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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.

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.
_________________________
[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.


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 tenancies and to discuss your specific circumstances, please contact Elise Everest at 250-869-1128 or everest@pushormitchell.com. Elise practices in the areas of Real Estate, Business Law and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be happy to assist you.

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.


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 tenancies and to discuss your specific circumstances, please contact Elise Everest at 250-869-1128 or everest@pushormitchell.com. Elise practices in the areas of Real Estate, Business Law and Wills & Estates at Pushor Mitchell LLP in Kelowna and would be happy to assist you.

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.

On March 25, 2019, the Protection of Public Participation Act (the “PPPA”) was assented to bringing into force legislation aimed at combating strategy lawsuits against public participation (SLAPPs). The PPPA aims to provide balanced protections to members of the public to speak freely on matters of public interests without the threat of lawsuits being used to silence and financially bully would-be whistle-blowers into silence. The stated intention of the PPPA is to guard against the vulnerability in the legal system of SLAPPs being used to censor public opinion, intimidate people and silence critics.

The PPPA allows a person against whom a legal proceeding has been brought to apply to the court to dismiss the proceeding if it arises from an expression that relates to a matter of public interest. If an applicant can establish that the proceeding against them arises out of an expression of public interest the onus then shifts to the plaintiff to show that there are grounds to believe that the proceeding has substantial merit, there is no defence to the proceeding and that the harm likely to be suffered by the partying bringing the proceeding is serious enough that the public interest in continuing the proceeding outweighs the public interest in the expression in question.

The recent decision in Hobbs v Warner, 2019 BCSC 2196 (CanLII) is one of the first reported decisions applying the PPPA to a so-called SLAPP proceeding and is illustrative of the connection between defamation claims and the PPPA.

In Hobbs, the defendant made a PPPA application to dismiss the defamation suit brought against him. The dispute concerned allegations by the plaintiffs, a company and its principals, that the defendant, a former employee of the corporate defendant, defamed them through an e-mailed tip to members of the Vancouver Police Department, the British Columbia Securities Commission and the RCMP regarding concerns about potentially criminal activities of the plaintiffs. The plaintiffs learned of these tips through various related proceedings.

After reviewing judicial and legislative commentary on PPPA and similar legislation in Ontario, the Court in Hobbs held that the PPPA had the same purposes as the parallel Ontario legislation, that being:

  1. to encourage individuals to express themselves on matters of public interest;
  2. to promote broad participation in debates on matters of public interest;
  3. to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and
  4. to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

The court cited Pointes ProtectionFortress Real Development Inc. v. Rabidoux2018 ONCA 686 that the courts should broadly interpret whether an expression relates to a matter of public interest in order to bring it under the protection of the PPPA. In doing so, the courts should consider that analysis consistent with the purposes of the PPPA. The court went on to cite the following summary of principles cited in Pointes which was referring to Grant v. Torstar Corp., 2009 SCC 61:

  • The phrase (“relates to a matter of public interest”) does not require that the expression actually furthers the public interest… An expression that relates to a matter of public interest remains so even if the language used is intemperate or even harmful to the public interest…;
  • There is no exhaustive list of topics that fall under the rubric “public interest”…;
  • Context of a particular expression can be crucial in determining whether it relates to a matter of public interest…;
  • A matter of public interest must be distinguished from a matter about which the public is merely curious or has a prurient interest…;
  • 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…;
  • Public interest does not turn on the size of the audience: para. 63;
  • 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…;
  • An expression may relate to more than one matter, provided at least one of those matters is “a matter of public interest”…

On the reverse onus provisions, where the suing party attempts to show that their defamation suit should be allowed to continue, the court cited Pointes and held that the court must have reasonable grounds to believe that a claim has substantial merit by examining the application record to see whether it can be shown that the underlying claim is legally tenable and supported by evidence such that it has a real chance of success. If that test is satisfied, the Court must also still find that the party seeking to continue the defamation suit can show the court that the harm they have suffered as a result of the expression in question is serious enough that the public interest in allowing the claim to proceed outweighs the public interest in protecting the freedom of expression enjoyed by the party who made the expression.

The defendant’s employment ended acrimoniously with the corporate defendant. During that process, the defendant became suspicious of his employer’s activities and those suspicions were further deepened and fueled by research he conducted about the publicly available records concerning one of the principal’s past criminal history.

Based on his concerns and suspicions, the defendant concluded that his former employer and its principals were involved in criminal activity, although he was not certain how. He e-mailed a friend at the Vancouver Police Department with his suspicions and copies of articles and decisions related to the past criminal history of his former employer’s principal. When the VPD made some investigations, but did not continue, the defendant then shared his concerns with the British Columbia Securities Commission and the RCMP, largely repeating his same concerns.

Matters snowballed from there with Civil Forfeiture becoming involved, news breaking about an alleged crypto currency scam the company and its principals being involved in various investigations, proceedings and enforcement efforts.

With respect to the PPPA application to dismiss the claim against the defendant, the court found that the defendant’s tips about suspected criminal activities of the plaintiffs related to public interest, being suspicions of crimes including potential money laundering and matters related to drug crime. As such, the defendant passed the threshold of his comments relating to a public interest such that the burden shifted to the plaintiffs to maintain their suit.

The court was satisfied that the plaintiffs established reasonable ground to believe that the defendant’s words were defamatory in nature. The court also found that the defendant’s words referred to each of the plaintiffs. The tips being made to and recorded by the Securities Commission and the RCMP constituted publication. As such, the plaintiffs had established that the elements of defamation might be made out such that they demonstrated their claim was legally tenable and supported by evidence. This was not a finding of defamation or consideration of defences to defamation allegations that might be made out, only that the defamation suit had enough merit to pass the merits-based threshold for continuing despite the defendant meeting the public interest threshold.

The court found that the plaintiffs met the merits-based hurdle to maintaining their defamation suit. They provided more than mere allegations that the defendant’s words were motivated by malice such that there was a reasonable prospect that the defendant’s claims of qualified privilege for making complaints to the various authorities might not succeed. It is important to note that the court observed that sorting through whether such qualified privilege existed or whether malice might be established could take multiple court days, but its task was not to engage in a deep dive analysis, only to consider matters on a threshold basis.

Where the case ultimately turned was on balancing the public interest in the plaintiff’s defamation suit continuing versus the public interest in the protections the PPPA could offer the defendant. The court held that “The plaintiffs have failed to satisfy me that the harm likely to have been, or to be suffered by them, as a result of [the defendant’s] expressions, is serious enough that the public interest engaged in allowing them to proceed with this claim outweighs the public interest in protecting [the defendant’s] freedom of expression.”

The court was not convinced that the harm being suffered by the plaintiffs related to the defendant’s comments; rather, such harm related to the civil forfeiture proceeding and publication of the allegations being made by various investigative bodies against the plaintiffs. There was no proof of a causal link between the defendant’s expressions and the plaintiffs’ alleged losses. The activities being investigated by the various authorities occurred after the defendant left his employment and the investigations were deposed to have related to tips not received from the defendant. The more serious reputational harm alleged to be suffered by the plaintiffs related to investigations into their activities going public rather than the tips left by the defendant.

In conclusion the court held that:

Overall, while I conclude that the quality of [the defendant’s] expressions slightly diminishes the significantly high public interest in protecting reports by citizens to law enforcement, I find the public interest in protecting them still quite high. High enough that the public interest in their protection significantly outweighs any harm that could be found to have been, or be, suffered by the plaintiffs as a result of those expressions. The public interest is, on balance, not served by allowing this action to proceed to an adjudication on the full merit.

Having determined that the defendant would be successful in his PPPA application to dismiss the suit against him, the court also applied other provisions of the PPPA to provide full indemnification to the defendant of his legal costs as a deterrent to similar litigation but declined to award any further damages.

Consideration of the analysis in Hobbs v. Warner and the PPPA should be given to any party thinking about commencing a defamation suit or to any defendant in a defamation suit. The PPPA sends a very clear message that very serious sanctions can follow a defendant successfully setting aside a defamation proceeding made against them on the basis of a PPPA application.

If you are considering potentially commencing a defamation action or are a defendant in a defamation action, it is recommended that you obtain legal advice on how the PPPA might affect proceedings.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of acrimonious business 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.

When a party is denied on a claim by an insurer, a careful analysis of whether the denial is properly made is important. If the claim is analysed as properly denied it is also important to consider whether a claim might be established against the brokerage which secured the policy which was later denied. The recent decision of Alvaro v InsureBC (Lee & Porter) Insurance Services Inc., 2019 BCSC 2017 (CanLII) explores the potential remedy against brokers for failing to properly warn of exceptions in policies or to otherwise obtain the coverage sought by an insured.

In Alvaro, the plaintiffs had gone to the defendant insurance brokerage for many years to insure their several properties, including rental properties. Prior to the loss in question, the plaintiffs were having issues with tenants, who were eventually evicted. After the eviction the subject property was vacant for some time while renovations, repairs and cleanup occurred. It was during this time that the subject property was vacant that a fire occurred.

The insurer denied the claim on the basis that the insurance policy had a vacancy exclusion policy which applied. More particularly, the claim was denied on the following wording in the subject policy:

Section 1 Loss or Damage Not Insured

“We” do not insure:

(3) loss or damage occurring after “your” “dwelling” has, to your knowledge, been “vacant” for more than 30 consecutive days.”

“Vacant refers to the circumstances where, regardless of the presence of furnishings:

(1) all occupants have moved out with no intention of returning and no new occupant has taken up residence; or

(2) In the case of a newly constructed house, no occupant has yet taken up residence.

It did not appear to be strongly contested within the case that the vacancy clause applied; rather, the plaintiffs took the position that they discussed their issues with the tenants, the potential eviction and the potential renovations with a broker and, as such, the brokerage ought to discussed how such circumstances could have triggered the vacancy exclusion and put the plaintiffs’ coverage at risk. The plaintiffs asserted that the brokerage was negligent and sought to recover the equivalent value of their insurance benefits against the brokerage.

The court found that there was inconsistent evidence about whether the plaintiffs discussed the tenancy issues and potential renovations and vacancy with the brokerage and could not find on a balance of probabilities that such discussions took place. This did not end the case as the court analyzed whether, despite the specific conversations alleged not occurring, the brokerage had still satisfied its duty of care owed to the plaintiffs.

The Court reiterated the duty of care of insurance brokers as was summarized in Fine’s Flowers Ltd. et al. v. General Accident Assurance Co. of Canada et al. (1977), 1977 CanLII 1182 (ON CA), 81 D.L.R. (3d) 139 (Ont. C.A.) as follows:

It was the duty of the defendant agent to either procure such coverage, or draw to the attention of the plaintiff his failure or inability to do so and the consequent gap in coverage. Having done neither, the defendant agent is liable in negligence, whether or not the instructions to insure all “insurable” risks or to see that the plaintiff was “adequately covered with insurance”.

The court went on to cite a number of cases which emphasize that brokers need to provide both information and advice to insureds to ensure that such insureds either (a) obtain the right coverage for the risks they seeks to have covered or (b) are otherwise informed of gaps in their insurance policy. Brokers are under a duty to draw the attention of insured to those exceptions in their policies and how an insured might avoid the application of such exclusions.

The court in Alvaro discussed the duties of insureds to provide accurate information to the broker and proactively advise of a material chance of circumstances in order to avoid any material non-disclosure which could properly ground a denial of coverage, even where the non-disclosure is unrelated to the loss actually suffered and claimed for. I discussed the duties of insureds I a previous article,

The court noted that the renewal package did not urge the plaintiffs to review all of the attached conditions of the policy, it was unrealistic to expect a customer to read through a 54 page document to understand how their policy might be affected by the change in vacancy to the subject property, customers were entitled to rely upon the expertise of a broker to provide advise without a customer having to specifically ask for such advise and the policy’s wording provided little assistance for a customer understanding what a material change in circumstances which might vitiate coverage was.

