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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 therefore remain fully operational while working remotely, and can manage meetings virtually and document sharing electronically to continue to provide a high level of service. Our office remains open for only the limited essential work that cannot be done remotely and for essential client meetings by appointment only. Rest assured we have instituted the recommended protocols to maintain the health and safety of all within our office environment. As the COVID-19 situation develops, we may be required to change our operations and will advise accordingly.

We request that to the extent possible, documents and written materials be sent electronically. If documents must be mailed or couriered please advise via email that we should be expecting receipt of same. Thank 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.
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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.

 

The rights and remedies that attach to commercial tenancies are generally prescribed by the lease agreement giving rise to the tenancy. There is generally great latitude for parties to negotiate their relations to each other. That said, the Commercial Tenancy Act continues to apply to commercial leases.

The British Columbia Law Institute described the split between the Commercial Tenancy Act and modern leasing practices as “very wide”, as often “irrelevant to the contemporary commercial leasing sector” and described the outdating, technical and often inapplicable language of the Commercial Tenancy Act. For such reasons, it can be difficult for parties in the midst of negotiating commercial leases or who find themselves in a dispute about a commercial lease to understand what rights and remedies might be prescribed by the Commercial Tenancy Act or how to avail themselves of the rights and remedies of the Commercial Tenancy Act.

A recent and relatively simple example of the continuing application of the Commercial Tenancy Act to modern leases can be found in the case of Chew Fidelity Ltd. v Greater Victoria Contracting Services Ltd., 2019 BCSC 1474 (CanLII).

In the case a dispute arose between landlord and tenant which centered around differing allegations as to what lease agreement governed the relationship between the parties. The landlord alleged the existence of a six-month lease for 3,000 square feet and the tenant alleged a five year plus one-month lease for 10,000 square feet. Depending on the allegation that prevailed, the tenant was either overholding by refusing to give up possession of the leased space – or remained in the midst of its lease term.

Ultimately the court found that the six-month lease was consistent with the circumstances, communications of the parties and other evidence before it and further determined the five-year lease to be a forgery. Based on these findings and the notice given by the landlord to the tenant to vacate the premises, the court further found that the tenant was overholding by being in wrongful possession of the leased premises.

Having made these findings, the court then applied ss. 18 and 21 of the Commercial Tenancy Act, which provide landlords with the ability to apply for and for the court to issue an order for a landlord to regain possession of a premises where a lease has expired and a tenant wrongfully refuses a written demand to give up possession. The court ordered that a writ of possession be issued which gave the landlord the ability to enforce its possession rights.

What is important about the application of ss. 18 and 21 of the Commercial Tenancy Act is the requirements prescribed by legislation which had to be met for the writ to be issued. Those requirements included:

  1. the landlord providing the court with an affidavit setting out the terms of the lease if oral;
  2. the landlord providing a copy of the lease to the court if the lease was in writing;
  3. the landlord explaining why a written copy of the lease cannot be provided if the lease was written and not available and providing the court details of its terms;
  4. the landlord providing a copy of the written demand that the tenant give up possession to the court, stating the refusal of the tenant to give up possession and the reasons given for such refusal; and
  5. any other explanation regarding the tenant’s refusal.

Chew Fidelity Ltd. v Greater Victoria Contracting Services Ltd. highlights how, for all its archaic language and confusing structure, the Commercial Tenancy Act continues to affect modern commercial leases.

It is important for parties engaging in commercial leases, both tenants and landlords, to appreciate what rights and remedies are or are not created by their lease and how such rights and remedies might be further affected by the Commercial Tenancy Act. When commercial tenancies are in dispute, important rights and remedies can be lost if certain steps required by the Commercial Tenancy Act are not taken precisely and in a timely fashion. Early legal advice can be key to more positive outcomes.


Jeremy Burgess is a litigation associate at Pushor Mitchell who assists clients in contractual and leasing disputes, including those related to commercial tenancies. 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.

In my practice I frequently receive inquiries from workers in their forties to sixties who are seeking assistance with old injuries. Often those injuries involve broken bones, injured joints, herniated discs, or head injuries suffered early in their working careers. Young people tend to be able to recover function more often and more quickly than older workers. Quite often though their recovery is not complete and nagging pain or loss of function continues for these workers to some degree for the rest of their lives.

WorksafeBC processes over 100,000 claims every year. If a young worker seems to recover quickly from a traumatic injury he or she is encouraged and assisted to return to work as soon as possible. As a result, underlying permanent injuries can be overlooked. WorksafeBC could close the file without adjudicating (deciding) whether a permanent injury has occurred. Stoic workers are the most frequent victims of early file closing.

The problem in these cases is most often that twenty or so years later the part of the body injured, or made more vulnerable to injury, flares up with or without another accident. The worker returning to the Board for assistance is sometimes turned away because the current accident is not seen as being serious enough to explain the degeneration observed on investigation.

