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In simple terms an estate is everything a person owns and owes, or their net worth.  Assets within an estate may include property, money in the bank, car, personal belongings, rights to income and anything else of worth. The value of the estate reflects the debts and liabilities of that person such as mortgages, loans and outstanding taxes. When a person passes away, key responsibilities of the personal representative include gathering the deceased person’s assets, establishing the value of the deceased’s estate and paying the liabilities, before taking steps to distribute assets.

Not All Assets Fall Within the Estate

When a person dies their assets fall into one of two categories: (a) assets which belonged to the deceased and form part of their estate and (b) assets which may or may not have belonged to the deceased which do not form part of their estate.

Assets which do not generally form part of the estate include assets which are jointly owned by another person.  Generally, jointly owned assets transfer to the surviving owner by operation of law upon the other’s death. For example, for property owned and registered in joint tenancy, ownership will normally vest in the surviving owner upon death and a simple document can be filed with the Land Titles office to reflect the change in ownership.  Another example is a life insurance policy, which has a named beneficiary which will also pass outside of the deceased’s estate.

Only property that falls within the estate is distributed in accordance with the deceased’s Will or, where no valid Will was made, in accordance with the Wills, Estates and Succession Act (WESA).

Common Estate Litigation

Estate litigation takes many forms. One common situation is where the spouse or child of the deceased has been excluded from the Will, or whose share is not as large as they feel it ought to be.  The law in British Columbia is that a spouse has a legal and moral obligation to provide for their surviving spouse and minor children, and a moral obligation to provide for adult children.   While there may be good reason for the deceased to exclude a spouse or child, it may be open for that discontented family member to apply to vary the Will. Whether such an application will be successful is highly dependent upon the facts of each case.  The court is likely to consider the size of the estate, provision made for the otherwise excluded spouse or child outside of the estate (for example, life insurance or pension benefits), gifts and transfers of assets made while the testator was still alive and the financial need of the respective estate beneficiaries, spouse or child.

Another common example is a dispute as to whether the document purported to be the deceased’s Will is in fact the deceased’s Will reflecting their fixed and final expression of their testamentary intention. Alternatively, the Will may be defective and fail to meet the legal requirements of a Will.  For example, the Will may not have been properly signed or witnessed. In that case, it may be necessary to resort to the Courts to “cure” the deficiencies in the Will, if possible.

A more fundamental dispute may arise over the validity of the Will if it is claimed that the deceased lacked mental capacity to make the Will at the time it was signed or was unduly influenced to make certain gifts in a Will.

Litigation on the Increase

Estate litigation has become more prolific in recent decades and this trend is set to continue. This trend is likely a reflection of the rise in blended families, complicating the competing claims of potential beneficiaries; the broader definition of ‘spouse’ (at the time of passing, the deceased may be considered to have more than one ‘spouse’); the aging population and the increased wealth of this older generation which provides for larger estates.

According to a 2014 study by BMO InvestorLine we are entering an era of the largest inter-generational transfer of wealth in Canadian history, from those born in the 1930s and ‘40’s to the baby boomers. The prevalence of estate litigation and the recent changes in the law makes it more important that ever to obtain legal advice to ensure your rights and wishes are protected.


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.

Regulatory changes took effect on Tuesday, April 16, 2019 that expanded the presumption for mental health disorders caused by work. The presumption only applies to WorkSafeBC claims and eligible occupations. The initial list of eligible occupations included correctional officers, emergency medical assistants, firefighters, police officers, and sheriffs. The list has now been expanded to also include emergency dispatchers, licensed practical nurses, nurse practitioners, registered nurses, registered psychiatric nurses, and Health-care assistants (care aides).

The way the presumption works is that if a worker in an eligible occupation is exposed to one or more traumatic events at work and is diagnosed with a mental disorder by a psychiatrist or psychologist, the mental disorder is presumed to have been caused by work.

WorkSafeBC defines a “traumatic” event as an emotionally shocking event. In most cases, the worker must have experienced or witnessed the traumatic event. This presumption allows WorkSafeBC to recognize that workers employed in eligible occupations, due to the nature of their work, may be exposed to traumatic events as part of their employment.

As with any presumption, it can be rebutted. The standard of proof to be applied in determining whether the presumption has been rebutted is proof on a balance of probabilities. If the evidence is more heavily weighted in favour of a conclusion that something other than the employment caused the mental disorder, then the contrary will be proved, and the presumption is rebutted. It is not enough to say the presumption is rebutted because there is a lack of evidence to support work causation.

In addition, further amendments introduced on April 11, 2019, extended the cancer, heart disease and mental-health disorder presumptions to wildfire fighters, fire investigators and firefighters working for First Nations and Indigenous organizations.

Employers are encouraged to take steps to create mentally healthy workplaces for all employees. One such way is to have a flexible benefits package that allows people to access psychological help and counselling.

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 the second of this series of articles we look at the case of Sandy, a 19-year-old student who was discovered to have a congenital hole in the heart and suffered a devastating complication during surgery by virtue of the negligence of the cardiac surgeon.

What makes this case memorable, and frankly shocking, was the attitude of the cardiac surgeon who continued to deny, what Angela characterized as, gross negligence had caused the global hypoxic brain injury despite the clear evidence as to the contrary.

Sandy was born an apparently healthy child and met all her developmental milestones.  She later reported that she did appear to have less energy than her peer group, but not to such an extent that a cause was ever investigated.  That was until one day when she lost consciousness in the bathroom and was taken into the local emergency department. Testing revealed that Sandy had been born with a hole in the heart.  This defect meant that the heart function was less than optimal which accounted for the reduced level of energy and the fainting episode in the bathroom.  The size of the heart defect meant that surgery was required. Sandy and her parents were reassured by the cardiac surgeon that the surgery was “straightforward” and that he expected Sandy to make a full recovery.

The surgery required that Sandy be placed on heart by-pass.  This is a machine that replaces the function of the heart and lungs during the surgery that permits the surgeon to stop the heart, repair it and then re-establishing the circulation by taking the patient off by-pass and then re-starting the heart.

Massive Air Embolus Caused Global Hypoxic Brain Injury

The surgeon negligently failed on two serious counts.  Firstly, he failed to notice the line designed to carry the oxygenated blood to the brain was not flushed with blood but remained filled with air and secondly, he failed to clamp the aorta before connecting the line. Rather than feeding the brain with oxygen-rich blood, Sandy’s brain received a huge volume of air causing a massive stroke affecting both sides of her brain (global hypoxic brain injury).

Despite immediate steps that could have been taken to reduce the impact of the air embolism, the defendant surgeon told no one in the operating room of what had happened.  He continued with the surgery, patched the heart, restarted Sandy’s heart, closed her chest and only then directed the patient be taken for hyperbaric chamber treatment. Whether this behavior reflected a cool, calm and professional surgeon, as claimed by the defendant, or the conduct of an arrogant cardiac surgeon as claimed by other professionals in the operating room added an element of drama to the case with the defendant anesthesiologist (named as a defendant before fully understanding the mechanism of the injury) denouncing the surgeon’s conduct.  In a rare moment of ‘public’ self-preservation the anesthesiologist had written a candid note in the clinical records of what the surgeon had said and when, effectively distancing himself from the surgeon’s conduct.  Usually, medical professionals are encouraged to write such statements in an incident report, which remains hidden from the patient, even during litigation.

Despite the obvious breach in standard of care (failing to ensure the line was devoid of air) and the unusually straightforward causation (injecting air directly into the brain will always cause a stroke which was well-imaged on multiple MRIs) the surgeon refused to admit liability.