Ultimately the court found that the brokerage knew that the subject property was a rental property and a reasonable and prudent brokerage would have advised its customers about what could be done to avoid a gap of coverage in the case of a vacancy. The duty to draw a client’s attention to the vacancy exemption was much more important in the case of a rental property. It was important to highlight the impact of vacancy on coverage. The court’s position was summed up as follows:

An insurance agent should communicate relevant information directly to the client. To the extent an agent relies on a standardized renewal package, it is incumbent on the agent to ensure that the materials cast important information in the clearest of terms. This would have included spelling out the impact of vacancy on coverage because that is a common concern and one that can void all coverage, particularly with rented dwellings. Where it was known that the dwelling being insured was a rental dwelling, it was particularly important to highlight the impact of vacancy on coverage.

…[I]t was an ongoing duty on the Defendant to investigate and point out any coverage gaps to ensure that the Plaintiffs were aware of them and were provided with appropriate recommendations to remedy any gaps.

The court found that the brokerage was negligent for having failed to conduct adequate fact finding and assessment of the plaintiffs’ insurance needs, failing to draw the plaintiffs’ attention to potential gaps in the policy and failing to include in its renewal materials highlights related to the vacancy exception.

The court held that the plaintiffs should have been put in the position they would have been if coverage had been extended as at the time of the loss less the amount of additional premiums that would have been paid for a vacancy surcharge to obtain the coverage the plaintiffs ought to have been informed was available and assessed damages accordingly.

Alvaro underscores the very strong duty that can be imposed on brokerages to obtain proper insurance for insureds and the ongoing duty to inform insureds of material concerns in their policy coverage. These duties are fact specific. While the question of whether an insurer is properly denying a policy remains a first concern in any insurance dispute, consideration should always be made as to whether fault might lie with a brokerage as well.


Jeremy Burgess is a litigation associate at Pushor Mitchell who assists clients in a number of contractual disputes, including insurance claims. If you have any questions about any such disputes, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

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

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 pursing 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 fifth article we review the tragic case of Erin who has a chronic history of schizophrenia. Erin was in her late 20s and worked as a waitress.  Erin’s illness was generally well managed, and she was high functioning and independent. Triggered by the emotional upset of a breakup with her long-time partner, Erin failed to maintain her usual regime of self-care. Erin’s behavior changed. She started to drop out of activities and isolate herself.  Her work reliability suffered.  Her mood dropped, her thoughts started to race, and she ruminated on why the relationship had ended. Within a few months she was self-harming, believing that there was something alive, inside her arm and she needed to cut it out. She expressed an intention to take her life, that she needed to take her life, to protect her family. It was clear to her family that she had stopped taking her medication.

Two family members took Erin to the local emergency department.  While one family member waited with Erin, the other spoke with the nurse who was triaging the psychiatric patients. The family member explained the paranoia and Erin’s expressed intent to kill herself. The nurse received Erin into her care., but there was no formal admission at that point. The family members, believing Erin to be safe, left the hospital to move the car which was illegally parked.  By the time they returned, about 15 minutes later, Erin was nowhere to be found. Driven by delusions and the need to kill herself to protect her family she had run from the hospital and jumped from a near-by bridge.

The fall did not kill Erin.  She sustained life changing injuries including a brain injury, a fracture to several vertebrae, three fractured limbs and multiple cuts and internal bruising.  These injuries would ultimately prevent her from returning to work and living independently.

The Prejudice of Mental Illness

One of the more challenging and frustrating aspects of this case was the pervasive but erroneous assumption that an individual who has a diagnosis such as schizophrenia could not be expected to work, regardless of the physical injuries sustained. This conveniently overlooked the fact that Erin had worked consistently for almost 10 years, since graduating high school and lived independently and without support for most of that time.

Standard of Care for a Patient in Emergency

The issue of what the standard of care was for a patient in the emergency department, but who had not yet been formally admitted into the hospital, was the central issue.  Erin had not been sectioned under the Mental Health Act, and she was free to leave.  However, given the information the family member had provided to the nurse it was argued that it was reasonably foreseeable that Erin would try to injure herself. The nurse had left Erin alone to advise the psychiatrist on call in the emergency room of the risk of suicide, without protecting the patient. Through careful questioning it was established that the nurse did not need to leave the at-risk patient alone; she was able to call or page the consultant.  There was also an option to take Erin through into an observation area where other nurses and staff were available to provide supervision. The nurse admitted that she had not considered this, although it was an option available to her that night.

Using exceptionally experienced psychiatric experts, Angela was able to negotiate a settlement of this difficult claim. As usual for these cases, liability was never admitted. However, the risk of a finding of liability was sufficient to apply pressure to settle.  The dramatic nature of both the events and the injuries was also likely an additional influence.  This was especially as it was argued that the patient had presented for medical help and intervention at a time when she was most vulnerable and “not herself”. It would not have required much additional effort to take all reasonable steps to provide a safe environment.

Erin received rehabilitation for her physical injuries for many months.  With proper care and administration of her usual medication, Erin’s symptomatic episode was resolved in a fraction of the time.  She has very little recollection of the events.

The settlement provided funds for her future care and gave Erin and her family peace of mind that her future was financially secure.

This was one of several cases which encouraged Angela to engage in community work for mental health issues, including training in suicide first aid, hundreds of hours with the distress/crisis lines and, more recently, she has been appointed to the Board of Directors of the Canadian Mental Health Association.


Angela Price-Stephens is an English and Canadian lawyer who focuses on serious personal injury arising from the negligence of others, mostly health care professionals.  Of her 25-year career approximately half of that time has been spent defending heath authorities, doctors and other healthcare professionals.  That experience is now used exclusively for the benefit of injured patients.

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

Sexual harassment in the workplace exists on a spectrum. It can range from unwelcome comments of a sexual nature to sexual assault. Discipline is determined by where the sexual harassment falls on that spectrum. While sexual harassment in the workplace has long been prohibited by the courts and occupational health and safety regulations, adjudicators have begun to account for social context. In other words, misconduct that may have garnered a “slap on the wrist” a few years ago is treated more seriously by courts and tribunals.

This shift is illustrated in the Alberta Court of Appeal’s decision in Calgary (City) v. Canadian Union of Public Employees Local 37, [2019] A.J. No. 1369. There, a male employee grabbed and squeezed a female employee’s breast. The City of Calgary terminated the harasser’s employment. The union grieved and an arbitrator found that the employee’s actions, while serious, did not warrant termination of employment. A nine-month suspension was substituted in place of termination. In reaching this conclusion, the arbitrator considered the action to be at the lower end of the sexual harassment spectrum because:

  • it was a single incident;
  • the complainant did not appear to be traumatized in any significant way;
  • there was no evidence that this was anything but an impulsive, ill-thought out, isolated incident; and
  • there was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment.

The City of Calgary appealed the decision. The Alberta Court of Appeal overturned the arbitrator’s decision, noting that “[a]rbitrators must consider whether time and changing social values reveal precedents to be based on faulty assumptions about acceptable sexual conduct in the workplace.” Social context must be taken into account when assessing the appropriate level of discipline. There is a greater understanding of both the prevalence and impact of sexual harassment in the workplace. The court expressed concern that the arbitrator referred to the misconduct as “sexual annoyance” – not sexual assault – notwithstanding that the misconduct involved purposely grabbing a fellow employee’s breast without consent. In a forceful ruling, the Court appears to adopt a zero-tolerance policy for sexual assault in the workplace:

“There is absolutely no place in the workplace for touching, rubbing, forced kissing, fondling or any other physical contact of a sexual nature where one party does not consent. It is objectively clear that sexual assault is wrong and acknowledging that sexual assault is serious misconduct sends a strong message to all employees about societal values and acceptable workplace behaviour.”

Sexual harassment has never been permitted in the modern workplace. However, it has and does occur. The above decision exemplifies how society’s increased understanding of the impact and prevalence of sexual harassment has filtered into the judicial system.

A recent case in Ontario found a rec league hockey player responsible for significant damages for a blindside hit in a no contact league.

In the recent case (Casterton v. MacIsaac) the Plaintiff successfully sued the Defendant after suffering serious  injuries in a hockey game.

The parties were playing in a recreational senior hockey league that was a “ no contact “ league.

The judge stated as follows:

[111]      The League is a recreational, non-contact league.  Every player who testified nevertheless recognized that hockey is a fast-paced sport where some degree of body contact is inevitable.  Accidental injury is always a risk. Various players talked about past injuries they got from loose pucks. Players in the League, including Casterton, signed a waiver releasing the league from any damages as a result of hockey injuries.

[112]      Injury can be caused by contact with other players. Body checking is punishable as a major penalty. The very existence of this penalty shows that body checking – just like conduct that may attract a minor penalty, such as tripping and hooking – may occur. It is sanctionable, but not completely unexpected conduct.

[113]      In sum, players can expect that they may be accidentally injured during a game, even a game in a recreational, non-contact league. They accept this risk when they play.

[114]      Each player also testified, however, that blindside hits – especially hits to the head – are absolutely prohibited. They have no place in recreational play, or in any hockey game.

In this case the judge found the defendant went outside the bounds of expected play, and had an intention of injurying the plaintiff.

The defendant was initially charged criminally with assault for the incident.  He was convicted but his conviction was overturned on appeal and the charge was ultimately stayed.

The judge commented further as follows:

[120]      I have already rejected some of Desjardins’ evidence; notably, his testimony that MacIsaac was skating parallel to the back boards when the collision occurred.  On the other hand, his recollection about MacIsaac’s body posture just before the collision has been consistent from the time it occurred.  It was the reason why he gave MacIsaac a ten-minute major misconduct penalty.

[121]      Desjardins played in competitive and semi-professional leagues before becoming a referee in 2010. He had officiated about 600 games by March 2012.  He explained why this incident stood out in his memory.  He had no bias towards or against either team or any particular player. He had simply never seen “such an act of violence” in a hockey game; as both a referee and as a player. He was fifteen to twenty feet away from the point of impact, and nothing obstructed his view. In his opinion, MacIsaac deliberately attempted to injure Casterton.

[122]      I conclude that MacIsaac intentionally skated at high speed towards Casterton from an angle where his approach could not be seen. He positioned his arms and drew up his body in such a way as to maximize bodily contact, causing a collision between MacIsaac’s shoulder and forearms and the lower half of Casterton’s face. Casterton did not anticipate the check and, as such, made no moves to protect himself or attempt to avoid the collision. Each player admitted that, if Casterton’s theory of how the collision occurred were accepted, this was a blindside hit.

[123]      Based on the evidence of Winton and Desjardins about MacIsaac’s body posture, I find that MacIsaac either deliberately attempted to injure Casterton or was reckless about the possibility that he would do so.  But even if I concluded that the hit was neither intentional nor reckless, applying the test in Kempf, MacIsaac would be liable for Casterton’s injuries because he failed to meet the standard of care applicable to a hockey player in the circumstances. Every player who testified stated that a blindside hit to the face is and was outside the bounds of fair play.

[124]      MacIsaac is therefore liable for the injuries that Casterton suffered during the March 15, 2012 game.

This case shows that where an injury occurs in a non contact rec hockey league, where the hit was shown to have an intention to injure the other player, the aggressive player may be found responsible for damages.


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.

Subject to clauses, waiver or satisfaction of subject to clauses, deposits and when deposits become non-refundable are issues in contracts of purchase and sale that often become the subject of litigation and perhaps more often are not well understood by buyers and sellers. These issues were at the heart of the recent decision in 1050438 B.C. Ltd. v Penguin Enterprises Ltd., 2019 BCSC 2138 (CanLII).

In 1050438 B.C. Ltd, the buyer and seller entered a standard form contract for the purchase and sale of a hotel. A total deposit of $500,000 was provided in two steps and the contract was assigned to a new buyer shortly before the deal was set to close. By the time of the reported decision, the issue of the deposit was the only remaining issue in the dispute to be adjudicated.

The seller’s position was that it was ready, willing and able to close, but that the buyer failed to pay the remainder of the purchase price or execute the closing documents. The seller further submitted that, as a result, the buyer had repudiated the contract and the seller was entitled to terminate the contract and retain the deposit.

The buyer’s position was that the seller failed to deliver an environmental report required by a subject to clause. The buyer further submitted that it never waived the condition for the seller to provide the report. As such, the buyer’s position was that the seller breached the sales agreement.