Workers in such cases can request that the Board adjudicate whether the original injury caused a disability (if it didn’t do so at the time of the original injury). If the Board refuses such adjudication or adjudicates and finds no disability its decision can be appealed (by the review and reconsideration process and/or by appeal to the Workers’ Compensation Appeal Tribunal). If a disability is accepted or allowed on appeal the worker may be entitled to retroactive compensation and an ongoing pension and in some cases rehabilitation benefits.

Even if the Board does not accept responsibility retroactively for the disability, the flare-up could be accepted as compensable as an aggravation. In other words, the fact that the current incident does not explain the observed pathology, the greater degree of disability may still be compensable as an aggravation of a pre-existing condition.

The other issue we frequently see with young workers is the Board setting earnings a level that is not reflective of the young worker’s long-term income earning capacity. The earnings level set on the claim is very important as it guides entitlement to the amount of wage loss benefits, pensions, and degree of vocational rehabilitation assistance available to the worker. Young workers should carefully scrutinize earnings decisions and challenge decisions that do not fairly reflect their long-term goals and potential earnings.

As I have written about before, Board decisions must be appealed within 90 days. This is a rather strict deadline and exceptions are rarely made.

In my initial estate planning meeting with clients, one very important question that I ask is “Do you hold your real estate as joint tenants or tenants in common?” I am often answered with “We are both on the title” which doesn’t really answer my question. The reality is, lots of spouses have owned their principal residence for many years and can’t necessarily remember how they hold title. They know they are both registered on title, but whether they were registered as a ‘joint tenant’ or a ‘tenant in common’ is often a faded memory.

Clients will often ask “Does it make a difference?” The answer is yes, it can have a HUGE impact on an estate plan and I will explain why here. If a property is held in joint tenancy, when one joint tenant dies, the entire property belongs to the surviving joint tenant (or joint tenants as the case may be).

Whoever is the last joint tenant to die owns the property. Only that last person can use his or her Will to give the property to someone else. So, for example, Sarah, Julia and Claire own a property as joint tenants. Claire passes away. She was married to Chris. Chris thought that Claire’s share would be his when Claire passed away but it isn’t because the property was held in joint tenancy with Sarah and Julia. Therefore, when Claire passes away, her share automatically flows to the surviving joint tenants Sarah and Julia, by right of survivorship. Chris gets nothing. Then, Julia passes away and Sarah is left as the sole owner of the property. The property will then pass to Sarah’s beneficiaries through her Will. There will be nothing for Claire’s or Julia’s beneficiaries.

If Sarah, Julia and Claire owned the property as tenants-in-common, the story would be very different. They would each own a third and that third would belong only to them. They can leave their third to whomever they wish in their Will. In this way, each of the individual owners retains control of her share and is able to gift her share to whomever she wishes.

Between spouses, a title is almost always held as joint tenants. This is so that when the first spouse dies, the other one will automatically own the family home without having to go through probate and pay probate taxes.

Thus, confirming how you hold title to your property is extremely important for your estate plan. Title holdings are easily changed via registration at the Land Title Office, however, sometimes property transfer tax may be payable so it is very important to discuss your circumstances with your lawyer.


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!

We all know that we have to pay taxes.  Taxes are important and provide the funds for many of our social programs that we hold dearly.  But what if you get on the wrong side of the Canada Revenue Agency (CRA).  Will you be treated fairly?  Will you be presumed to be innocent until proven otherwise?

For many Canadians, taxes are the single largest expenditure we make in a year.  We think that if we file our tax return, report all of our income and pay our taxes, we are fine. But what if the CRA disagrees?  What if the CRA accuses you of under-reporting your income?  What if the CRA audits you and hits you with a massive reassessment that you believe is wrong.  Do you assume that the CRA will believe you?  Do you assume that you are protected by a presumption of innocence unless the CRA can prove otherwise?

If you do, you are wrong.  There in no presumption of innocence in tax law unless you are accused of a criminal act such as tax evasion.

Income tax reassessments can be scary.  They can be financially devastating.  They can be emotionally draining, and in some cases, a large reassessment can wipe you out financially or force you into bankruptcy.  In some cases, they can be worse than a criminal charge.

With so much at stake, you would think that there are processes in place to protect you.  There are.  You can object to the CRA, and if you aren’t successful, you can appeal to the Tax Court.  But this appeal process can be slow and expensive and, in some cases, so unfair that it is easier just to pay than to go through the ordeal with the CRA.  In my over 30 years in practice, I can safely say that many taxpayers will pay a tax reassessment even though they know it is incorrect rather than go through the process of fighting it.

Sometimes it is too small to fight it, so you just pay it even though you shouldn’t have to.  Sometimes the auditor will threaten to audit other issues if you don’t agree to the reassessment.  Sometimes you don’t have the means or ability to fight, and so it just goes to the CRA Collections unit.

