowns if there is a risk of splashes and sprays of bodily fluids.

The Federal Government recently announced that it is eliminating the one-week waiting period for employment insurance benefits where a worker is quarantined as a result of COVID-19. This means that workers may be eligible for employment insurance benefits for the duration of the 14-day quarantine period.

With respect to childcare, the British Columbia government has not announced school closures. However, such an announcement (if it is made) will have a domino effect on employee availability in the workplace. We will update this blog if such an occurrence comes to pass.

Given the novelty of COVID-19, we encourage employers and employees to follow the instructions provided by our health authorities. Up to date information from the federal government can be accessed here and from the British Columbia government here.

Employers and Employees are pondering their rights in light of the Corona virus.  We have set out some of the questions that might arise and our answer to same.

Q:    If I suspect an employee has contacted the virus can I require the employee to stay home or seek medical attention?

A:    Yes.  The Occupational Health and Safety Regulation requires employers to ensure the health and safety of its workers.  Given the novelty of the virus, reasonableness would prevail and suspicions should be investigated by asking the employee to be safely tested.

Q:  Will an employer be liable for wages for time lost by an employee suspected of having been exposed to the virus or suffering from the disease?

A:  The employer should not be liable to pay wages to an employee asked to not report to work if the belief that the employee has been exposed to the virus is reasonably held.  Similarly, an employer is not liable to pay wages to an employee who misses work because he or she has contracted the disease.

Q:  Is there any form of income assistance for employees being placed on leave for suspected exposure or because they have contracted the disease?

A:  Employees off work for more than 7 days would qualify for Employment Sickness benefits.  Group disability insurance may also be available after a qualification period.  These benefits would extend to those diagnosed with the disease.  It is doubtful that those merely exposed to the disease would qualify.

Q:   Are there human rights issued raised if an employer discriminates against employees exposed to the disease or diagnosed with it?

A:  A transitory disease is not protected under the BC Human Rights Code.  If the disease were to cause a permanent physical disability the Code may apply to such disability.

Q:  Can an employee refuse to work in circumstances to avoid exposure to the virus?

A:  It depends.    Employees have a right to refuse unsafe work under the Occupational Health and Safety Regulation. Employees must have reasonable cause to believe their health and safety is at risk. However, reasonableness should prevail.  The prudent course of action is to investigate the refusal and, if it is justified, identify ways to minimize risk. This may include permitting an employee to work from home.  Work travel to certain countries and/or regions should not be compelled. Refusal to work in a care home in which a resident has been diagnosed with the disease would likely not justify a refusal to work if the employer has made reasonable and recommended equipment and preventive clothing available to the employees eliminating the risk of infection.  There may be exceptions for employees who are particularly vulnerable to complications due to pre-existing conditions.

Q:  Must an employer pay wages for employees who are unable to work because of travel restrictions or an infection in the workplace which causes a temporary or permanent closure of the operation?

A:  Generally, no. However, employers may have sick leave policies that entitle employees to pay.

Q:  Would a lay-off triggered by effects of the disease trigger the right of an employee to claim constructive dismissal or severance pay?

A:  It depends on the legitimacy of the lay-off. A constructive dismissal occurs where an employer evinces an intention to no longer be bound by the employment contract. It is less likely that a constructive dismissal occurs when the lay-off is a necessary and rationale response to the virus. If the lay-off is overly conservative and not based on real risk or real decline in business, the answer is likely yes.  That said, the Employment Standards Act provides that a lay-off exceeding 13 weeks in a 17 week period will result in a termination of employment. In certain businesses the consequences of the disease may also result in the employment contract being frustrated meaning the employment contract would come to an end without the requirement to pay severance.  (i.e. tour guides in the hardest hit areas).

Q:  Is an employee entitled to work from home to reduce chances of exposure to the virus?

A:  An employee cannot unilaterally elect to work from home unless the contract of employment provides such discretion to the employee (few do).  It may however be reasonable in certain circumstances to allow employees to work from home.

Q:  Can an employee make a claim to WorkSafeBC if he or she becomes infected with the virus due to work exposure:

A:   Maybe, this is the test employed by WorkSafeBC:

  1. (Is) the nature of the employment created for the worker a risk of contracting a kind of disease to which the public at large is not normally exposed; or
  2. (Is) the nature of the employment created for the worker a risk of contracting the disease significantly greater than the ordinary exposure risk of the public at large. In this category, it would not be sufficient to show only that the worker meets more people than workers in other occupations, but it would be significant to show that in the particular employment the worker meets a much larger proportion of people with the particular disease than is found in the population at large.

In a case identified by the court as analogous to David and Goliath, the hardball tactics of the insurer deprives it of its costs, despite successfully defending a claim for personal injury.

An elderly Mrs. Przyk tripped and fell in an Ontario retirement home, sustaining injury. Partially due to her age and status as a retiree (lack of a claim for loss of income earning capacity) the claim was modest. Aviva, the insurer for the retirement home, used tactics the court identified as ‘hardball’ refusing to make any form of settlement offer, other than an offer for the elderly claimant to drop her claim and pay her own legal fees.

The claim was well prepared and presented by Mrs. Przyk’s counsel. The court heard expert evidence from both sides with regard to the likelihood of the uneven paving slabs causing a foreseeable hazard. Ultimately, the jury found that Mrs. Przyk had failed to prove her case; she failed to demonstrate that her personal injuries were caused by the retirement home’s negligent failure to maintain a safe walk way.