Simplifying the Complexity of Heart and Lung By-Pass Procedure was Key to Proving Liability

Through the use of experienced and objective experts Angela demonstrated, in layman’s terms, how the errors had been made.  By demystifying and simplifying the complex by-pass procedure it became easier to illustrate that the surgeon’s errors were fundamental in nature and negligent, not the result of an error in judgment or a recognized but unavoidable risk of the procedure, as originally argued by the surgeon.

A reconstruction of the heart and lung by-pass procedure by an expert perfusionist enabled an accurate calculation of the likely volume of air injected into the brain. The volume of air alone put the magnitude of the error into perspective.

Angela’s ability to assess the issues and engage experts to break down the component parts of the surgery was a critical component of proving the claim and securing a successful outcome for Sandy.  While the costs of these expert reports are high, the costs are ultimately recovered from the defendant in the settlement.


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

In the latest ‘reform’ of the law for collision victims in BC, the NDP have passed a new regulation shortening the time to submit receipts to ICBC from 2 years to a mere 60 days.

There has been no real explanation from either the NDP or ICBC as to why they feel the need to shorten the existing time frame.

Even though this was proclaimed on April 1st, this unfortunately was no April Fool’s joke.

Among the changes is the creation of section 88.01 of the Insurance (Vehicle) Regulation creating a far shorter deadline for the submission of receipts to ICBC.  The new section reads as follows:

Requirement for receipts

88.01
(1) If an accident occurs for which benefits are provided under section 88, the insured must provide to the corporation a receipt for the expenses incurred that will be compensated as benefits under that section no later than 60 days from the date that those expenses are incurred.
(2) The corporation is not liable to an insured who, without reasonable excuse, fails to comply with this section.

This requirement applies only to accidents occurring after April 1, 2019.

So those who are injured after April 1st must submit their receipts in this timeframe.

If you do not, and you cannot get them covered by your own private insurance, you may be out of luck recovering the expenses in your ICBC claim.


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 claims, and other catastrophic injury claims. He is acts for injured clients all over BC and Alberta, and will not act for ICBC or any other insurance company. For more information on this article, or for a confidential discussion of your personal injury claim, contact Paul Mitchell, Q.C. at 250-869-1115 (direct line), or send him a confidential email at mitchell@pushormitchell.com.

The following article is part of a series of articles that document some key considerations about franchising including some of the pitfalls and opportunities which our firm has seen and advised upon over the past two years.

For a full .pdf version of this article, please click here.

As of February 1, 2019, two years will have passed since the B.C. Franchises Act came into force (the “Act”). Since the enactment of this legislation, the Franchise Law Practice Group at Pushor Mitchell LLP has helped franchisors and franchisees navigate the Act, ensuring that those interested in operating a franchise business are compliant with the legislation’s many requirements so that they can focus on what is most important: running a successful business!

This article is part of a series of articles that document some key considerations about franchising including some of the pitfalls and the opportunities which our firm has seen and advised upon over the past two years.

What is a Franchise?

In a previous article, we discussed the importance of franchisors providing Franchise Disclosure Documents to franchisees. Since the Franchises Act was implemented in 2017, our Franchise Law Practice Group has encountered many examples of franchisors who have not complied with the requirement to provide such a Franchise Disclosure Document. The reality is is that some franchisors simply did not know about the existence of the Act and its regulation while others were aware of the legislation but thought that it did not apply to their business.

Does the Franchises Act apply to my business?

In order to determine whether the Act applies to a particular business model, one must first review the definition of a “franchise” in the Act as well as in relevant court decisions.

The definition of “franchise” is broader than most people expect and may capture certain licensing, distribution, or other arrangements. Importantly, the courts look at the substance of the arrangement, not the title given to the arrangement by the parties.

For the entire definition, please see subsection 1(1) of the Act, however the following excerpt provides a good starting point (note: the emphasis in the following text is our own):

“Franchise” means a right to engage in a business in which a franchisee is required to … make a payment or continuing payments, to a franchisor …, and in which

(i) the franchisor grants the franchisee the right to sell, offer for sale or distribute goods or services that are substantially associated with the franchisor’s or the franchisor’s associate’s trademark, trade name, logo or advertising or other commercial symbol, and

(ii) the franchisor or the franchisor’s associate exercises significant control over, or offers significant assistance for, the franchisee’s method of operation, including building design and furnishings, locations, business organization, marketing techniques, or training…

The portion of the definition that is often in question is the requirement that the franchisor exercises significant control over, or offers significant assistance for, the franchisee’s method of operation.

We are not aware of any court decisions based on the Act with respect to this issue; however, the courts in other provinces with similar legislation have considered the question and have engaged in a contextual analysis to determine whether one company has sufficient control over another company to be considered a franchisor.

What are the Courts saying?

Two examples of situations where courts found a franchise relationship even though the “franchisor” did not believe a franchise existed are:

  1. A defendant entered into brokerage licensing agreements with various parties including the plaintiff. Licensees were provided with manuals, guidelines and resource kits containing the concepts and methodology integral to conducting the business. The plaintiff argued that the agreements did in fact meet the definition of a franchise.  The court found that the defendant exercised significant control over the plaintiff’s method of operation. The licensing agreement itself noted “the necessity of operating the licensed business in strict conformity with the company’s standards and specifications.” The defendant also provided the plaintiff with billing and invoicing services, collection services, office support, accounting support, and other services.
  2. In another case, the defendants argued that they never entered into a franchise agreement despite their initial intention to do so. They argued that they entered into an asset purchase agreement for a restaurant, a sublease, and a license agreement. Initially a draft franchise agreement was prepared by the defendants but rejected by the plaintiffs. No further franchise agreement was prepared. The court found that although the plaintiffs had refused to sign the draft franchise agreement presented to them by the defendants, the relationship between them was nevertheless a franchise. Factors taken into consideration included the fact that the defendant designed and supervised construction of the store and ordered and paid for the equipment for the store. The defendant also provided the menu for the store and the plaintiff was obliged to serve the food described in the menu. The plaintiff was similarly required to use special trademark sauces of the restaurant. The transaction was structured in a manner typical of franchise transactions.

At Pushor Mitchell LLP, our Franchise Law Practice Group is happy to assist business owners and potential franchisors determine whether their business model or proposed business relationships will be governed by the Act. We are able to advise on alternative structures and our firm can further assist across a wide-range of business and personal needs. Should you require assistance, please contact any of the members of our Franchise Law Practice Group using the information provided on the front page of this article.


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 any member of the Franchise Law Practice Group at Pushor Mitchell LLP by calling (250) 762 – 2108 or visiting our website at www.pushormitchell.com.

 

There are many categories of intellectual property, but the main categories are:

  • Patents (Inventions)
  • Trademarks (Brand Names, Trade Names, Trade Dress)
  • Copyright (Expressions)
  • Industrial Designs (Ornamentation)
  • Trade Secrets (Undisclosed Ideas)
  • Plant Breeder’s Rights (New Plant Varieties)

Most intellectual property rights have some legal protection as soon as they arise, however, these rights can be significantly enhanced and improved by registration with the intellectual property offices in many countries. The most common intellectual property rights are outlined in more detail as follows:

  1. Patents – A patent provides legal protection for an invention or process that is novel, non-obvious and clearly defined.
  2. Trademarks – A trademark is a symbol, word, slogan or logo used to distinguish your brand or product from others.
  3. Copyrights – Copyright exists the moment you write, record or otherwise create something tangible with your ideas. Ownership automatically belongs to the author, so if you are hiring a graphic designer to design a logo for your business for example, be sure to have them execute a “Copyright Assignment and Waiver of Moral Rights Agreement” assigning all rights in the logo to you/your company.