Having found that the matter was suitable for summary trial, the court then analyzed the material terms of the subject contract. The contract included the standard term that time would be of the essence and a clause that made the contract subject to, among other things, the seller providing a copy of a stage 2 environmental report within 14 days of the acceptance of the offer of purchase and sale. By addendum, the parties agreed that several of the subjects were satisfied, but there was no mention to the stage 2 environmental report condition being removed.

The court found that there has been no waiver of the requirement to provide a stage 2 environmental report despite the contract being clear and unequivocal that the seller had an obligation to provide the report. The seller failed it its obligations and the Court rejected submissions that there were clerical errors in the addendum which removed the other subject-to conditions. The court held that the clause to provide a stage 2 environmental report to be reasonable in a commercial real estate transaction of the value in question.

The court went on to examine whether the buyer had waived the condition of provision of the environmental report. Turning to case law the court held that the analysis of whether a party has waived a condition by conduct may be summarized as follows:

  1. the party alleged to have waived must be demonstrated to have full knowing of its rights;
  2. the party alleged to have waived must be demonstrated to have unequivocally and consciously abandoned its rights;
  3. the overring consideration is whether the clear intention to waive was communicated to the other party; and
  4. the onus is on the party alleging the waiver to establish the wavier in evidence.

The court did not accept that the seller advising it did not have the environmental report and the buyer indicating it intended to secure a report of its own as a waiver of the obligation of the seller to provide the report. Rather, the court found that the parties remained at odds over the report and the buyer’s intention to get a report of its own was an indulgence, not a waiver.

The court found that the seller breached the contract and remained at breach at the time of closing. The buyer did not reject the contract but attempted to keep it alive through negotiating an extension of closing. The seller erred by attempting to take the position that the buyer was in breach of the contract when it refused to complete while the seller had yet to satisfy its obligation to provide the stage 2 environmental report. As stated by the court: “… the Seller cannot complain of the wrongdoing of the Buyer when he was in default under the contract…. the Seller jumped the gun by terminating the contract.”

Having made the findings it did, the court ordered that the $500,000 deposit be returned to the buyer.

1050438 B.C. Ltd. v Penguin Enterprises Ltd. underscores the importance of parties properly considering the effects and meaning of subject-to clauses. Such clauses are not mere formalities that can be lightly treated but have effect on what obligations a party is entitled to perform and when and when deposits become forfeit or a party is obliged to complete a purchase or sale.

When a purchase and sale agreement is collapsing, parties need to carefully consider the terms of the contract and their past conduct to understand what obligations may or may not continue to exist and what their options are. The actions taken and what things are communicated can have substantial and irretractable effects on what rights may continue to exist or be terminated. It is recommended that parties to complex purchases or any party to a collapsing or potentially collapsing purchases of real property seek timely and competent legal advice.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of real estate 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.

 

What does your Executor have to do?

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

What do an Executor’s duties include?

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

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


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

 

If a parent or spouse has an obligation to pay support, and lives in a foreign country that has income tax rates which are significantly different than Canadian income tax rates then the Court will consider a number of factors when converting the foreign income to Canadian dollars.  The purpose of converting the foreign income to Canadian dollars is to help ensure consistency between support received by dependents in Canada, and the payor’s available after-tax income as if earned in Canada.  Converting foreign income to Canadian income is not just a straight application of the current currency conversion rate to the gross amount of foreign income.

The usual practice1 is to start with converting the foreign gross income to Canadian dollars at a fair exchange rate.  Then apply the foreign tax rate to calculate the payor’s after-tax income in Canadian dollars.  Once the payor’s after-tax Canadian income is determined, the next step is to determine what gross income would be required to result in the same after-tax income using Canadian tax rates.

For example, assuming a foreign tax rate of 10%, a Canadian tax rate of 20%, and an exchange rate of 1.35 then:

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

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

$121.5 net Canadian income + 20% Canadian tax rate = $145.8 gross Canadian income for support purposes.

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

While it is attractive to approach conversion of foreign income by a straight application of exchange rates, the tax regime of the foreign country must also be considered to ensure dependents in Canada receive support appropriate to Canadian standards.

At Pushor Mitchell, our full-service firm can help you with your legal requirements including issues involving family and tax law.
____________________
1Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 488, 2009 CarswellBC 2767

In December 2019, the Metro Vancouver Regional District received an administrative penalty of $637,415.60 for committing high risk safety violations.  The administrative penalty stemmed from work done inside a sewer line defined as a confined space.  Specifically, WorkSafeBC determined that work was done by the employer without:

  • Obtaining the required WorkSafeBC approval of proposed alternative measures of control or isolation of adjacent piping;
  • Following safe work procedures for confined space entry;
  • Adequately controlling the risks associated with harmful substances such as hydrogen sulfide gas (H2S);
  • Conducting a hazard assessment;
  • Developing written procedures to eliminate or minimize the hazards of working in confined spaces;
  • Developing, reviewing, and updating a confined space entry permit that identified the confined space and work activities, required precautions, and time of expiration;
  • Maintaining pre-entry test records showing the date and time of the test and the conditions found;
  • Controlling harmful substances in piping adjacent to the confined space;
  • Ensuring workers were trained in the hazards of the confined space, and that they were informed of and instructed in alternative measures to control harmful substances;
  • Adequately training supervisors for confined space entry work; and
  • Ensuring the health and safety of its workers.

When it comes to health and safety administrative penalties, WorkSafeBC may impose penalties on employers when they do one or more of the following:

  • Fail to take sufficient precautions to prevent work-related injury or illness;
  • Do not comply with the Occupational Health and Safety (OHS) Regulation, Part 3 of the Workers Compensation Act, or an applicable order; or
  • Have an unsafe workplace or working conditions.

What can an administrative penalty cost you?  The amount of a penalty is based on the nature of the violation, a company’s history of violations, and the size of the company’s payroll.  High risk violations and repeat offenders may be subject to higher administrative penalties.  Penalties can range from a minimum of $1,250 to a maximum of $674,445.93.

In the Okanagan, the most common administrative penalties received by employers are for failure to use fall protection.  These penalties have ranged from $2,500 to well over $20,000.

In most cases, employers have the right to appeal orders and administrative penalty decisions. Requests for a review of health and safety orders and penalty decisions must be submitted within 45 days of the decision date.

The Workers’ Compensation Act specifically states that a penalty cannot be imposed if the employer has exercised due diligence.  Due diligence requires taking all reasonable steps to protect workers from harm. “All reasonable steps” is determined based on the level of judgment and care that a person would reasonably be expected to take under the circumstances.

Due diligence requires that an employer:

  • Identify all workplace hazards;
  • Implement all necessary preventive measures and training;
  • Communicate appropriately to all necessary personnel; and
  • Be able to demonstrate how you are implementing your written health and safety policies, procedures, and practices and to provide written proof of enforcement when necessary.

Check out our other articles with respect to Employment, Labour and WorkSafeBC.

I’ve previously written on defamation within the context of social media and airing grievances about services on social media, and the recent decision of Rook v. Halcrow, 2019 BCSC 2253 continues to underscore that social media posts are public domain and that serious censure can follow defamatory social media posts. It appears that courts are perhaps increasingly willing to award very serious damages for particularly malicious social media posts.

In Rook v. Halcrow, the plaintiff and defendant had an on and off again relationship for approximately a year or so. After their relationship ended, social media posts began cropping up which defamed the plaintiff. The posts made allegations defaming the plaintiff’s personal and profession character, put his relatively high-profile career at risk and lasted for a year.

While the defendant denied making the posts, she offered no evidence to support her position and the court found that the posts were published by the defendant. In particular, the posts were found to have originated from the defendant’s IP address, were consistent with texts in which she took ownership of the posts, were consistent with the phraseology used by the defendant in her texts with the plaintiff and no evidence of any other person having reason to make the posts or with the personal knowledge contained in the posts was suggested.

In analyzing the posts, the court held at para. 22 (citing Vander Zalm v. Times Publishers, a Division of F.P. Publications (Western) Ltd. (1980), 18 B.C.L.R. 210 (C.A.)):

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society.

The court found that both the literal and inferential meaning of the posts was defamatory. As such, each post provided the plaintiff with a cause of action or basis upon which to sue. The court did not require detailed proof regarding how much the posts had been viewed as it could be reasonably inferred from the nature of the posts and the number of comments and viewing that they have received wide viewing.

The court reviewed that general damages for defamation can serve the following three functions:

  1. to act as a consolation to the plaintiff for the distress he or she suffers;
  2. to repair the harm to his or her reputation; and
  3. as a vindication of his or her personal or business reputation.

The court also reviewed that where malice can be proven, additional damages can result from where the defendant’s conduct has been insulting, high-handed, spiteful, malicious or oppressive which increases the plaintiff’s mental distress. Express malice was held by the court to be where the defamatory words were made:

  1. knowing them to be false; or
  2. with reckless indifference as to their truth; or
  3. for the dominant purpose of injuring the plaintiff out of spite or animosity; or
  4. for some other dominant purpose which is improper or indirect.

Malice was found by the court given the email and text exchanges that demonstrated that the posts were authored out of spite and animosity and for the purposes of hurting the plaintiff.

After considering recent cases on damages submitted by the plaintiff, the court awarded $175,00 in general damages, $25,000 in aggravated damages and $29,870 USD for the costs that the plaintiff incurred in removing the offending materials.

The decision in Rook v. Halcrow is not without some issues. Arguably the court did not go into a thorough analysis of whether the posts were true, an important part of any analysis of potentially defamatory statements. Similarly, it is arguable that the court’s quantification of damages was not as well-developed as it could have been.

Those issues aside, Rook v. Halcrow is demonstrative that substantial damages can be awarded even in the case of harm to an individual’s reputation as a result of defamatory social media posts. The more relentless and malicious the campaign, the more likely substantial damages may follow. It is strongly recommended that anyone asked to remove their potentially defamatory social media posts or who finds themselves the victim of potentially defamatory social media posts seeks appropriate legal advice.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in respect of defamation matters. 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.

Our ten most popular legal articles in 2019:

  1.   Jeremy Burgess: Breach of Contract and Repudiation: Affirm or Accept the Repudiation, Not Both
  2.   Vanessa DeDominicis: A Will for Canadian and Foreign Property
  3.   Colin Edstrom: Major Changes to Employment Standards Are Coming
  4.   Tom Fellhauer: Tax on Split Income (TOSI): Why Does the Federal Government Single Out Small and Medium-Sized Family-Owned Businesses that Provide Services?
  5.   Jeremy Burgess: Builders Liens: The Consequences of Less than Strict Compliance
  6.   Angela Price-Stephens: Top 25 Medical Malpractice Cases of a 25 Year Career – Chiropractic Manipulation
  7.   Tom Fellhauer: Income Tax: Guilty Until Proven Innocent?
  8.   Alfred Kempf: Bad Behaviour and Termination
  9.   Paul Tonita: Does Natural Death Have to be Reasonably Foreseeable for One to Qualify for Medical Assistance in Dying?
  10.   Colin Edstrom: The Perils of Probationary Periods

The BC Court of Appeal case of Meng Estate v Liem 2019 BCCA 127 confirmed that a person acting under a power of attorney owes a fiduciary duty to the donor. This is a duty of the utmost good faith where the donee (attorney) is obligated to place the interests of the donor first.

At a minimum these obligations include the attorney’s duty to account for all transactions, to exercise reasonable care (to the standard of a typically prudent person managing his or her own affairs) and not to act contrary to the interests of the donor (McMullen v Webber, 2006 BCSC 1656).

A claim for breach of fiduciary duty carries with it the staunch of dishonesty, if not of deceit, then of constructive fraud. Nocton v Lord Ashburton (1914) AC 932(HL)

The Court of Appeal overturned a finding of a breach of fiduciary duty by the acting attorney and stated that even though Mr.Liem was in a fiduciary relationship with the opposing party, not every potential breach of duty is a breach of fiduciary duty.  A cause of action may also be rooted in breach of contract or negligence.