Once the jury had delivered its verdict the issue of who bears what legal costs is decided by the judge. What caught the attention of the judge was the manner in which the insurer had defended the claim. In particular, counsel for Ms. Przyk had demonstrated, by reference to advertising for recruitment of potential adjusters for Aviva, that one aspect of the job was to “work closely with and attend mediations with our legal partners or delegated authority program files to ensure a consistent approach and message is delivered. The successful candidate will be heavily involved with Aviva’s various defensible programs and drive a consistent message with judges, mediators and counsel surrounding our litigation files.’

This unyielding approach to defending claims by a market leader who has a 15% market share was identified by the court as analogous to a David and Goliath battle.

[32] Being a large market shareholder is not without social responsibility, size should not be wielded to oppress deserving litigants as that would encroach upon the broader social interests of access to justice.

[33] Aviva with its approach is at risk of allegations of playing hardball. In some circumstances that approach may result in no costs. In a way, that is a cost of doing business in such a fashion.

Legal costs are usually awarded to the successful party. This means the party that wins the claim or successfully defends the claim would usually have their legal costs paid by the losing party. Although Przyk v Hamilton Retirement Home Group Ltd; 2019 ONSC 7498 is an Ontario case it should be noted that all Canadian legal jurisdictions leave the question of costs (who has to pay which party’s legal costs) to the discretion of the court. In Pryzk the court expressed its concerns at the manner Aviva chose to defend claims against it by the unusual order for costs.

This Article in the Province Newspaper by a Doctor shows why the NDP’s proposed No Fault scheme is not good for the injured.

The big picture is that every injured citizen will be dealing directly — without legal advice or support — with a vast bureaucratic apparatus whose interest is split between offering benefits and protecting its bottom line.
See the article here: A Doctor’s Take on no Fault Insurance


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

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

This article by an economist shows the NDP’s justification for No Fault makes No Sense at all.

He shows that the actual historical reasons for rising claims are not “ legal fees” and sets out some options for reducing costs, including changing the aggressive  way that ICBC handles claims that actually drive up costs.

Seer the article here: New ICBC Scheme Will Discriminate Against Many People


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

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

The intersection of tax law in the context of divorce or separation is a complicated topic not easily understood. The Income Tax Act is an extensive piece of legislation that frequently undergoes changes and amendments.

In the context of spousal support, there are several issues that warrant consideration. Unless spouses specifically turn their minds to dealing with the tax features of their separation, it may become another source of friction – along with  the prospects of an unwelcome tax bill,  or income adjustments by the Canada Revenue Agency  –  that both spouses failed to foresee. This situation readily presents itself when it comes time for spouses, who historically filed joint returns, to file their first set of individual tax returns following separation.

As a rule, the following tax principle apply to Spousal Support Payments:

  • Periodic support payments are tax deductible to the payor and deemed to be taxable income to the recipient.
  • Spousal support payments paid by the estate of a payor is tax neutral: the payor’s estate cannot claim a tax benefit nor is it deemed taxable income to the recipient.
  • Lump sum spousal support payments (generally) are not tax deductible to the payor.

In terms of payment of lump sum support, there may be a variety of reasons, financial or otherwise, that  a payor wishes to issue a lump sum amount to a former spouse. It is critical for the payor to recognize that payment of lump sum support does on its face attract the taxable benefits of periodic support. From a financial perspective, it is vital for the payor to also consider whether an adjusted discount ought to be made to notionally equalize the benefits conferred upon the recipient on account of lump sum payments to the other spouse.

The workaround to lump sum support, and to achieve a more level tax field (particularly for the payor) is to adopt the following language in writing by either court order or agreement that:

(a) payment of the lump sum amount paid and received in that specific year is taxable income of the recipient and tax beneficial to the payor;

(b) periodic amounts of support and the specific periods in which those payments represent are specifically identified in a court order or agreement; and

(c) the relevant sections of the Income Tax Act be specifically acknowledged in that agreement or court order.

Apart from the tax considerations of spousal support itself, the CRA also permits a spouse who receives spousal support to claim a tax deduction for all legal and accounting fees related to establishing, maintaining (including regular adjustments), or enforcement of spousal support.  The current tax regime does not afford the same tax break to the payor.

For these reasons it is essential that separating spouses seek proper legal and tax advice to ensure that each spouse takes full advantage of the tax credits and deductions each maybe be eligible for.

Life insurance is simply good planning. Naming beneficiaries properly is even better planning, and does take careful thought. Naming minors on life insurance policies (i.e. in the event that both spouses pass away in a “common disaster”, many young families have the children as alternate beneficiaries) has disadvantages. If the children are minors, and become beneficiaries of a life insurance policy, then the proceeds will be paid to the Public Guardian and Trustee (the “PGT”) to hold, until that child turns 19. The PGT must charge an administration fee every year to hold those funds, and the funds are NOT available to the child or its guardian during that time. So, if a child is say 10 years old, those life insurance proceeds cannot be used for the health, education, maintenance and welfare of that child.

A good planning option is a Life Insurance Trust Declaration, which sets out Trusts for minor or young adult beneficiaries, instead of relying on the insurance company designation forms which do not provide for more sophisticated estate planning. It is difficult to defer the age at which a child gets full control of the life insurance proceeds to an age later than the age of majority (19) without a Life Insurance Trust Declaration.

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

As with any Estate Planning, there are circumstances where Life Insurance Trust Declarations will not be appropriate for clients. Another solution is to remove the child’s name as alternate beneficiary under the Policy, and to instead have the funds flow to the Insured’s estate. The Insured can easily make, or update, their Will to include a trust for the child, to hold his or her inheritance (including these life insurance proceeds) on terms preferred by the Insured (i.e. testamentary trust or disability trust).


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 is a long time Lake Country resident who 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.