Protecting your intellectual property is extremely important. The value of your brand can be significant and often much more valuable than any inventory you may have.


Vanessa DeDominicis is a Partner and a Registered Trademark Agent with the Canadian Intellectual Property Office and the United States Patent and Trademark Office. Her business law practice has a specific focus on intellectual property law, including filing Canadian and US trademark applications and advising clients on infringement issues. This information applies as a general rule ONLY and may change depending upon the specific circumstances of your own situation. You should consult a lawyer before acting on any of this information.  You can contact Vanessa on 250-869-1140 or dedominicis@pushormitchell.com

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 most 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 Price-Stephens 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.

Angela has successfully secured settlements in cases of medical malpractice for up to $6.5 million in specific cases. Valuing a claim is a complex process in which many aspects of the client’s loss must be taken into consideration in the context of the evidence known at that time.  The manner in which the evidence is secured and prepared for presentation to the court is a critically important factor.

Proving Causation – the Key to Medical Malpractice Claims

One of the factors that make claims of medical malpractice so challenging is the issue of causation.  Paul Mitchell Q. C. explained causation in his article Medical Practice 101, The Top 7 Things You Need to Know About BC Medical Malpractice Cases – #5.  Essentially, causation refers to proving, on a balance of probabilities, that a specific error (or omission) made by the defendant health care professional caused a worse outcome for the patient. Without proving causation there can be no compensation. This explanation is deceivingly (over) simplified.  Causation, or the failure to prove causation, is where the majority of medical malpractice cases fail.

Chiropractic Neck Adjustment Causing Stroke

In the first of this series we review the case of Michael who suffered a stroke 18 days after a ‘routine’ chiropractic manipulation on his neck.  The manipulation was part of a ‘wellness’, ‘routine maintenance’ visit, encouraged by the chiropractor.

The remarkable aspect of this ultimately successful claim was the delay between the last chiropractic manipulation (cracking the neck) and the stroke, which was caused by the dissection of the choroid artery. A dissection is a breakdown of the inner layers of the blood vessel, rather like a blistering, which impacts the smooth flow of blood to the brain.  The narrowing of the blood vessel increases the risk of a blood clot to the brain that may cause a stroke, which may result in permanent brain damage. This is what happened in Michael’s case.  The effects of the ischemic stroke were devastating for Michael and his family, preventing him from returning to work to support his young family, requiring ongoing care for his regular activities of living and leaving him with severely impaired speech and reduced comprehension.  He also fatigued easily, a common symptom of the post-stroke condition, which impaired ongoing efforts to rehabilitate.

Junk Science and Chiropractic Care

This 18-day delay between chiropractic treatment and stroke allowed the chiropractor, through his professional association and lawyer, to argue that the manipulation was, on the balance of probability, not a cause of the stroke.  As expected, they argued that there are many ordinary and everyday activities that can precipitate or cause a carotid artery dissection. These activities include strenuous exercise, anything that places pressure onto the neck (resting the neck onto a hairdresser’s sink to have one’s hair washed, for example), blunt trauma, whiplash and congenital disorders that may make one more vulnerable to developing dissections (such as a Ehlers-Danlos syndrome). Dissection may also happen spontaneously, with no apparent cause.

It was also argued that the scientific literature demonstrated no causal connection between chiropractic neck manipulation and stroke. In fact, the defendant argued that the pressure and velocity of a neck adjustment could not be sufficient to induce trauma, which was contrary to the argument that every day, innocuous activities such as running on a treadmill could trigger a dissection.

It was clear from the outset that establishing causation was going to be the most challenging aspect of this claim. Given the potential high value of the claim and the reputation of the chiropractic industry being at stake, it was also going to be fiercely defended.

By very careful review of both the literature and Michael’s clinical notes a clear and reasonable case theory emerged as to how the chiropractic manipulation was the most probable cause of dissection.  The problem remaining was how to prove it on legal principles on a balance of probability.

Angela first challenged and undermined the credibility of the scientific evidence.  It became apparent that the design of the experiments, in which the forces of a chiropractic manipulation were simulated on cadavers, was fundamentally flawed. By expert evidence she proved that the literature used by the chiropractic industry to assert the safety of neck manipulation was, at best, misleading.

Having debunked the literature, Angela was able to focus on the chronology of events for this client. This included the sudden onset of headache following the manipulation, which persisted until the stroke and the reported feeling and sound of “whooshing” in his ear, which was later characterized as pulsatile tinnitus by the expert neurologist retained for the claim.

With the right experts the risk to the defendant chiropractor of being found liable for the subsequent stroke was too great and the case was settled prior to trial.

Also of influence on the settlement, was the potential consequence an adverse judgment may have had on the chiropractic industry had the court recognized the risk of dissection inherent in neck manipulation and the flawed, if not misleading, scientific literature the industry continues to rely upon.


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.

In even the most well-thought out construction contracts, there is almost always the need for parties to deviate in some way from the timelines and scope of work. When the parties fail to fully contract for these eventualities or fail to alter their contract to account for extras and delays, it may fall on the court to sort out the legal consequences in such instances. Such was the case in the recent decision of Diamond 11 Excavating and Demolition Ltd. v Dhunna, 2018 BCSC 2230 (CanLII).

The Plaintiff sought payment for unpaid work and extras by filing a lien over two properties and commencing an action. The Defendant resisted on the basis that the Plaintiff did not complete its work before it was terminated for delay, that some of the claimed work related to the Plaintiff remediating its own errors and that other claimed work was the result of the Plaintiff’s actions. The Defendant also counterclaimed for certain costs it paid as extras, carrying costs of the properties, charges to plans, extra costs and completion costs.

The Court helpfully cited the law with respect to extras as was summarized in Kei-Ron Holdings Ltd. v. Coquihalla Motor Inn Ltd., [1996] B.C.J. No. 1237 (S.C.). The issues a court must consider when determining a claim for extras are:

  1. whether the extra work was work which fell outside the ambit of scope or work originally contemplated;
  2. if so, did the owners give express or implied instructions to perform the extra work;
  3. were the owners aware the extra work would increase costs; and
  4. were any provisions requiring change orders fulfilled or did the owners otherwise acquiesce in ignoring such provisions; and
  5. if all the previous elements may be answered in the affirmative, the defendant is liable to make payment on extras.

The Court went on to cite the standard for how to quantify extras as was held in Infinity Steel Inc. v. B& C Steel Erectors Inc., 2011 BCCA 215 (CanLII):

…where the parties to a valid contract have agreed for the provision of goods or services, clearly intended to be paid for, but have failed to provide for the terms of remuneration, then they may be presumed to have intended a reasonable price and, on that basis, a contractual term to pay a reasonable price may be implied. As the cases cited by the trial judge indicate, there is clearly no room for this doctrine, or for such an implication, where the contract explicitly provides for the amount of remuneration, or for the method for determining the same.

On the basis that there was a lack of detail and substance, certain of the claims for extras were rejected. There was also a lack of written confirmation that certain claimed extras were to be charged as extras which further grounded the rejection of certain claims. In conclusion, the Court rejected claims for extras as not actually being extra to the contract price, there being insufficient evidence of amounts expended to ground any claim for extra and there being invoices presented without any personal knowledge by the Plaintiff and including claims for work in relation to unrelated properties.