A fiduciary may breach duties owed in contract or negligence without those breaches being transformed into breaches of fiduciary duty (Girardet v Crease & Co. (1987) 11 BCLR (2d) 36). In Meng the Court of Appeal noted “typically, a breach of fiduciary duty captures circumstances in which there is a breach of the duty of loyalty owed by the fiduciary and include circumstances involving acting in the face of a conflict, preferring a personal interest, taking a secret profit, acting dishonestly or in bad faith, or a variety of similar or related circumstances. This is not an exhaustive list.” The evidence did not support a finding that the appellant acted dishonestly or in the face of a conflict of interest, ignored the wishes of the opposing party, preferred his interest to theirs, or in any way benefited from signing the contract. The court found that he attempted to fulfill his duty of loyalty.

The court determined that the real complaint was that the attorney failed to exercise the care, diligence and skill of a reasonably prudent person by negligently failing to ascertain and thereby take into account the opposing parties current wishes, resulting in the sale that was not in their best interest because they changed their minds and then disagreed with the price.

The claim was really one of negligence, not of breach of fiduciary duty.

The Power of Attorney Act S19 Sets Out the Duties of a Power of Attorney:

  1. An attorney must:
    • act honestly and in good faith
    • exercise the care, diligence and skill of a reasonably prudent person,
    • act within the authority given in the enduring power of attorney and under any an enactment, and
    • keep prescribed records and produce the prescribed records for inspection and copying at the request of the adult.

  2. When managing and making decisions about the adults financial affairs, an attorney must act in the adult’s best interests, taking into account the adults current wishes, known beliefs and values, and any directions to the attorney said out in the enduring power of attorney.
  3. An attorney must do all of the following:
    • to the extent reasonable, give priority when managing the adult’s financial affairs to meeting the personal care and health care needs of the adult;
    • unless the enduring power of attorney states otherwise, invest the adult’s property only in accordance with the Trustee Act;
    • to the extent reasonable, foster the independence of the adult and encourage the adult’s involvement in any decision-making that affects the adult;
    • not dispose of property that the attorney knows is subject to a specific testamentary gift in the adult’s will, except the disposition is necessary to comply with the attorney’s duties;
    • to the extent reasonable, keep the adult’s personal effects at the disposal of the adult.

  4. An attorney must keep the adult’s property separate from his or her own property.

A power of attorney can be a valuable document if an appropriate trustworthy attorney is appointed.  Unfortunately, in the wrong hands a power of attorney may also facilitate fraud, theft and abuse of the donor, especially where the donor is elderly and vulnerable.


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, facing a claim brought by a beneficiary, or challenging abuse of power of attorney, 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.

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

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

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

Thus, it is extremely important to note that, if you are considering disinheriting a spouse or a child, keep in mind that when you pass away, they will still be entitled to Notice that Probate of your Estate is being applied for and will be entitled to receive a copy of your Will.

This is important information for people who are trying to plan around and estranged child who they do not wish to provide for. Many people do not realize that this child will get Notice they have passed, a copy of their Will and could, at that point, decide to contest the Estate.


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

A recent case in BC illustrates the danger of employers using restrictive covenants that are too broad. A restrictive covenant is a clause that prohibits an employee from competing with the company after termination of the employment, usually for a specified period of time and usually in a specified geographical area.

There is a different type of protection available in the form of a non-solicitation covenant. Non-solicitation covenants prevent an employee from targeting other employees of the company or customers to try and induce those employees or customers to leave the former employer to do business with the departed employee’s new employer or business.

The courts have said that clauses that provide more protection than necessary to protect former employers’ genuine business interests are generally not enforceable. It is the employer’s obligation in these cases to prove that the clause is no broader than is necessary. In a recent case, 0777792 BC Limited v. Da Costa, the employer tried to obtain an interim injunction restraining a former employee from competing with the company.

The restrictive covenant in this case was drafted to prohibit the former employee from competing with respect to all services the company was engaged in, including services that he was not engaged with. Further, the covenant had no geographic restriction. In other words, on the plain language of the clause, it applied throughout the world. The employer argued that, practically speaking, the clause only applied to the Lower Mainland where the employer carried out its business, however, the court disagreed and said that if the employer’s business was indeed restricted to the Lower Mainland the clause should have so provided. The court further pointed out that the former employee was not a manager but was a technician. Finally, the court indicated that a non-solicitation clause would have been sufficient to protect the company’s interest. The Court stated: “when a non-solicitation clause could have substituted for a non-competition clause in an employment agreement, the non-competition clause will generally be unenforceable”.

The lesson for employers who have a legitimate interest in restraining the ability of departing employees to compete is to ensure that their clauses are no broader than reasonably necessary to protect their business interests.

The style of mediation adopted by the mediator is likely to be a reflection of several factors including the mediator’s personality, training and experience and how flexible and responsive the mediator can be to the parties’ needs during the process.

The are also numerous ‘models’ of mediation. These models are designed for training mediators and to keep the mediation process on track. Each model may have a slightly different focus. A model designed to accommodate parties to litigation, where all parties are represented by legal counsel, will look and feel quite different to a community mediation model which my be designed to utilize two co-mediators.

At Pushor Mitchell LLP, Chair of Mediation Services, Angela Price-Stephens has a broad range of training and experience having trained and practiced in Canada, USA and the UK. “While it is Canadians who have the reputation for apologizing it is actually the British who make the most effective use of the apology in the context of mediation,” says Angela who practiced in the UK for 10 years before emigrating to Canada. “In the UK it is not unusual for the defendant to apologize to the claimant (plaintiff) at the beginning of the mediation. This sets the correct tone for a successful mediation, although it is by no means a guarantee of success.”

How does one measure success at mediation? Ideally all parties and the mediator are aiming for a settlement with which all parties are content. However, even where a settlement is not finalized on the day of mediation, the opportunity for the parties to come together under the guidance of a mediator often results in narrowing of the issues that remain in dispute, a deeper understanding of the other parties’ view and lays the foundation for an earlier settlement than otherwise may have been available.


Chair of the newly formed Group is Angela Price-Stephens, an experienced mediator having trained in the UK (Centre for Effective Dispute Resolution) the USA (Pepperdine University, CA) and Canada (Justice Institute of BC; Community Mediation, Ottawa). Angela is a Certified Mediator and on the Civil Roster of Mediate BC. Angela has been mediating disputes in a variety of forums since 2005.

Getting a judgment isn’t the only challenging aspect of a legal dispute; collecting on a judgment can present a whole new set of challenges. Some parties actively make efforts to judgment proof themselves by alienating their assets. While such conduct can be appropriate, in certain circumstances it can trigger the Fraudulent Conveyance Act (the “Act”). The Act serves as a tool to help creditors get to assets that debtors have inappropriately alienated from themselves.

The Act, in its entirety, is as follows:

1)  If made to delay, hinder or defraud creditors and others of their just and lawful remedies

(a)   a disposition of property, by writing or otherwise,

(b)   a bond,

(c)   a proceeding, or

(d)   an order

is void and of no effect against a person or the person’s assignee or personal representative whose rights and obligations are or might be disturbed, hindered, delayed or defrauded, despite a pretence or other matter to the contrary.

2) This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud.

The recent decision of Jasmur Holdings Ltd. v Callaghan, 2019 BCSC 1966 (CanLII) turned on whether the Act applied. The underlying dispute was the intended development of land that went sideways. The result included a claim against the defendant by the plaintiffs, investors in the project, for fraud, misrepresentation and breach of contract. The plaintiffs, seeking to get to the assets of the defendant, applied to have the transfer of the defendant’s interest in his family home to his wife for $1 declared void for breaching the Act.

The court citing the following applicable principles from Abakhan & Associates Inc. v. Braydon Investments Ltd., 2009 BCCA 521 (CanLII):

  1. the Act is to be construed liberally;
  2. an intent to put one’s assets beyond the reach of creditors is all that is required to void a transaction;
  3. a dishonest intent or mala fides is not a necessary element to avoid a transaction under the Act;
  4. intent is a state of mind and a question of fact;
  5. intent can be proven by direct evidence of the transferor’s intent as well as by inferences from the transferor’s conduct, the effect of the transfer and other circumstances;
  6. where a transfer of property has the effect of delaying, hindering or defeating creditors, the necessary intent is presumed;
  7. inadequate consideration paid for the transferred property may be indicative of fraudulent intent;
  8. it is not necessary to show the transferor was insolvent at the time of the transfer;
  9. it is not necessary for the applicant to show he/she was a creditor at the time of the transfer, future creditors are also protected; and
  10. it is no defence that the transfer was also in furtherance of a legitimate business objective.

Similarly, the court cited Prima Technology Inc. v. Yang2018 BCSC 94 (CanLII) which in turn held that circumstances which indicated fraudulent intent were set out in Banton v. Westcoast Landfill Diversion Corp. et al, 2004 BCCA 293 (CanLII) and included:

  1. the state of the debtor’s financial affairs at the time of the transaction, including his income, assets and debts;
  2. the relationship between the parties to the transfer;
  3. the effect of the disposition on the assets of the debtor, i.e. whether the transfer effectively divests the debtor of a substantial portion or all of his assets;
  4. evidence of haste in making the disposition;
  5. the timing of the transfer relative to notice of debts or claims against the debtor; and
  6. whether the transferee gave valuable consideration of the transfer.

In applying this analysis, the court in Jasmur Holdings Ltd. v Callaghan found that there was no need to imply intent as there was direct evidence of it including admissions that the intent of the transfer was to protect the home from potential judgment creditors and to protect it from litigation. Nonetheless, the court also found that the requisite fraudulent intent could be established in the circumstances of the case including the transfer being for nominal consideration, the transfer being not at arm’s length, the transfer being made in advance of the defendant entering a risky business venture and the property being the defendant’s only significant asset.

Beyond the most immediate benefit of putting assets back in the hands of debtors which a judgment can then be enforced against, establishing that a conveyance was in breach of the Act also has consequences in respect of bankruptcy and insolvency proceedings. Under the Bankruptcy and Insolvency Act debts or liabilities arising out of fraud are not discharged as a part of bankruptcy or insolvency proceedings. Similarly the automatic stay of proceedings that ordinarily applies when someone enters bankruptcy or a consumer proposal can be lifted in respect of fraudulent conveyance proceedings.

Parties must very carefully plan their arrangements so as to avoid the application of the Act and having any planning to limit their exposure to litigation be declared void. Similarly, parties that find themselves with a seemingly hallow judgment ought to consider whether the judgment debtor has engaged in any conduct which might trigger the Act and make additional assets available for seizure and sale. Good legal advice can assist in both respects.


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

Recently, the BC Supreme Court came out with a case that deals with the question of the impact of retirement on spousal support and clarifying what is considered early retirement.

In McPherson v. McPherson 2019 BCSC 933, Mr. McPherson was 60 years old and had been working as a building inspector for various municipalities since 1991.  He and Mrs. McPherson were married just under 20 years before separating.  At the time they met Mrs. McPherson had a child from a previous relationship that the parties raised and they also had a son together. At the time of the court hearing, both children were adults and financially independent.

Their marriage was described by the Judge as a fairly traditional marriage where Mr. McPherson worked outside of the home and earned most of the income and Mrs. McPherson was the primary caregiver for the children and worked from time to time in lower paying employment.  She was 46 years old when the marriage broke down. During their marriage Mrs. McPherson had worked as a hairdresser and held down other jobs from time to time Mr. McPherson at the time of separation was earning approximately $56,000 per year for a municipality as a building inspector.  Post-separation Mr. McPherson’s income increased to approximately $112,000 a year, at which point in time he retired at age 60.

Mr. McPherson had been paying spousal support since the parties separated in 2004 and he sought to terminate spousal support on the basis that he felt he had fulfilled his obligation of support to his former wife as he had been paying spousal support for 15 years and his retirement meant they would both be receiving his pension from employment (she was entitled to and received a portion of his pension). His position at the hearing was that the amount Mrs. McPherson would receive from his pension once he retired would more than compensate for the termination of spousal support.