With respect to delay, the Court held that, even when a contract is silent on a completion date, a reasonable time to finish work may be implied. What constitutes reasonable time requires a contextual analysis. The Court cited from Hallatt Estate v. Paulsen, 2009 BCSC 1266 (CanLII) for the following material principles:

  1. the absence of a completion date does not invalidate an agreement if a court can imply a completion date; and
  2. where no completion date is specified, the law implies a completion date of “within a reasonable time”.

The Court found in all the circumstances that there was no unreasonable delay given that the circumstances did not support the completion date argued by the Defendant.

The Plaintiff was entitled to compensation for work it completed to the time of its termination less additional amounts the Defendant paid to complete the Plaintiff’s work.

Diamond 11 Excavating and Demolition Ltd. v Dhunna is a useful read for contractors or contracting parties who find themselves arguing over the consequences of failing to reach agreements with respect to extras and completion dates or when circumstances required extras or for completion to be delayed but where the parties failed to reach an agreement about the timing and compensation owing for same. It is a reminder that no party gets to unilaterally determine such issues after the fact in the absence of a prior agreement and that the Court seeks to impose rationality and reason to either party’s claims.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes and issues concerning the performance of construction contracts. 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.

While a contract can be formed by any combination of communications and oral and verbal agreements, it remains the most prudent course of action to reduce a contract to writing to avoid any ambiguities about what has or has not been agreed to. When it comes to contracts concerning the disposition of real property, there is a statutory requirement that the agreement concerning such a disposition be reduced to writing to be enforceable except in certain circumstances.

S. 59(3) of the Law and Equity Act, RSBC 1996, c 253 provides that:

(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. (emphasis added).

Similarly, s. 36(1) of the Law and Equity Act provides as follows:

36(1) An absolute assignment, in writing signed by the assignor, not purporting to be by way of charge only, of a debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, is and is deemed to have been effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been enacted, to pass and transfer the legal right to the debt or chose in action from the date of the notice, and all legal and other remedies for the debt or chose in action, and the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor. (emphasis added)

In the recent case of Guraya v Kaila, 2019 BCSC 101 (CanLII), the Plaintiff’s sought to enforce a verbal assignment of a contract of purchase and sale in the face of vendors refusing to complete with the assignee purchasers. Materially, the vendors had no notice that the contract in question has been assigned nor had they agreed to such an assignment despite the contract containing a provision that did allow for the assignment.

The vendors’ argument was that the plaintiffs had not complied with ss. 36(1) and 59(3) of the Law and Equity Act and, as such, the assignment of the purchase contract was not enforceable.

The case ultimately turned on whether the purported assignment could be enforceable against the vendors in light of the requirements of ss. 36(1) and 59(3). The court held that the purported assignments were required to comply with s. 59(3) as they concerned the disposition of land.

It was clear that s. 59(3)(a) did not apply as there was no written agreement for the sale of the land in question as between the would-be purchasers/assignees and the vendors. There was nothing put in evidence that even demonstrated the vendors were made aware of the purported assignment.

The court held that s. 59(3)(b) concerned whether the vendors had done any acts done in part performance of a contract, not the assignor as the plaintiffs urged. The court found that no such act had been performed and, in fact, the only act done by the vendors in relation to the assignment was to implicitly reject the assignment.

The defendants were uninvolved with any detrimental change of position on behalf of the assignees such that s. 59(3)(c) had application.

Ultimately, the court found that the vendors were not the authors of nor contributed to any hardship wrought on the assignees. As the vendors were not any part of the purported assignment, they were not bound by it. The vendors were not obliged to complete on closing documents with parties other than those they contracted with. In the absence of evidence that the original purchaser was ready, willing and able to complete, the vendors were entitled not to complete.

Guraya v Kaila underscores the importance of reducing any agreement concerning the disposition of land to writing, including the assignment of any interest in such an agreement. It is a far harder hill to climb to prove that a party is bound to an agreement concerning the disposition of land by circumstances than it is to procure a written contract in respect of such a disposition.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes and issues concerning the purchase and sale of real property. 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.

The British Columbia Court of Appeal recently affirmed that the test for assessing discrimination in employment on the basis of family status differs from other protected grounds.

The Human Rights Code prohibits discrimination in employment on a variety of grounds, including physical or mental disability, age, religion, political belief, sex and sexual orientation. The test applied when determining what constitutes discrimination under these grounds is the same, namely:

1. Does the employee have a characteristic protected from discrimination (e.g., a physical disability)?;

2. Did the employee experience adverse treatment in their employment (e.g., a demotion or termination of employment)?; and

3. Was the protected characteristic a factor in the adverse treatment?

However, the test applied in British Columbia when interpreting what constitutes family status discrimination differs from the other protected grounds. In Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”), the British Columbia Court of Appeal established a two-part test for establishing discrimination on the basis of family status:

1. a change in a term or condition of employment imposed by the employer; and

2. the change resulted in a serious interference with a substantial parental or other family duty or obligation.

Campbell River has been criticized for creating a more stringent test for establishing family status discrimination in British Columbia and is not followed by adjudicators in other jurisdictions. Notwithstanding these concerns, the British Columbia Court of Appeal recently affirmed its stricter test in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).

In Suen, Mr. Suen worked as a project manager in Envirocon’s office in Burnaby. He was required to travel for work. His wife gave birth to their first child a few years after commencing employment with Envirocon. The manager of a project in Manitoba resigned unexpectedly when Mr. Suen’s child was four months old and Mr. Suen was advised that he was required to report to Manitoba for eight to ten weeks. Mr. Suen refused the assignment, citing his wife and four-month old baby. His employment was terminated as a result of refusing to accept the out-of-town assignment.

Mr. Suen filed a human rights complaint alleging discrimination on the basis of family status. Envirocon applied to dismiss the complaint on the basis that assigning Mr. Suen to a project requiring him to be away from home did not constitute a significant change in the terms of his employment and was not a serious interference with a substantial parental obligation. The Human Rights Tribunal denied the application to dismiss, noting that recent Supreme Court of Canada decisions cast doubt on whether Campbell River remains good law.

Envirocon unsuccessfully applied for judicial review of the Tribunal’s decision before appealing to our Court of Appeal. There, Mr. Suen asked the Court to reconsider the test in Campbell River on the basis that it is too restrictive. The Court declined to do so. Instead, it overturned the decision of the Tribunal noting that Mr. Suen’s child did not require special care and he was not the only parent capable of caring for his child. As such, Envirocon’s demand that Mr. Suen work away from home did not constitute a serious interference with a substantial parental or other family duty of obligation. Mr. Suen’s desire to not work away from home was akin to a parental preference to spend time with his child – a preference shared by most parents.

It is unknown whether Suen will be appealed to the Supreme Court of Canada. However, in the interim, Campbell River remains good law in British Columbia. Parents are expected to juggle work and parental obligations. A parent’s preference to spend time with his or her child will not – in and of itself – establish family status discrimination. A serious interference with a substantial parental obligation is required.

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

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

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

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

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


This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on intellectual property rights, and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or dedominicis@pushormitchell.com Vanessa is a Registered Canadian and US Trademark Agent at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you!

The recently introduced BC Speculation and Vacancy Tax (“Spec Tax”) is a topic of much discussion in our community lately. The Spec Tax is predicted to have a significant impact on the areas which it applies, including the Cities of Kelowna and West Kelowna.

The Spec Tax does not apply to Westbank First Nation (“WFN”) or homes which are leased or subleased on WFN Lands. The Spec Tax specifically excludes from its application reserves of indigenous nations and treaty lands of any nation which has completed the treaty process, which includes WFN Lands.

Spec Tax is one of many provincial land related taxes which do not apply to WFN Lands. Other taxes which generally do not apply include Property Transfer Tax and the tax known as the foreign buyer tax. However, there is one neighborhood on WFN Lands which is registered in the Land Title Office as well as the WFN Registry, and for that neighborhood only the Property Transfer Tax and foreign buyer tax do apply.

If you have any questions about the property transfer process and related taxes which apply to homes on WFN Lands, please reach out. We help buyers and sellers of subleases on WFN Lands with the legal aspects of transactions involving their homes, and can answer questions about the fees and taxes which apply (and don’t apply).


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

The new B.C. Entrepreneur Immigration Regional Pilot Program is designed to attract entrepreneurs to participating regional communities in order to start new businesses that are in line with those communities’ economic development priorities. In order to participate in the Regional Pilot Program an applicant must be referred by one of the 41 participating communities.

Location of Business:

Unlike the B.C. Entrepreneur Immigration Base Category program, under the Regional Pilot Program one must establish their new business in one of the 41 participating communities. Conversely, under the Base Category, one can establish a new business or purchase an existing business anywhere in British Columbia. Moreover, in order to pursue the Regional Pilot Program one must visit and engage the community and obtain their support before registering for the program.

Lower Investment Threshold:

For individuals looking to immigrate to Canada BC’s new immigration entrepreneur Regional Pilot Program is an attractive option given the lower investment threshold required to qualify under the new category.

By way of comparison, while the Base Category requires an applicant to have a net worth of at least $600,000, the Regional Pilot program requires a minimum net worth of only $300,000. In both cases the applicant’s net worth must be verified if they are invited to apply.

Further, while the Base Category requires a minimum investment of $200,000, the Regional Pilot Program requires a minimum investment of only $100,000.  The upshot is that these lower thresholds are geared toward encouraging investment in smaller communities in British Columbia.

Ownership Percentage:

Under the Base Category program an individual must have an ownership percentage in the new or existing business of at least one-third (33%). However, under the Regional Pilot Program an individual must have an ownership percentage in the new business of at least 51%.

Program Similarities:

There are a number of similarities between the two entrepreneur programs and both programs require the same education or experience as an active business owner-manager for at least 3 of the last 5 years with 100% ownership in the business. Under both programs the business must create at least one full-time equivalent job for a Canadian citizen or permanent resident of Canada.

Prior to applying under either of these categories it can be helpful to take the time to speak with a Canadian immigration lawyer who can explain the application process and review the different requirements of each category.

For more information visit: https://www.welcomebc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents

“If it’s too good to be true, it probably is.” Any combination of stressful circumstances, a high degree of trust, inexperience or internet expertise replacing real expert advice might result in a person ignoring a minimizing clear warning signs that they are about to enter less than prudent contractual relations or make a poor investment. Such was the case in Reimer v The South Asian Post Media Inc., 2018 BCSC 2205 (CanLII).

The plaintiff, Ms. Reimer, first met the primary defendant, Mr. Gravelle, in his capacity as a religious leader. She attended his house often for teachings and developed a trust for him. This trust may have been a factor in Ms. Reimer confessing in the financial difficulty she was experiencing as a result of having assets, but no income. Mr. Gravelle was also a realtor and Ms. Reimer had asked about selling her house to downsize and free up cash.

Mr. Gravelle, upon learning that Ms. Reimer’s home was mortgage free, instead suggested she take out a mortgage and invest the proceeds. Eventually Mr. Gravelle arranged for Ms. Reimer to invest $250,000 in a company, South Asian Post, through Mr. Gravelle’s company, W.Y. Atap, for a term of three years. Ms. Reimber was enticed with a promised simple interest rate of 12% per annum; a very decent return as compared to most investments.

The loan was backed by a promissory note from South Asian Post and its principal, Mr. Sewak. Ms. Reimer was further enticed to make this investment through Mr. Gravelle telling her he was a shareholder in South Asian Post and had invested money in the business himself.

Ms. Reimer ultimately loaned $228,359 from a mortgage and her personal savings to South Asian Post. The promissory note promised was provided and it included a statement that the guarantors would put up additional security in the form of four shares in South Asian Post to be held in trust by Mr. Gravelle. Mr. Gravelle also provided a personal guarantee for the sums loaned.

Scheduled interest payments were made, but Mr. Gravelle informed Ms. Reimer near the end of the three-year term that the loan could not be paid. A one-year extension was sought and granted with further guarantees exchanged. At the end of the extension year, Ms. Reimer was again told that the loan could not be repaid and a further one-year extension was granted.

Near the end of the second extension period, Ms. Reimer was growing concerned about being repaid. Mr. Gravelle assured her that, although South Asian Post was going to be unable to repay the loan, Mr. Gravelle would pay the loan from his own funds given that he was a guarantor.

The time for repayment of the loan came and went without repayment. Mr. Gravelle made a few partial payments of accruing interest in the months to follow, but the full amount of interest and principal were never repaid. Ms. Reimer was unable to recover any funds from South Asian Post or Mr. Sewak when she obtained a default judgment against them.

The Court upheld the guarantee provided by Mr. Gravelle, in part, on the basis that he received consideration for the guarantee in the form of his being a shareholder and creditor of South Asian Post and, as such, benefited from Ms. Reimer’s funds being invested in that company. There was evidence he also obtained finders fees in relation to Ms. Reimer’s loan. The court rejected the notion that Mr. Gravelle’s guarantee would be voided if Mr. Reimer’s mortgage was paid off.

The words of the loan did make it unclear if interest would continue to accrue at a rate of 12% after the loan, but the Court relied on Bank of America Canada v. Mutual Trust Co.2002 SCC 43 (CanLII), among other authorities, in finding that, absent exceptional circumstances, interest continues to accrue at contractually agreed upon interest rates in post-breach loans. The court held that Mr. Gravelle was liable for the principal and accrued interest of $143,015.40 less the amount Mr. Gravelle already paid, being $21,743.59.

The court went on to analyze whether there had also been negligent misrepresentation and analyzed the following factors for such a tort as set out in Queen v. Cognos, Inc1993 CanLII 146 (SCC), [1993] 1 S.C.R. 87:

  • there must be a duty of care based on a “special relationship” between the representor and the representee;
  • the representation must be untrue or inaccurate or misleading;
  • the representor must have acted negligently in marking said representation;
  • the representee must have relied, reasonably, on said negligent representation; and
  • the reliance must have been detrimental to the representee, causing damages.

The court found that each element was met against Mr. Gravelle and the company he controlled and through which Ms. Reimer loaned her funds.  The court found that the appropriate award of damages for negligent misrepresentation was the principal amount of the loan, plus pre-judgment interest calculated under the Court Order Interest Act, minus the amount that Mr. Gravelle has already paid.

The court’s ultimate findings of liability were summarized in para. 95 as follows:

  • Mr. Gravelle was personally liable to Ms. Reimer in breach of contract for damages in the amount of $359,630.81.
  • In the alternative, Mr. Gravelle was personally liable to Ms. Reimer in negligence for damages in the amount of $238,359, plus pre-judgment interest calculated under the Court Order Interest Actfrom January 2013 until December 2018, minus $21,743.59 on account of interest already paid.
  • Gravelle’s company, W.Y. Atap, were liable to Ms. Reimer in negligence for damages in the amount of $238,359, plus pre-judgment interest calculated under the Court Order Interest Actfrom January 2013 until December 2018, minus $21,743.59 on account of interest already paid.
  • Mr. Gravelle and W.Y. Atap were both liable to Mr. Reimer in breach of contract for damages in the amount of $62,556.
  • All other claims against the defendants Mr. Gravelle and W.Y. Atap were dismissed.
  • All claims against the remaining defendants were dismissed. 