The Judge commented that retirement at 60 years of age was voluntary and early retirement. Mr. McPherson did not have compelling health issues necessitating a retirement, nor was there any corporate restructuring or lay off from his employer. The explanation for the timing of the retirement was simply for lifestyle reasons and that Mr. McPherson wished to spend more time on his leisure pursuits.

The Court found that his voluntary retirement was therefore not a basis for terminating spousal support and that the fact that Mrs. McPherson was now receiving her portion of his pension was not relevant as the pension division was part of the property division and not a replacement for spousal support.

Mrs. McPherson did by consent agree to some reduction of spousal support and the Judge ordered that the monthly payments would terminate on the first month following Mr. McPherson’s 65th birthday.

There are a number of cases which have confirmed the same principles around early retirement and it is well established in the law now that if you have had a lengthy marriage and have a spousal support obligation after separation, do not assume that you can voluntarily retire and that that spousal support will automatically be terminated or reduced.

Decisions around retirement in particular when you are paying spousal support need to be made very carefully and take into consideration the case law surrounding compensatory spousal support.

These two, very different incapacity planning documents, are often confused. An Enduring Power of Attorney is the document of choice for most people who wish to plan for the management of their financial affairs in the event of incapacity.

An Attorney must act honestly and in good faith in relation to the Donor’s legal & financial affairs. An Attorney must exercise the care diligence and skill of a ‘reasonably prudent person’ and act within his/her authority granted under the Enduring Power of Attorney. A paid caregiver is specifically prohibited from acting as an Attorney for the adult.

A Representation Agreement allows you to appoint a person to make decisions on your behalf in relation to your health care matters, not your financial affairs. The person or person(s) you appoint must follow the wishes that you expressed while capable. This gives you control over who will be acting on your behalf in relation to your health care. It allows you to plan for the following, for example:

  • Who you would like to make your health/medical/personal care decisions for you in the event that you are incapacitated?
  • What types of heath care treatments you would consent to or refuse if a healthcare provider has recommended them?
  • Under what circumstances would you consent to or refuse these types of treatments?
  • What type of extended health care facility would you prefer to live in, in the event that you are unable to be cared for at home?

Although they are very different documents, they are both extremely important to have in place.


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

In my previous article, Prejudgment Garnishing Orders: Getting it Right, I discussed how pre-judgment garnishment is available to a party that is owed a debt so as to intercept funds intended for the party they are claiming against. I also discussed how that remedy is considered extraordinary and requires strict adherence to certain requirements.

The recent case, Opus Consulting Group Ltd. v Ardenton Capital Corporation, 2019 BCSC 1847 (CanLII), focused on the level of disclosure required to support and sustain a pre-judgment garnishment order. In Opus Consulting, the plaintiff claimed $186,200.36 for the provision of computer hardware provided and not paid for. The defendant, for its part, alleged that it followed the payment instructions provided by the plaintiff, but that those instructions were seemingly compromised by a “phishing” scam. The result being that the defendant’s payment was alleged to have been intercepted by a third party and such payments had not been recovered.

The defendant informed the plaintiff that it had made payment per the instructions it received, concerns with the potential phishing scam and the defendant’s position that the issues originated on the plaintiff’s end.

The plaintiff denied responsibility for the improper email instructions, demanded full payment of its invoices and commenced litigation when the defendant refused to effectively make payment twice. In commencing its claim, the plaintiff also sought and obtained a pre-judgment garnishment order for the full amount of its claim, served that on the defendant’s bank and obtained the full amount of its claim from the defendant’s bank to be held in court.

Upon learning of the garnishing order, the defendant applied to set the order aside on the basis that the affidavit in support of the order was incomplete and failed to detail the parties’ respective positions and issues related to the apparent phishing scam.

The court held that the obligations of a party seeking garnishment go beyond the minimum requirements of the forms in support of the application for garnishment and included the obligation to disclose the defendant’s position that it had made payment on the alleged debt. The court found that the defendant’s position was relevant and material to the question of whether the garnished funds were justly due and owing. Further, that the issues concerning the phishing scam raised the question of whether there was any debt at all.

The court found that the plaintiff was aware of the issues concerning the phishing scam before it sought pre-judgment garnishment and failed in its obligations to satisfy the broad duty of disclosure of information which is relevant and material to the contents of the affidavit in support of the garnishment order.

The court set aside the pre-judgment garnishment order for the reasons detailed above as well as on the basis that it would be just in all the circumstances to do so in consideration of the arguable defence that the plaintiff might ultimately be responsible for its compromised email system.

Opus Consulting is illustrative of the need to provide full and frank disclosure of the background leading to a request for a pre-judgment garnishment order. The standard of disclosure is high so as to ensure that pre-judgment garnishment is only ordered in appropriate situations.

Opus Consulting is illustrative of the need for parties to ensure that they properly consider whether pre-judgment garnishment is an appropriate remedy, that they identify proper parties to garnish and that materials prepared in support of pre-judgment garnishment are carefully prepared in order to ensure that the order is granted and sticks if challenged. Competent legal counsel experienced in pre-judgment garnishment can assist in each stage of the process.


Jeremy Burgess is a litigation associate at Pushor Mitchell with broad experience in litigation including in pre-judgment garnishment and other 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.

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 pursing 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 article we review the unusual case of Valerie who suffered a devastating brain injury as a result of a missed diagnosis of fungal meningitis. In fact, not only was the diagnosis missed, she was misdiagnosed and treated with steroids which likely exacerbated the extent of her brain injury.

Valerie was a 34-year-old mother of one young daughter (aged 4).  She was single and worked full time in engineering.  She had a headache for several days before the headache become so bad she took herself to emergency at 2 am.  She was examined by the emergency room physician who diagnosed migraine.  She was given Maxalt and sent home.

The pain improved for a few hours but the second dose of Maxalt was not effective.  The pain became too much to bear and so she returned to the emergency department.  Her diagnosis of migraine was reaffirmed by a different emergency room doctor and she was given IV morphine for immediate relief and given a prescription for more Maxalt and naproxen.

Over the course of the next 4 weeks Valerie attended the emergency room another five times. Her signs and symptoms increased to include nausea and vomiting and photophobia. Over the course of the seven emergency room visits her records documented that she had been prescribed or administered IV morphine, IV Demerol, Maxalt, naproxen, Frova and Zomig to treat her migraine.  Not one doctor recognized that this pattern of migraine or repeated attendance at emergency was highly unusual for this patient.

On the seventh visit to emergency Valerie was told again that she had a migraine and that she was simply ‘doing too much’ and ought to consider cutting back her hours, or taking time off work.  The migraine was due to stress.  By this time Valerie was so desperate for help, so worn down by the unremitting pain that she was tearful. She was told she was depressed and anxious and a referral was made to a psychiatric outpatient clinic and sent home with more painkillers.

Valerie’s mother, Dorothy, very concerned about her daughter, flew across the country to be with her. Shortly after Dorothy arrived, Valerie collapsed and was taken to hospital by ambulance.  Dorothy attended at the hospital and essentially demanded that her daughter be admitted and tests run to find out what was wrong.  Valerie was admitted.  She was not offered a lumbar puncture and a CT scan (which was the standard of care) but sedated and visited at the bedside by the on-call psychiatrist.

On day three of her hospital admission Valerie suffered blurred vision, a stiff neck and a likely seizure.  She was then diagnosed with meningitis and treated with a combination of intravenous drugs, including a steroid to reduce the swelling on her brain.

Still no lumbar puncture or CT scan was performed.

Valerie’s condition appeared to improve with the course of treatment, which was regarded as confirmation of the correct diagnosis.  What actually happened was that the steroids were effective in reducing the swelling on the brain which reduced the head pain.  What the steroids also did however was to suppress Valerie’s immune system and permitted the, as yet undetected, fungal infection in her brain to advance at a faster rate.

Valerie was discharged from hospital after a 10-day admission.  She collapsed within 24 hours of discharge.  Fortunately for Valerie her mother was with her and it was Dorothy who insisted her daughter be taken to a different hospital.  On arrival it was recognized Valerie’s condition was critical.  The first test that was undertaken was an emergency CT scan which demonstrated brain pathology, followed by a lumbar puncture.  The lumbar puncture had a high opening pressure and the CSF fluid was cloudy and orange (rather than clear and colourless).

Testing on the CSF fluid confirmed the relatively unusual diagnosis of fungal meningitis and the appropriate treatment was commenced.  Unfortunately given the advanced stage of the disease Valerie had already sustained permanent brain damage.

During examinations for discovery, the doctor who diagnosed meningitis stated that he had assumed it was viral meningitis and wanted to spare Valerie a lumbar puncture.  Meningitis is the inflammation of the lining, or meninges, between the brain and the skull.  The inflammation can be used by a virus, bacterial or fungal (and other rarer infections such as parasitic).  A bacterial meningitis would have already proved fatal.  A fungal infection was never considered.

Over the next two years Valerie required more than 60 lumbar punctures to monitor the status of the fungal infection.  The damage sustained also interfered with the body’s natural mechanism to produce and drain CSF which caused regular bouts of increased intracranial pressure which caused severe headaches.  Valerie later had a shunt placed to allow the CSF to drain.

Fungal meningitis in Canada is relatively rare.  Angela used her connections to locate a world expert on fungal meningitis based out of Australia, who just happened to be at a conference in Toronto at the time of her call.  The expert was able to confirm that had a timely diagnosis been made Valerie would have likely made a full recovery with only a modest requirement for follow up in the 6 months post treatment to confirm the infection had been eradicated.  It was also confirmed that the fungal infection does not have to be extensive to be detected in the CSF through a lumbar puncture.  An early CT and lumbar puncture would have made a definitive diagnosis and ensured appropriate treatment.

The nature and the extent of losses sustained by Valerie as a result of the wrong diagnosis was devastating.  The brain damage impaired her ability to live independently and parent her child.  She was unable to return to work and is likely never to work again.

Valerie’s claim was settled at mediation.


Angela Price-Stephens is an English and Canadian lawyer who focuses on serious personal injury arising from the negligence of others, mostly health care professionals.  Of her 25-year career approximately half of that time has been spent defending heath authorities, doctors and other healthcare professionals.  That experience is now used exclusively for the benefit of injured patients.

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

What does “Estate Administration” actually mean? I often get asked this by my clients. Whenever someone passes away, his or her estate needs to be essentially “managed”. Estate administration basically involves gathering in the assets that the deceased held in his/her name, paying their debts, dealing with creditors, paying their taxes and dealing with CRA and then distributing the remaining assets.

Probate is generally only required where the registered authority that holds an asset in the deceased’s sole name (for example ICBC for vehicles, the bank for your money and the BC Land Titles Office for your real estate) will not accept instructions from the Executor to transfer those assets without first confirming the Executor’s authority to act on behalf of the deceased (which is the authorization from the Court that “Probate” provides).

From the date of death, to the due diligence process (gathering information on the deceased’s financial affairs/landholdings) to the actual filing of Probate with the Court can take anywhere from a month at best, to several months (especially if the deceased has a large portfolio of assets). Once Probate is applied for with the Court, it usually takes around 2 months for the Court to grant Probate. After Probate is granted, (say around 4 – 6 months after the date of death), there are then waiting periods before an Estate can be distributed to allow interested parties to make claims. Taxes also have to be dealt with and a final Clearance Certificate for the Estate should be issued by CRA. Estates with complex assets or disputes can take much longer to administer (several years).

So the Administration of an Estate really depends on the complexity of assets to administer.


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

A recent post by Kelowna Now highlights the alarming rate at which sexual assault reports are being dismissed as “unfounded” by Kelowna RCMP. This is just one of the many challenges of pursuing justice and accountability for survivors of sexual assault through the criminal justice system. For good reason, the standard of proof for a criminal conviction is very high: the judge or jury must be satisfied “beyond a reasonable doubt” that the accused is guilty of the offence. The standard is not “absolute certainty”, but it is close. This is because the consequences of a criminal conviction are so serious that, before the power of the state is deployed to punish a person, the state must prove its case far past probability, approaching near certainty.