Reimer is illustrative of the risks of private investing and placing trust in parties that have a personal interest in investing your funds in specific ventures. The promised return rate of interest as well as Mr. Gravelle’s own interests in South Asian Post were red flags that may have been missed or ignored as a result of the pre-existing relationship between Ms. Reimer and Mr. Gravelle and the financial difficulties Ms. Reimer was experiencing.

The case does demonstrate that there are several legal paths to seek to recover against parties who negligently or improperly obtain and invest your funds as well as the various remedies available for each of those paths. If a person finds themselves the victim of a poor investment, there may be many ways by which to seek recovery of their lost investment.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes and builders’ liens issues. If you have any questions about any commercial 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.

If you receive child or spousal support, and you spent money obtaining a court order to get child or spousal support then the money spent to get the order may be tax-deductible to you. Calculating the amount of the deduction is usually estimated by the lawyer who provided the service and may be based on the number of issues dealt with by the lawyer during the case.

The following conditions are generally necessary before legal fees and disbursements can be tax-deductible:

  1. The fees were paid by a support recipient to obtain, or enforce, or increase an order for child or spousal support, or to defend a reduction of child or spousal support;
  2. The tax deduction is used by the support recipient in the year the fees and disbursements accrued; and
  3. If you are awarded costs by the court and they are received in the same year you are making your tax deduction claim, then the amount received for costs must be offset against the amount claimed as a tax deduction. For example:
  4. Legal fees and disbursements claimed $1,000
    Costs received in same year – $500
    Tax deduction allowed = $500

If the costs are received after the tax deduction is claimed, then the money received as costs will be considered taxable income in the year received.

A payor of support cannot deduct his or her legal fees or disbursements.

Taxpayers cannot deduct legal fees incurred to establish custody or access of children, obtain a divorce, negotiate a separation agreement, or to collect lump-sum spousal support.

Whether or not your legal fees are tax-deductible can only be accurately answered by someone proficient in tax law. Having a family lawyer who has tax and other lawyers close by to consult is a definite advantage.

By Patrick M. Gaffney, practicing family law at Pushor Mitchell
Edited by Melodie Lind, practicing tax law at Pushor Mitchell


The information in this article is not to be taken as legal or tax advice and is provided for information purposes only.

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

Broadly speaking, the party that is in breach of a contract is refusing to perform duties or obligations under that contract and, as a result, is “repudiating” the contract. Repudiation can be established both at the time of refusal to perform obligations and can also be anticipatory in nature when a party clearly indicates by its words or actions that it intends to not perform its contractual obligations.

In the recent case of Reddy v Bhullar, 2018 BCSC 1935 (CanLII) the plaintiff entered into five contracts to purchase different properties. The contracts required two deposits of $165,000 and $327,000 respectively. An agreement was reached for the contracts to be assigned to Mr. Bhullar and for Mr. Bhullar to pay the two deposits. A part of the deal was that the plaintiff and Mr. Bhullar would market the contracts for further assignment and share in the profits from doing so.

Mr. Bhullar paid the first deposit and negotiations took place to further assign the contracts to a third party, Mr. Biniaz. The negotiations for the further assignment collapsed, resulting in the parties facing a situation where Mr. Bhullar was going to be unable to pay the second deposit of $327,000.

The plaintiff wrote to Mr. Bhullar advising of his intention to pay the second deposit and alleging that, as a result, Mr. Bhullar would have no right to share in the profit from the properties. The plaintiff also wrote to Mr. Bhullar advising that he was attempting to pay the second deposit and suggesting that Mr. Bhullar had repudiated the contract which assigned the purchase contracts to Mr. Bhullar.

The effect of the Plaintiff’s communications became the central issue as Mr. Bhullar was able to enter an agreement to assign the contracts to a Mr. Biniaz at a lower price and in exchange for the Mr. Biniaz repaying the $165,000 deposit. There was also a third assignment by Mr. Biniaz to his own numbered company which triggered a $50,000 payment which was to be shared with the plaintiff.

The plaintiff, unhappy with the deal with Mr. Biniaz and presumably the modest profit he would enjoy as a result, sought to undo the assignments to Mr. Biniaz and his company on the basis that the Plaintiff had accepted Mr. Bhullar’s repudiation of the first assignment. If this position was accepted, Mr. Bhullar would have had no ability to further assign the purchase contracts as a result of the repudiation of the assignment contract between Mr. Bhullar and the Plaintiff.

The court held that the plaintiff’s communications affirmed assignment contract to Mr. Bhullar rather than having communicated an acceptance of Mr. Bhullar’s repudiation. The court found that there was not a clear and unequivocal statement by the plaintiff to Mr. Bhullar that Mr. Bhullar had repudiated the assignment contract and the plaintiff accepted such repudiation; rather, there were negotiations to attempt to salvage the contractual relations between the parties and to not lose the first, $165,000 deposit.

The plaintiff attempted to keep all options open to himself by asserting that Mr. Bhullar’s was required to perform his contractual obligations and by also attempting to assert that the plaintiff had accepted Mr. Bhullar’s repudiation of the assignment contract. In doing so, the plaintiff took an equivocal position contrary to the legal maxim that requires accepting repudiation of a contract to be by an unequivocal act or words of acceptance.

Reddy v Bhullar is illustrative of the need to be clear as to what rights a non-breaching party to a contract is asserting in the face of another party breaching the contract. The non-breaching party must make a decision as to whether it is going to require performance of the contract a accept repudiation of the contract and bring the contract to an end a as a result. Different rights and remedies flow from a decision to accept or reject a repudiation of a contract and it is crucial to appreciate the consequences of decisions, communications and actions which occur in the face of another party breaching a contract.


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

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

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

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

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


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

The Central Okanagan Economic Development Commission (COEDC) has released its 2018 fourth quarter economic indicators report. The report, and previous reports, can be found here.

Some of the exciting highlights include:

  • the unemployment rate being down to 5.0% from 5.5% in same quarter the previous year;
  • a 49.3% increase in job postings; and
  • a record 2,080,372 passengers at YLW in 2018, making it Canada’s 10th busiest; and
  • business licenses seeing a 4.5% increase in 2018 with Peachland leading the way at a 14.2% increase.

Please also see some of the infographics below excerpted from the report.

The statistics all point to an exciting future and continuing growth in the Okanagan. They also point to some challenges the Okanagan will be facing and the opportunities that come with approaching and resolving such challenges.

We are excited by the growth the Central Okanagan has experienced and look forward to assisting our clients with respect to challenges and opportunities the future foretells. We are also proud to have our own Jeremy Burgess and Keith Inman representing the professional services sector on the COEDC advisory board and the expertise and insight their participation in the COEDC provides.

Note the COEDC collects the above third party statistical data from BC Stats, Statistics Canada, CMHC, and local governments in the Central Okanagan. Caution should be used in the interpretation of month-to-month statistics, in particular the Labour Force Survey, a monthly sample survey which provides unemployment rates of the Canadian labour market.

Thank you to the COEDC and Corrie Griffiths for preparing the economic indicators report and much of the content of this article.

We often see cases in our office where an employer has to deal with an employee who has behaved in outrageous fashion. Examples are: drinking or consuming recreational drugs at work; assaults of other employees or customers; and extended absence without prior explanation.

The gut reaction of most employers is to terminate the employee in question without much inquiry into the background of the conduct. The employer is more likely to dig into the reason behind the bad conduct if the employee has a sterling employment record.

Judges, adjudicators, and arbitrators in enforcing our employment and human rights laws expect employers to treat all employees as they would the employee with the sterling record. In other words, the law does not allow an employer to seize upon an incident in an unquestioning way to justify a termination.

The reason for this development in our law is that much of the conduct described above can be caused by a momentary lapse of judgment or be directly related to a disability on the part of the employee. It is rare that any of the conduct described above is intentional and/or premeditated.  Consider the example of a long-term employee who upon receiving news of the death of his best friend consumes too much alcohol and then makes an error in judgment like engaging in an abusive verbal attack on a co-worker. This would be an example of a momentary lapse in judgment which would not necessarily justify an immediate termination. The more appropriate response would likely be to investigate the circumstances behind the verbal assault and either offer assistance to the employee to overcome his grief or what might be an alcohol problem (disability).  A warning might also be appropriate.

Another example may be an employee who one day “snaps” in the workplace and assaults another employee.  The employee unbeknownst to the employer has a bipolar disorder and the aberrant behaviour resulted from the employee deliberately or inadvertently ceasing his or her medication. Rather than terminating this employee, the employer has a responsibility to reasonably investigate and likely accommodate the employee by working with him or her to prevent such an occurrence in the future.

Employees who unreasonably refuse to participate in an accommodation process will not be protected by the law. In the examples above if either employee unreasonably refused to take part in measures designed to assist them and to prevent the aberrant behaviour termination may be justified.

Employers who jump the gun and terminate an employee without proper investigation may be liable for damages under human rights legislation or our common law.  In some cases the terminated employee would be entitled to reinstatement in addition to damages.

The bottom line is that employers should take reasonable steps to understand an employee’s motivation and the circumstances leading to the bad behaviour before making the decision to terminate the employee. This is particularly true where the employee’s conduct is unusual or unexpected in relation to their history with the employer.

The Registered Disability Savings Plan (“RDSP”) is a savings plan provided by the federal government to help parents and others save for the long-term financial needs of a disabled individual. The RDSP is a rather complicated program and the intent of this article is to briefly describe the requirements to qualify for an RDSP and the benefits of the program.

Qualification:

An individual is eligible as a beneficiary of an RDSP if he or she is a Canadian resident under the age of 60 and is qualified for the Disability Tax Credit (“DTC”).

The DTC is non-refundable tax credit that people with severe and prolonged impairment may be eligible for. A medical practitioner must certify that the individual has such impairment. In general, a person must meet one of the following criteria:

  • be blind,
  • be markedly restricted in at least one of the basic activities of daily living,
  • be significantly restricted in two or more or the basic activities of daily living (can include a vision impairment), or
  • need life-sustaining therapy.

In addition, the person’s impairment must meet both of the following criteria:

  • be prolonged, which means the impairment has lasted, or is expected to last for a continuous period of at least 12 months, and
  • be present all or substantially all the time (i.e. at least 90% of the time).

A beneficiary can have only one RDSP at any given time.

Benefits of an RDSP:

The funds in an RDSP grow tax-free and up to $200,000 can be contributed to the account without affecting the beneficiary’s disability benefits. Anyone can contribute to an RDSP and such contributions can be withdrawn without being included in the income of the beneficiary. Unlike a RRSP, however, contributions are not tax-deductible.

The primary benefit of an RDSP is that they may allow the holder of the RDSP to qualify for two federal government programs: the Canada Disability Savings Bonds (“Bonds”) and Canada Disability Savings Grants (“Grants”), which are both paid directly into the RDSP. The amount of Bonds or Grants that a beneficiary of an RDSP may qualify for depends on the his or her family income.

The government will pay a Bond of up to $1,000 a year to a beneficiary of an RDSP with a family income of less than $30,450. This amount is reduced as the beneficiary’s family income exceeds that amount and no Bond is paid if the family income exceeds $46,605. No contributions to the RDSP must be made to get the Bond and the lifetime Bond limit is $20,000. A Bond can be paid into an RDSP until the year in which the beneficiary turns 49.

The Grant operates by matching contributions into the RDSP. If the beneficiary’s family income is less than $93,208:

  • on the first $500 contributed into the RDSP, the beneficiary will receive $3 for every $1 contributed (i.e. a maximum of $1,500), and
  • on the next $1,000 contributed to the RDSP, the beneficiary will receive $2 for every $1 contributed (i.e. $2,000 maximum).

The maximum Grant for any one year is $3,500.

If the beneficiary’s family income is greater than $93,208, on the first $1,000 contributed to the RDSP, the beneficiary will receive a Grant of $1, with a maximum Grant for any one year of $1,000.

The maximum lifetime amount that a beneficiary can receive in Grants is $70,000 and Grants can be received on contributions made until the beneficiary turns 49.

Long-Term Savings

The purpose of the RDSP is to provide benefits to disabled individuals for long-term savings. If funds are withdrawn from the RDSP before the beneficiary turns 60, penalties could apply such that the last ten years of federal government contributions may need to be returned.

The Bonds, Grants and investment income earned in the RDSP are included in the income of the beneficiary when they are withdrawn and taxed accordingly; however, they are excluded for the purpose of calculating Old Age Security (OAS) and the Guaranteed Income Supplement (GIS).

The rules for RDSPs are quite complex. However, an RDSP can provide some significant benefits to a disabled individual who qualifies for the plan, with total government contributions of up to $90,000 in both Grants and Bonds that the individual would not otherwise qualify for without an RDSP.

We are happy to help if you have questions about RDSPs. Please contact Zach or another member of our Tax Law Team.

The following article is part one of a series of articles that document some key considerations about franchising including some of the pitfalls and opportunities which our firm has seen and advised upon over the past two years. For a full .pdf version of this article, please click here.

On February 1, 2019 two years will have passed since the British Columbia Franchises Act came into force. Since the enactment of the legislation, our Franchise Law Team at Pushor Mitchell has assisted both franchisors and franchisees in working with and ensuring they are compliant with the Franchises Act. This article is the first in a series of articles that documents some key considerations about franchising that we have seen over the past two years.

One of the main features under the Franchises Act has been the implementation of a Franchise Disclosure Document. The Franchise Disclosure Document is intended to summarize all material facts regarding the franchise. A material fact is defined as any information about the business, operations, capital or control of the franchisor or franchisor’s associate, or about the franchise that would reasonably be expected to have a significant effect on the value or price of the franchise to be granted or on the decision to acquire the franchise. The Franchises Regulation specifically sets out the requirements of the type of information that must be included in a Franchise Disclosure Document. This includes, but is not limited to:

  • financial statements of the franchisor;
  • business information about the franchisor and its directors; and
  • a summary of the franchisee’s costs and obligations.

The rationale behind a Franchise Disclosure Document is to ensure a prospective franchisee has all the information deemed necessary to make a fully informed decision on whether to proceed with the purchase of the franchise. The Franchise Disclosure Document must be provided by a franchisor to a franchisee at least 14 days before the parties enter into a franchise agreement.  A Franchise Disclosure Document can be delivered personally or by email. However, it is important to emphasize that a Franchise Disclosure Document must be delivered as one complete document and delivered at one time. Legally, it is not adequate for a franchisor to provide the Franchise Disclosure Document to a prospective franchisee and then follow up with attachments and additional information at a later time. This is a common pitfall for franchisors, who will sometimes provide the Franchise Disclosure Document to a prospective franchisee and then follow up (sometimes days later) with the financial statements or other schedules that should have originally been included.