After an investigation, police decide whether there is enough evidence to recommend that charges be laid and, if so, Crown prosecutors decide whether there is a “substantial likelihood of conviction”[1] before approving charges. Police, Crown, and the judge or jury will have to scrutinize the credibility and reliability of any evidence lead supporting charges. Unless there is video or other independent corroborating evidence, the most important evidence will be the victim’s live testimony in court. This puts the victim – called a complainant in criminal proceedings – under the spotlight. The circumstances are carefully scrutinized for the possibility that the complainant is either mistaken or is being untruthful. The experience can be difficult, if not traumatizing, for the complainant if after all of their efforts the accused is acquitted.

It is no wonder, then, that many survivors of sexual assault choose not to pursue charges through the criminal justice system.

For some, the civil courts may offer a more forgiving venue. In a civil proceeding the individual who was assaulted – now called a plaintiff –  files a claim for monetary damages to compensate them for their loss. The defendants named in the lawsuit might include the individual who committed the assaults, but also any other people or organizations that share responsibility such as schools, employers, sports teams, and government entities. The standard of proof in a civil proceeding is much lower than the criminal standard: the plaintiff must prove their case “on a balance of probabilities”. This means they must satisfy the judge or jury that it is more likely than not that the assault took place as alleged. While the plaintiff will still have to testify in court as to what happened and while they will still be scrutinized for evidence that they are mistaken or being untruthful, the civil standard is a lower hurdle to pass than that required for a criminal conviction.

There are other benefits to proceeding with a civil claim for damages: by naming those around the perpetrator that should have stepped in to protect the plaintiff, such as coaches, foster parents, employers and government agencies, it’s possible to extend accountability and, hopefully, promote change within those organizations. The parties also have more flexibility to craft a negotiated resolution to the claim outside of court, which might include an acknowledgement and apology for what occurred, a financial award for the plaintiff, mandatory training or counselling for the defendant, and a commitment to institutional change. While most civil claims must be initiated within two years, there is currently no limitation period applicable to claims of sexual assault.[2] It is not uncommon for adults who experienced sexual assault as a child to pursue justice many years later, as adults.

Whether a person chooses to report a sexual assault to police or to bring a civil lawsuit, or to do both, or neither, there are supports available. Victim Link BC is a 24/7 toll-free, confidential service that provides information, referral services, and crisis support to victims of sexual violence anywhere in BC. The Crime Victim Assistance Program provides financial assistance and benefits, including counselling, to victims of sexual assaults whether or not they choose to report to police. It is imperative that those who have experienced sexual assault access treatment and support to help them recover from and cope with the effects of what occurred.

If you or a loved one has experienced sexual assault and would like to discuss pursuing justice through the criminal justice system or through a civil claim for damages, or both, please get in touch with us. We would be pleased to discuss the specifics of your case in a confidential, non-judgmental, and trauma-informed setting and to help you decide how to proceed.


[1] in BC – the standard is lower elsewhere in Canada.

[2] Limitation Act, SBC 2012, c 13, s 3(j).

The British Columbia Law Institute released its “Consultation Paper on the Builders Lien Act” (the “Consultation Paper”).

The Consultation Paper was created by a group of construction and insolvency law practitioners and recommends updates and improvements to the current Builders Lien Act, S.B.C. 1997, c. 45 (the “BLA”) to the Provincial Government.

It makes a number of tentative recommendations that would significantly change builders lien practice in British Columbia.

Some of the significant proposed changes include:

  • Increasing the minimum amount for which a claim of lien may be filed from $200 to $3,000;
  • Requiring only substantial compliance, not strict compliance, concerning the form of a claim of lien;
  • Extending the application of the BLA to apply to tenures under the Petroleum and Natural Gas Act, Coal Act, and Land Act;
  • Permitting a claim of lien to be filed against unregistered leasehold interests;
  • Expressly stating that “demolition” is lienable work, while expressly stating that extractive operations (such as mining) is unlienable work;
  • Requiring the Land Title Office to notify a registered owner of land that a claim of lien has been filed against his title;
  • Removing the distinction between projects involving a head contractor and those not involving a head contractor for the purpose of determining whether the 45-day lien filing period has been triggered;
  • Eliminating the concept of the “holdback lien” that arose as a consequence of the Court of Appeal’s decision by Shimco Metal Erectors Ltd. v. Design Steel Constructors Ltd., 2003 BCCA 193;
  • Shortening the holdback period from 55 days to 45 days to correspond to the expiry of the 45-day lien filing deadline;
  • Only requiring the retention of holdbacks relating to payments made or work performed in the preceding 12 months, rather than over the entire duration of a contract;
  • Authorizing the court to cancel claims of lien by way of “without notice” application if substitute security equal to the full amount of the claim of lien is provided;
  • Providing that an owner is not a necessary party to a builders lien enforcement proceeding where security has been posted, unless the owner posted said security;
  • Eliminating the one-year limitation period applicable to trust claims under the BLA such that the basic two-year limitation period prescribed by the Limitation Act, S.B.C. 2012, ch. 13 would apply;
  • Strengthening the anti-abuse provisions of the BLA;
  • Eliminating the requirement for adherence to the “local venue rule” which requires that lien enforcement proceedings be commenced in the municipality or judicial district where the land it concerns is located, unless the court otherwise orders;
  • Expanding the class of those eligible to issue a 21 day notice to include anyone who has provided security for a claim of lien; and
  • Reconciling some perceived inconsistencies regarding arbitration and lien enforcement procedures.

The above list is not exhaustive. There are many other significant proposed changes aimed at (a) clarifying difficult interpretative issues which have not been resolved by the courts, and (b) streamlining the statute by eliminating cross-referencing among the BLA and other statutes.

A full list of tentative recommendations appears starting at pg. 189 of the Consultation Paper which is available here: Consultation Paper on the Builders Lien Act

 

At Pushor Mitchell, we are proud to offer a wide range of legal services to individuals, businesses and organizations throughout our community and we are happy to be the ‘first call’ when a legal need arises. We also recognize that some issues can best be resolved without retaining one of our lawyers, and we are committed to promoting access to justice by referring people to alternative resources where appropriate.

    • Access Pro Bono (http://www.accessprobono.ca) operates the Lawyer Referral Program, which helps members of the public identify their legal needs and direct them to a lawyer for a free half-hour consultation. They also offer a number of legal services to individuals and non-profit organizations of limited means, including Residential Tenancy matters and Employment Standards matters.

 

    • The Community Legal Assistance Program (https://clasbc.net/) operates several programs throughout the province, including a Community Law Program for housing security, human rights, mental health rights and workers’ rights; a Mental Health Law Program for patients detained involuntarily pursuant to the Mental Health Act or to those subject to the Mental Disorder provisions of the Criminal Code; and a Human Rights Clinic for cases before the BC Human Rights Tribunal.

 

    • The Legal Services Society’s Legal Aid program (https://lss.bc.ca/ ) helps people with lower incomes with family law matters, child protection issues, criminal law representation, and help for refugees or deportation issues.

 

    • The Civil Resolution Tribunal (https://civilresolutionbc.ca/) is an online tribunal that is user-friendly and accessible, and may be appropriate for small claims disputes up to $5,000, strata property disputes, and shared accommodations disputes. While the CRT also adjudicates some motor vehicle injury claims, we strongly suggest that those with ICBC claims obtain advice from a lawyer before relying solely on the CRT process.

 

  • The Office of the BC Ombudsperson (https://bcombudsperson.ca/) investigates complaints about unfair administrative actions in local and provincial public authorities, such as hospitals and health authorities, municipalities and local governments, and schools and universities.

If you have a legal issue and you’re not sure where to go, give us a call. We would be happy to help you find the legal help that you need, whether that’s with one of our many experienced lawyers or with one of the alternative services available to ensure that justice is accessible to everyone.

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 fourth of this series of articles we look at the case of Tom, a 32-year-old corrections officer who sustained closed (not piercing the skin) fractures to his lower left leg (tibia and fibula) in a cross-country skiing accident. The failure to diagnose and treat acute compartment syndrome caused the loss of the entire muscle in the lower leg leading to ‘drop foot’, reduced ability to walk and chronic pain.

What is Acute Compartment Syndrome?

The muscles within the lower leg are enclosed within four separate ‘compartments’.  The compartments are made up of relatively inelastic fibers. Acute compartment syndrome occurs when the pressure of the tissue within a closed compartment is greater than the pressure in which the blood is perfused through the tissue.  The pressure increases due to trauma to the leg including broken bones, bleeding into the compartments and swelling. The blood supply is essentially ‘squeezed’ off to the tissue.  Over a period of hours increasing damage is done to the tissue, including nerves.  After a certain period of time without blood the tissue dies. The critical time period, after which death of tissue occurs, is approximately 6 hours.

Failure to Recognize the Risks

Tom was a fit and very active young man when he sustained the fractures to his lower leg.  He was attended to quite quickly on the mountain side and taken by ambulance to the local hospital in the Interior of BC.  He arrived at the hospital within 2 hours of the accident. There was a significant delay in Tom being assessed by the doctor in the emergency department. The emergency room physician called for an orthopedic surgeon and Tom was taken into surgery to reduce (put back into place) the fractures.  Despite the reduction of the fractures the increasing level of pain reported by Tom after surgery ought to have been a red flag to the doctor and nursing staff that acute compartment syndrome was developing. Tom was kept in hospital overnight for observation, but the observation ordered was inadequate. There were very limited nursing records of the appearance of the leg (including colour and swelling) or pulses at the ankle or pain level. The defendant nurses gave evidence at discovery that they ‘charted by exception’ meaning they would only note a sign or symptoms if it was outside what was expected in the circumstances.  Angela argued that ‘charting by exception’ is not appropriate in a post-surgical situation and in any event such a charting technique is only acceptable when the hospital has an appropriate protocol in place authorizing such a practice. No such protocol was in place.

Premature Discharge from Hospital

The following afternoon the orthopedic surgeon gave a verbal order authorizing discharge, without undertaking a bedside review. When this order was conveyed to Tom he asked not to be discharged.  He was in too much pain. The extent of the swelling to Tom’s lower leg, increasing pain and numbness to his foot where not properly documented or communicated to the doctor.  Tom was sent home with oral painkillers with follow up to the orthopedic clinic, despite his wish to remain in hospital. A nurse, identified during the proceedings, told him pain after surgery was normal and not to make a fuss.

In the first few hours at home he called the hospital twice trying to obtain more effective pain relief.  He described the pain as unbearable. A review of the chart confirmed that Tom had been on an intravenous Patient Controlled Anesthesia (PCA) right up to the time of discharge.  There had been no weaning of the PCA and no proper pain control established prior to his discharge.

Tom called a friend and neighbour to help him.  The friend was also a nurse and on arriving at his home recognized that the pain was excessive for a post-operative condition. She also gave evidence as to the abnormal swelling and paleness of the foot and lower leg. The foot was cool to the touch. She recognized the medical emergency and called an ambulance to take Tom back to the hospital.  On arrival at emergency Tom was once again falsely reassured and given intravenous morphine.  It was late that same evening that the acute compartment syndrome was recognized.

The only definitive treatment for acute compartment syndrome is cutting into each of the affected compartments (fasciotomy) along the length of the lower leg to reduce the pressure in the compartment.  By the time this procedure was undertaken in Tom’s case more than 36 hours had elapsed since the original surgery.  An extensive amount of muscle and soft tissue had died.  The dead tissue was removed and the wounds left open to allow the full extent of the necrotic tissue to declare itself. Further debridement (removal of dead tissue) was required.  By the final debridement no muscle in the lower leg remained.

A common complication of a delay in treatment of compartment syndrome is infection.  Tom suffered extensive infection which spread to his bone (osteomyelitis). It was resistant to treatment and likely contributed to the extent of soft tissue lost.

Tom was away from work for 5 months and had a graduated return to work over a 3 month period. Rehabilitation was limited in that the complete loss of muscle in this lower leg meant he was unable to control his foot and ankle.  He required a device to keep his foot in position to assist him walking. His gait was permanently affected which caused lower back and hip pain as his body compensated for the pronounced limp.  He had chronic pain in his lower leg which remained a daily experience almost 4 years after the injury and was likely permanent.