The Franchises Act provides that the failure to provide a complete Franchise Disclosure Document may grant franchisees with a right to rescind the franchise agreement within 60 days after receiving a Franchise Disclosure Document if the contents did not meet the requirements under the Franchises Act. If a franchisor never provided the franchisee with a Franchise Disclosure Document the franchisee has the ability to rescind the franchise agreement within two years.

We are happy to help franchisors prepare their Franchise Disclosure Document to ensure that the document meets the requirements under the Franchises Act and Regulation. We can also assist prospective franchisees in reviewing a Franchise Disclosure Document to determine if the document contains the appropriate information to make a fully informed decision about the franchise.  Please contact Patrick or another member of our Franchise Law Team.


Patrick Bobyn is a business and real estate lawyer at Pushor Mitchell LLP who acts for both franchisors and franchisees.  You can reach Patrick at 250-869-1286 or bobyn@pushormitchell.com.  For more information on our Franchise Law Team, please visit http://www.pushormitchell.com/service/franchising

When a builders’ lien is filed, it can cause all manner of disruptions to financial, contractual and business relations and there can often be urgency in getting a lien discharged while, at the same time, ensuring the right to dispute the underlying claim giving rise to the lien is preserved.

The Builders Lien Act (BLA) provides different mechanisms for discharging and dealing with builders’ liens and this article focuses one of those remedies found in s. 24 of the BLA. S. 24 of the BLA provides that a land owner, contractor, subcontractor or any other person liable on a contract or subcontract can apply to have the court cancel a builders’ lien on the giving of sufficient security for the payment of the claim. The key question that then arises in a s. 24 application is what sufficient security is.

The question of what constitutes sufficient security for the purpose of s. 24 of the BLA was at the heart of the decision in Westurban Developments Ltd. v Forged Construction Ltd., 2018 BCSC 2354 (CanLII).

In that case, Westurban Developments was a general contractor who had retained Forged Construction as a subcontractor. Forged Construction filed a builders’ lien for $568,986.26, claiming that such an amount was due or was going to become due in respect of a $689.433.00 fixed price contract.

The Court held at para. 4 that s. 24 of the BLA establishes a two-prong test: (1) the Court must determine whether the amount of lien claimed is sustainable and (2) if so, to determine what is sufficient security.

On the first prong, the Court held that Forged Construction could only claim for work actually performed. The evidence before the Court established that Forged Construction had only completed 64% of its work. As such, the capped value of work performed was $441,237.12, being 64% of the total fixed price of $689.433.00. Notably, a party cannot lien for anticipated lost profits in the face of a wrongfully terminated or performed contract; such losses are claimed through a legal action, not by a lien.

The Court went on to find that Forged Construction had already been paid $272,253.02. Accordingly, the paid amount was subtracted from the capped value of the work performed ($441,237.12) leaving $168,984.10 as the total lienable amount. The Court noted this amount to include the holdback on the work performed.

The Court then went on to the second prong of the analysis; determining what amount of security was appropriate. Westurban Developments urged the Court to find that $1.00 was sufficient security, essentially amounting to a claim that Forged Construction’s lien was invalid. The Court did not go that far; instead, finding that there was evidence of significant deficiencies in the work performed by Forged Construction. While there is limited discussion of the Court’s reasoning, based on the finding that there were significant deficiencies in the work performed by Forged Construction, the Court found that sufficient security would be 85% of the total lienable amount of $168,984.10, being $143,636.48. Upon posting of the $143,636.48, Westurban Developments would be able to discharge Forged Construction’s lien.

Westurban Developments Ltd. v Forged Construction Ltd. is illustrative of some of the issues that arise when a party seeks to discharge a lien by posting of security. Westurban Developments was found to have demonstrated that the face value of the lien was substantially inflated and advanced further, supported arguments that the lienable amount ought to be further reduced. This resulted in substantially less security being posted than the face value of the subject lien. While not addressed in the decision, it also appears to be the case that, since Forged Construction’s lien greatly exceeding the amounts that were properly lienable, Forged Construction was exposed to substantial damages and costs including a fine under s. 45 of the Act at a later date.

It is likely that with well-informed legal advice, Forged Construction would not have filed such an excessive lien. It likewise could have avoided the significant exposure to damages and costs that flow from its excessive liens and potentially the loss of credibility and having to continuously acknowledge its excessive lien in the remaining fight over what amounts were owed and to which party.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes and builders’ liens issues. If you have any questions about contractual disputes or builders liens’ issues, 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.

British Columbia’s new Employer Health Tax came into force on January 1, 2019. The Employer Health Tax is an annual payroll tax payable by British Columbia employers. As previously reported here, the tax will offset the loss in revenue from medical service plan (MSP) premiums which are being phased out on January 1, 2020.

The Employer Health Tax applies incrementally to companies with payrolls over $500,000, increasing at $250,000 intervals. The below chart summarizes the impact of the new tax on businesses.

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

Charitable and non-profit employers are subject to a higher exemption amount and pay the Employer Health Tax at a reduced rate.

Employers required to pay the new tax must register for an Employer Health Tax account using eTaxBC. Below is a list of important dates employers will want to keep in mind to ensure that they meet their new obligations.

Date Action
January 7, 2019 Registration to pay the Employer Health Tax opens
May 15, 2019 Registration deadline for employers required to pay instalments in the 2019 calendar year
June 15, 2019 First instalment payment due date
December 31, 2019 Deadline to register for all other taxable employers
March 31, 2020 Deadline for employers to file and pay their first return

Although the tax came into force on January 1st, MSP premiums will not be eliminated until next year. Instead, MSP premiums are reduced by 50% for the 2019 calendar year. As such, employers who pay a portion of their employees’ MSP premiums remain responsible for paying their share of MSP premiums in addition to the new Employer Health Tax.

In a recent Supreme Court of British Columbia case the court confirmed that if you are injured by a hit and run driver, you do not need to do everything conceivable in order to identify the driver of the hit and run vehicle; you only need to take reasonable efforts to identify the driver (Ghuman v. ICBC 2019 BCSC 3). You may be asking yourself, where does this arise and why might this be important to me?

Picture this, while you are stopped at a stop sign, another vehicle slams into your vehicle and then hastily speeds away. In the seconds and minutes that follow you are likely in shock and potentially in pain. Once you determine, however, that you are not catastrophically injured, you may get out of your vehicle and look around only to find that there is no one around, including the vehicle that collided with you. Who do you hold accountable for this hit-and-run?

That is the scenario Mr. Ghuman found himself in when his vehicle was struck by another vehicle in Surrey in 2014.

Section 24 of the Insurance (Vehicle) Act says that ICBC will be responsible for compensation, even if you don’t know the identity of the driver that hit you, as long as you can establish that you have made all reasonable efforts to identify the owner and driver of the vehicle. In this case, Mr. Ghuman looked around at the scene of the accident but was unable to identify any witnesses, he reported the incident to the police the following day, he put up flyers in the area asking for anyone with information to come forward, and he retained a lawyer who helped him with a second round of flyers and posted an advertisement in the newspaper.

ICBC took the position that because Mr. Ghuman waited until the following day to phone the police, because he did not follow up with them after that initial report and because he did not interview surrounding businesses in the days following the accident that he had not done enough and that they should be allowed to deny him compensation he was otherwise entitled to.