Through expert evidence Angela demonstrated that acute compartment syndrome ought to have been a recognized, if not anticipated, complication of trauma to the lower leg.  Both the doctor and the nurses failed to recognize this risk and to take steps to monitor for the condition.  Nursing notes were inadequate to establish what monitoring had been undertaken. There was a breakdown in communication between the doctor and staff nurses with regard to Tom’s condition in the post-surgery phase and at discharge.  It was a breach of standard of care for the doctor to discharge Tom without a bedside assessment and so soon after surgery, given the ongoing risks of developing acute compartment syndrome.

The weight of the evidence against the doctor and health authority, including the nurses, was significant.  It was established that had the acute compartment syndrome been recognized and treated in a timely manner, Tom would likely have recovered from his fractures without permanent pain or dysfunction.

A further expert evidence was obtained to establish the full extent of the losses suffered by Tom as a result of the negligent delay in diagnosis and treatment of the compartment syndrome. This included the loss of past wages, the reduced capacity to earn an income and cost of future care.

The case was settled on favourable terms at mediation.


Angela Price-Stephens is an English and Canadian lawyer who focuses on serious personal injury arising from the negligence of others, mostly health care professionals. Of her 25-year career approximately half of that time has been spent defending health authorities, doctors and other healthcare professionals. That experience is now used exclusively for the benefit of injured patients.

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

It is one of the most common scenarios in construction litigation: work has completed, the contractor has rendered its final bill and an owner refuses to pay on the basis that there were delays or that there are defects or deficiencies with a contractor’s work. While contracts can and do provide allowances for such situations, that is not always the case. A stalemate can often follow disagreement and litigation can then often follow a stalemate. Such was the case in the recent decision of Can-West Development Ltd. v Parmar, 2019 BCSC 1573 (CanLII).

The Plaintiff and contractor, Can-West, sought an order for $351,530, the amount it said was owed by the owners, the Parmars, for construction services in respect of the redevelopment of a property. Among other things, Can-West claimed that there had been an oral agreement that certain aspects of Can-West’s work were to be considered “extras”, which increased the total project cost and the amounts Can-West claimed. The Parmars denied the existence of the oral agreement.

The Parmars counterclaimed for $217,968 for alleged deficiencies in Can-West’s work. The Parmars had obtained an inspection report which identified hundreds of issues with Can-West’s work. While Can-West purported to repair those issues, the Parmars alleged Can-West’s work was delayed and that there were remaining deficiencies.

The court first turned its mind to whether there was an agreement in place and, if so, what the terms of the contract were. The court found that there was an agreement for the construction of a duplex, an infill house and a garage largely on the terms asserted by the Parmars. The court determined these terms consistently with written agreements, communications and all the circumstances and specifically rejected the oral agreement or adjustment alleged by Can-West.

The court was required to engage in several exercises in contractual construction, all of which carried with them the risk of the contract being interpreted in a manner other than in accordance with the expectations of one or both of the parties. Each instance in which the court had to construct a term of the contract represented real risk to both parties and substantial legal costs associated with related arguments and evidence gathering. A clear contract from the outset of the contractual relationship would likely have saved both Can-West and the Parmars substantial uncertainty and expense.

With respect to damages, the court held as following at para. 106: “As a general rule, a plaintiff who has purchased the services of a builder is entitled, as far as possible, to receive the product bargained for and is, therefore, entitled to compensation in damages representing the cost of correcting or completing any unfinished work or deficiencies, or in some cases, a set-off against any damages awarded under the contractor’s claim: 0867740 B.C. Ltd. v. Quails View Farm Inc.2014 BCCA 252 (CanLII).” The court went on to analyze the various types of damages claimed by the Parmars in relation to defective or deficient work including in applying a contractual delay penalty.

The court ultimately determined that that proper price of the contract was $803,250 plus GST. The Parmars had paid $585,282 of that amount, leaving a difference of $217,968 plus GST. Accordingly, the $217,968 plus GST became the maximum claim that Can-West could establish. Again, the court rejected the alleged oral agreement in respect of “extras” or that Can-West was entitled to the $351,530 it claimed.

From the $217,968 plus GST that could be owing, the court then had to determine if the Parmars had any claims for set-off, damages or breach of contract to be subtracted. Based on its earlier findings that there were defects, deficiencies and delays, the court found that the Parmars were entitled to $137,250 in damages and delay penalties. As a result, the Court found that the total owed to Can-West was $80,718 plus GST, being $217,968 plus GST, less the $137,250.

Can-West Development Ltd. v Parmar is a multi-faceted cautionary tale. Arguably, both sides engaged in conduct which put their interests at risk. The case underscores how important it is for parties to a contract to ensure that their contract is clear, that any terms or alterations to the contract be clearly recorded and agreed to in writing and that a contract ought to consider and provide for what is to occur in various scenarios likely to be encountered during the life of the contract.

In failing to provide its work in a good and workmanlike fashion, failing to complete its work when required and failing to properly correct all defects and deficiencies, Can-West was exposed to substantial claims against it, which ultimately reduced its entitlement to payment substantially and also likely resulted in substantial delays in obtaining the payment it was entitled to. By withholding payment without agreement to do so or there being contractual terms allowing for such holdback, the Parmars risked being held in breach of contract, which could relieve Can-West from its obligations to conduct remediation of its deficient work.

Both parties were left with the possibility that they could not recover legal costs and disbursements given the mixed findings of the court and their respective breaches of legal and contractual obligations. It was also likely the case that the issues in dispute could have been substantially reduced, along with associated legal expenses, by the parties more closely adhering to their legal and contractual obligations or otherwise starting with a better, clearer contract.

If there is a concern about deficiencies or defects at the end of construction, the parties can negotiate a contractually agreed upon holdback in respect of such issues rather than an owner exposing themselves to claims for payment or loss of entitlement to court costs in an action to follow. If one party to a contract finds the other failing in their duties, the non-breaching party does no favours to themselves by also breaching the contract to “get even”.

Some suggested additional reading related to the above includes the following other articles I have written:


Jeremy Burgess is a litigation associate at Pushor Mitchell who assists clients in contractual disputes, especially concerning construction disputes. If you have any questions about any such matters, 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.

Usually tax laws apply to everyone.  However, in 2017, the Federal Government introduced a special tax on dividends that treats family-owned private businesses that provide services more harshly than other businesses that sell goods.  The Federal Government said this new tax was to create “Tax Fairness for the Middle Class”.  But is it fair that the Federal Government imposes higher tax rates just because of what kind of business you are in?

I have practiced tax for over 30 years.  I have never seen another situation where, all other factors being equal, you are taxed differently simply because of the business you are in.

Our tax system has progressive rates which means that the more you make, the higher the rate of tax you pay.  This has been largely accepted in Canada as a matter of social policy and is fair.

We also understand that capital gains are taxed differently than dividends and dividends are taxed differently than salary.

But, if two individuals, both of the same age and circumstances, earn the same amount of the same type of income, we have always had a system that treated both individuals equally.  That was until 2017.

In 2017, the Federal Liberal Government introduced a very complicated tax on split income (TOSI) that changed this basic principle.

Under the new TOSI rules, some people will pay the regular rates of tax and some people will pay the highest possible rate even if they earn exactly the same amount.

Example:  Company A is a small family-owned business that builds houses and sells the finished houses to its customers.  It is considered to be selling something other than its services.  Now imagine that Company B is the same small family-owned business, but instead it builds houses for customers who hire the Company to build the houses.  It doesn’t sell houses.  It provides house building services.

Imagine both Company A and Company B make exactly the same profit in 2019, let’s say $250,000.  Unfortunately for the shareholders of Company B, they are subject to a much more stringent test than the shareholders of Company A (see paragraph (a) in the definition of “excluded shares” in s.120.4(1)).

The Federal Government said is was opposed to income splitting for fairness reasons.  But instead the law treats businesses that provide services more harshly than businesses that sell goods.

That is unless your business is large enough to have its shares traded on a stock exchange.  Then there are no rules preventing income splitting (see paragraph (a) in the definition of “split income” in s.120.4(1)).

So what is the Federal Government trying to achieve?  The “fairness” behind this tax change is very difficult to understand.  But the result is clear:  income splitting is ok if your family business is listed on a stock exchange but not ok if it is too small to be listed.  And if your family business is small, you are favoured if you sell goods rather than provide services.

Government data shows that small and medium-sized private businesses (SME’s) employ more Canadians than large publicly traded corporations.  The data also shows that businesses that provide services are the primary drivers of our current economic growth.  So what is behind this tax?  What does “Tax Fairness for the Middle Class” really mean?  Are small family-owned businesses not part of the middle class?

Let me know your thoughts.

Whenever property is ‘Co-Owned’ by anyone other than a husband and wife, I always strongly recommend that a Co-Ownership Agreement be put in place. Family cabins at the lake, Big White ski condos, property inherited by estranged beneficiaries and even residential homes where parents are on title with their child/partner in a two-suite home, are all VERY common scenarios where title can potentially be held by several people. These people may, at some point in the future, have different needs/wants in relation to the jointly owned property. In addition to different needs/wants in relation to the property, they may no longer have an amicable relationship with one another – a recipe for disaster.

Joint ownership of property is extremely common. If the parties wish to avoid the myriad of problems that may await them in the future, it is best to set out in writing how and when the property may be sold.

A Co-Ownership Agreement will set out the interests held, the decision making in relation to the land, how expenses are paid, who uses the land and when, the distribution of the proceeds of any sale, the right of first refusal of Co-Owners to buy each other out in the event that one wants to sell and so on and so forth. Essentially, this type of Agreement can address any number of unique issues that may be foreseen in relation to a specific property.

The best time to enter into a Co-Ownership Agreement is of course at that outset of the co-owning relationship, when it is most likely that all parties want the same thing and get along. They are excited for what the future holds, rather than antagonized by the other Co-Owners. That being said, it is never too late. It is much better to define interests amicably in a Co-Ownership Agreement, than rely on the Court process in the event of a breakdown of the co-owning relationship. In the absence of a settlement or a written agreement governing the situation, the only recourse is the Courts.


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

Introduction

I have been following the evolution of medical assistance in dying in Canada since before the Supreme Court of Canada released its reasons for judgment in R v Carter, 2015 SCC 5, widely referred to simply as the Carter decision. Following the Carter decision, the federal government amended the Criminal Code in 2016 to permit medical assistance in dying (“MAID”) in certain circumstances. These amendments were praised by some and criticized by others from the moment they were enacted. Some argue that they go too far and put certain vulnerable individuals at risk while others argue that they are too restrictive.

The recent case of Truchon c Procureur général du Canada, 2019 QCCS 3792, is the latest challenge to the MAID laws in Canada. The Court struck down the requirement that natural death be “reasonably foreseeable” on the basis that it violates both sections 7 and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) and cannot be saved under s. 1. The Court in Truchon also considered breaches to the Charter under a provincial law in Quebec relating to MAID. Though that part of the Truchon decision is important to those residing in Quebec, I will limit this article to the impacts on the federal law.

Through the 770-paragraph decision, Madam Justice Baudouin includes a great deal of history regarding MAID in Canada, sets out the evidence of the numerous experts and others who testified at trial, considers data from several jurisdictions and explains in detail her analysis and decision.

I am greatly simplifying matters in this article and this should not be considered an exhaustive summary of the Court’s decision.

Facts, Argument and Analysis

There are two applicants in this case. Mr. Truchon and Ms. Gladu. I will not go through the details of their medical conditions, but it is important to note that they both have very serious conditions that impact every part of their lives. Mr. Truchon was 51 years old at the time of the trial and was born with a condition that left his entire body, other than his left arm, paralyzed. In 2012, his condition worsened, and he lost the use of his left arm, becoming completely paralyzed. Notwithstanding his condition, until 2012 he lived a full and independent life. Some examples include that he obtained an undergraduate degree, was involved in wheelchair ball hockey, played chess regularly and swam. However, since 2012, when his condition worsened, he has been in constant pain and can no longer live alone.

Ms. Gladu was 73 years old at the time of trial. She is partially paralyzed and has severe scoliosis. She completed an undergraduate and master’s degree, was a journalist for Radio-Canada, a press secretary at the United Nations and director of communications for the Quebec delegation at the UN. However, her condition also worsened over the years and she now lives in constant pain which is not alleviated by medication.

Importantly, both Mr. Truchon and Ms. Gladu meet all the requirements for MAID other than their deaths being reasonably foreseeable.

As mentioned above, the Truchon decision goes through a great deal of the history and evolution of MAID in Canada. While I find this fascinating, I will not go through it, to keep this article a reasonable length. The current law includes several conditions that must be met before one can qualify for MAID. I will not set them out here, but they are found in sections 241.1 to 241.4 of the Criminal Code. The one at issue in Truchon is s. 241.2(2)(d) which says that in order to qualify for MAID, “their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.”

Both the federal government’s evidence presented regarding the evolution of MAID and its arguments at trial, demonstrate its view that the restrictions and conditions set out in the law in order to quality for MAID are included to protect vulnerable people.

However, the applicants presented evidence to rebut the federal government’s contention that the requirement that death be reasonably foreseeable does protect vulnerable people. One of the applicant’s experts, a specialist in family medicine and palliative care, was critical of the concept of “reasonably foreseeable” death. He explained that physicians do not know what is meant by that term, that it is impossible to interpret and has no medical or clinical significance.

The Court did not accept the argument that the requirement that death be “reasonably foreseeable” was necessary to protect vulnerable populations. In the Court’s view, such a requirement would prohibit MAID for an entire group of handicapped people because of their handicap.

The federal government also provided evidence from experts that the reasonably foreseeable death requirement minimizes the risk of suicide. However, Madam Justice Baudouin accepted the applicant’s evidence which included testimony from experts and documentary evidence from the American Association of Suicidology. She noted that none of the federal government’s experts had any knowledge of the practice of MAID in Canada since its legalization in 2016. None of them had been involved with a request for MAID; nor had any of them conducted research on the topic or even considered the available statistics and accordingly their analyses were too theoretical.

The evidence accepted by the Court demonstrates that suicide and MAID should properly be considered two different realities. People who request MAID are not generally suicidal. One of the sources of confusion is that MAID is sometimes referred to as assisted suicide. The American Association of Suicidology set out 15 differences between suicide and MAID and the Court pointed out 6 of them including that people with a terminal illness do not necessarily want to die, in fact they typically want desperately to live but cannot do so as the disease will take its course. In contrast, suicide typically stems of seemingly unrelenting psychological pain and despair and the person cannot enjoy life or see that things may change in the future.

Over the past number of years, the discussion on this topic often included reference to “assisted suicide” or to “physician assisted suicide”. While those terms seem to have fallen out of favour among the legal and medical communities following adoption of the amendments to the Criminal Code in 2016, it will likely to take longer for the general public to fully appreciate the distinction between MAID and suicide.

Constitutional Results

The Court held that the requirement that death must be reasonably foreseeable in order to be eligible for MAID contravenes s. 7 of the Charter, which guarantees the right to life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice. This requirement violates the right to life as it has the effect of forcing certain people to take their lives prematurely because they are worried that they will be incapable of doing so once their suffering becomes too agonizing. Though that would be enough to end the analysis, the Court also held that the reasonably foreseeable death requirement also contravenes the rights to liberty and security of the person. These contraventions are not in accordance with the principles of fundamental justice and accordingly run contrary to s. 7 of the Charter. These breaches of the Charter cannot be justified under the saving provision set out in s. 1 of the Charter as the requirement of a reasonably foreseeable death is an excessive response that is disproportionate to the purpose of the law. Definite similarities to the analysis in the Carter decision emerge in the reasoning under s. 7 in Truchon.

The Court held that the reasonably foreseeable death requirement is also contrary to s. 15 of the Charter which guarantees the right to equality. Interestingly, while the trial judge in Carter considered s. 15, the Supreme Court of Canada disposed of the decision based on s. 7 and did not consider s. 15. The federal government argued in Truchon that there is no inequality with the reasonably foreseeable requirement in part because those whose death is not reasonably foreseeable can choose to stop eating and drinking. This argument struck me as being completely outrageous. As I read on a few more paragraphs, I was happy to see that the Court was not impressed with that argument either. Madam Justice Baudouin stated that such an argument is contrary to common sense and would force people like Mr. Truchon and Ms. Gladu to choose between suffering, suffering more or committing suicide. In my view, that could not have been the federal government’s intention. The Court held that the breach of s. 15 could not be justified under s. 1 either.

What’s Next?

Madam Justice Baudouin declared that the requirement that death be reasonably foreseeable is unconstitutional and therefore inoperable. However, she has provided the federal government with a 6-month period to amend the law. During this period, while the current law on MAID remains valid, Mr. Truchon and Ms. Gladu may apply for MAID and are exempt from the requirement that death be “reasonably foreseeable”. If the federal government does not act within the 6-month period, the requirement that death be reasonably foreseeable will be simply removed as a requirement from applications for MAID as of March 11, 2020.

This decision may very well be appealed. Interestingly, this falls during a federal election, as did the impacts of the Carter decision. Accordingly, once sworn in, the new government will need to act quickly.

For those of you who are interested, the full reasons for judgment are available here. Madam Justice Baudouin did mention at the end of her reasons for judgment that given the possible implications of her decision across Canada, an English version of the reasons for judgment will be produced. At the time of writing this article, only the original French version was available.


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 my previous article, Discharging a Builders’ Lien on Posting of Security: How Much is Enough?, I discussed the two pronged approach by the courts when considering what is sufficient security to be posted in order for a party to be able to discharge a builders’ lien further to s. 24 of the Builder Lien Act (the “BLA”). Again, the two-pronged test includes: (1) the Court determining whether the amount of lien claimed is sustainable and (2) if so, to determine what is sufficient security.

What level of proof may need to be furnished in order to apply the two-pronged test was at the heart of the decision in 0991193 B.C. Ltd. v 1004664 B.C. Ltd., 2018 BCSC 2510 (CanLII).

The dispute concerned a commercial property that was being purchased. After the parties entered into the purchase agreement (with a vendor take-back mortgage) and before the closing date, the purchaser immediately took possession of the commercial property and commenced significant renovations. The purchase agreement was later amended to provide that the renovations done by the purchaser would be at the purchasers’ expense and that any default of the take-back mortgage would result in the renovations becoming property of the vendor.

Prior to closing, a fire occurred which caused significant damage and the deal ultimately did not complete. Other dealings followed to arrange for the property to essentially be purchased through a share purchase agreement, which deal also collapsed. The vendor eventually filed a builders’ lien against the property in the amount of $560,377.05 primarily in relation to work and materials alleged to be supplied prior to the share purchase agreement was entered.

In the meantime, the vendor secured a new purchaser and was required to discharge the builders’ lien in order to complete the deal. To do so, it posted $560,377.05 as security further to s. 24 of the BLA in order to discharge the lien. The matter was before the court because the vendor applied further to s. 24 to have the court reduce the amount of required security. The vendor said the appropriate amount was $0, the original purchaser, now lien claimant, disagreed.

The court addressed the level of proof required in order to establish whether a claim of lien is sustainable; that being whether what is before the court is sufficient to establish a fact or raise a presumption unless disproved or rebutted. Conversely, the standard to be applied in reducing the amount of lien security required the court to consider whether the lien claim, or component of a lien claim, is plain and obvious that it is bound to fail. It is enough for a lien claimant to establish only a chance of success, not probable success.

The nature of the lien claim was described as barely satisfying the test to show it was sustainable and the evidence provided in support of the claim was similarly described as nothing more than a bald statement. Still, the court accepted that the test to maintain a substantial portion of the security was met.

That said, it was clear to the court that $150,000 of the client claimant’s claim was an amount pulled out of the air for alleged lost profit, which, at law, is clearly not the proper subject of a lien claim. As such, the court reduced the amount of the lien security by $150,000.

0991193 B.C. Ltd. v 1004664 B.C. Ltd. illustrates that the court will apply relatively minimal scrutiny of a builders’ lien claim in considering the amount of security to be ordered held in place of a builders’ lien. It is sufficient that the claiming party show that their claims are properly the subject of a builders’ lien and that there is the barest of evidence to support the quantum of a claim. Notwithstanding, it remains in a lien claimant’s best interests to present more fulsome evidence and a well-argued position in order to avoid any real risk of the reduction of their lien security.

0991193 B.C. Ltd. v 1004664 B.C. Ltd. further demonstrates that, even with the very low threshold applied for maintaining lien security, the court still retains discretion to reduce the amount of security where the underlying lien claim or a portion of it are clearly bound to fail. It is often the case that lien claimants, whether intentional or through a misunderstanding of the BLA, include claims which are not the proper subject of a builders’ lien as part of the amount that the seek a lien for. It is not unusual for there to be debts between parties which include amounts which are and are not properly the subject of a builders’ lien claim.

0991193 B.C. Ltd. v 1004664 B.C. Ltd. underscores the importance to both lien claimant and those defending against such claims to have a clear understanding of the rights and remedies afforded by the BLA as well as to obtain timely legal advice to best pursue and preserve their interests.


Jeremy Burgess is a litigation associate at Pushor Mitchell who assists clients in contractual disputes and builders’ lien matters. If you have any questions about any such matters, we’d be happy to assist you. Feel free to contact Jeremy in a confidential manner toll free at 1-800-558-1155 or at burgess@pushormitchell.com. You may also contact our litigation group.

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

In the recent case of Levesque Estate (Re), 2019 BCSC 927 Justice Gomery considered whether the beneficiary, whose name was obscured by white-out, was effectively disinherited. The Deceased’s Will, dated 2009, left her estate to be divided equally between her six children and her eldest grandchild, Ms. Nixon.  When the Will was read after death in 2018 however it was found that Ms. Nixon’s name had been “whited out”.

Section 54 of Wills, Estates and Succession Act (WESA) requires that an alteration made after the Will was executed must be signed by the Will maker, whose signature must be witnessed by two witnesses, in the presence of each other and in the presence of the will maker.  These requirements may be avoided if the alteration is not substantial, if the alteration has made a word or provision illegible or if the alteration is made effective by an order of the court under section 58 of WESA.  In the case of Levesque, the beneficiary’s name was still legible if the Will was held up to the light, notwithstanding the name being completely covered with white-out (“the Alteration”).

The court reviewed the evidence relating to how, when and in what circumstances the Will had been drafted, how the document had been stored for safe keeping (including who likely had access to the Will) and the possible explanations as to why the Deceased may have chosen to cut Ms. Nixon out of her Will, after it had been executed. Evidence was considered from several witnesses, including one the court identified as being entirely independent, that the Deceased had been upset with her granddaughter “eloping” and marrying her boyfriend in Thailand. This evidence was disputed by Ms. Nixon who stated that she had told her grandmother of the wedding plans and that her grandmother had expressed her approval and gave her money as a wedding gift.

The Judge noted that his task in the civil proceedings was to “come to conclusions on a balance of probabilities, that is, to decide what most probably occurred.”  On careful assessment of the evidence Mr. Justice Gomery found that it was likely the Deceased who had made this Alteration and it was the deliberate and final expression of the Deceased’s intention to remove her granddaughter from the Will.

[33]        Carefully dabbing white-out over the provision in question was undoubtedly a considered and deliberate act on the part of the Deceased.  She was applying the white-out to the original Will.  It was not a casual act.  The only reasonable inference is that her intention was to remove the provision from the Will.

[36]        If the Deceased applied the white-out in the immediate aftermath of learning of Ms. Nixon’s marriage, she took no steps to reinstate or unrevoked the gift to Ms. Nixon after that.  She maintained an affectionate relationship with Ms. Nixon, giving her a marriage gift and congratulating her on her marriage to a “a good hard-working man”.  It may be that she no longer felt that Ms. Nixon needed special provision as she had felt nine years earlier. This is speculation.  The facts I am left with are that the Deceased made the Alteration deliberately, in the knowledge that she was altering the original Will, with the intended effect that Ms. Nixon was removed as Beneficiary.

This was a case brought before the court by the executors who, under a duty to act fairly to all beneficiaries and uphold the terms of the Will, sought guidance from the court.


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.