And in some cases, the reassessment is so complicated that you don’t even know what you are alleged to have done wrong.  The two worst areas that I see are: (1) Arbitrary or Net Worth Assessments, (2) Gross Negligence Penalties.

An Arbitrary or Net Worth Assessment is where the CRA reassesses you on what they think your income was.  It’s a very powerful tool.  I can certainly see situations where it needs to be used, such as if a person simply refuses to file a tax return, or if the person has unreported income from criminal activities. The Courts have acknowledged that extraordinary measures are needed in some circumstances but recognize that an Arbitrary or Net Worth Assessment should be a tool of last resort if there is no other way to determine a person’s income.

But I am seeing it used in too many situations where other normal audit techniques should be used.  Effectively, a net worth assessment is a complicated process that estimates what your income should be based primarily on the bank deposits and withdrawals of you and your family members over a three- year period.  Once you are reassessed, you are guilty unless you can prove that the CRA’s complicated spreadsheets have an error somewhere in them.  These calculations are massively difficult to decipher, even for experienced accountants.  There are no safeguards or guidelines for their preparation that I have seen.

I have helped people for over 30 years to prove that reassessments are incorrect.  So I know that the CRA makes mistakes.  Taxpayers make mistakes too. Usually a mistake can be fixed.  But with an arbitrary or net worth assessment, the cost and effort required to fix the mistakes are usually well out of proportion in relation to the amount of the reassessment.  Effectively, there is no fairness or due process.  The process itself is part of the punishment.

The second area is Gross Negligence Penalties.  These are penalties of 50% of the tax you owe. These usually arise when the CRA identifies that you have made a mistake.  The CRA reassesses you to charge you the correct amount of tax and charges you interest.  But the CRA also has the discretion to impose 50% gross negligence penalties on top of the tax and interest.

Note that gross negligence is not tax evasion.  That is a criminal charge.  Gross negligence penalties are a civil penalty if the CRA thinks you knew or “ought to have known” that your tax return was incorrect.  I have seen the CRA increasingly impose or threaten to impose gross negligence penalties.  Why is this?  Is this a new source of revenue for the Government?  Is it a way to get taxpayers to acquiesce to audit adjustments?

The Courts have said that the standard to impose gross negligence penalties is very high and should be imposed in the clearest of cases.  But that is not my experience in reviewing tax audits.

Don’t rely on the Charter of Rights or the Taxpayers Bill of Rights to protect you if you are audited by the CRA.  Get professional assistance and, if you can, be prepared to go to Court to be treated fairly and impartially.

Our prior articles regarding franchises have focused mainly on franchisors. However, we often advise potential franchisees. Because of the perception that the terms of a Franchise Agreement are non-negotiable, we are sometimes asked if there is any valuable advice we can provide to franchisees. We believe that there is!

First, it isn’t entirely true that Franchise Agreements are non-negotiable. The more established the franchise, the less likely they will negotiate the terms of their agreement. However, with newer franchises or franchises that are establishing their presence in British Columbia, negotiation is often possible. The franchisor may agree to an addendum or side-letter amending or clarifying certain business terms.

Also, we believe that it is important for franchisees to understand the terms of the Franchise Agreement, even if it can’t be amended. The franchisee should understand their rights and obligations and ensure that their understanding of the business relationship is reflected in the Franchise Agreement. Franchise Agreements usually contain an “entire agreement” clause, the intent being that the only representations and warranties that the franchisee can rely upon are those set out in the Franchise Agreement. If a franchisor has promised something to the franchisee, it is important that it is included in the Franchise Agreement (or that the franchisee understands that they can’t rely on that promise).

In addition to helping with the Franchise Agreement, we can review other agreements sometimes required by franchisors, such as General Security Agreements and Personal Guarantees.

Finally, we can assist franchisees with:

  • Incorporating a company to act as franchisee;
  • Reviewing and negotiating the lease for the franchisee’s premises;
  • Advising regarding employment law matters; and
  • Reviewing bank financing documents.

If you are a potential franchisee and would like assistance with any of the above, please contact Andrew or another member of our Franchise Law Team.


Andrew Brunton is a business and real estate lawyer at Pushor Mitchell LLP who acts for both franchisors and franchisees. You can reach Andrew at 250-869-1135 or brunton@pushormitchell.com. For more information on our Franchise Law Team, please visit http://www.pushormitchell.com/service/franchising.

As you may be aware, as part of a multinational initiative to combat money laundering and tax evasion, there are new requirements under the Canada Business Corporations Act regarding beneficial ownership of federal corporations which came into effect June 13, 2019.

All federal corporations are now required to keep an additional register called an Individuals with Significant Control Register (ISC Register). We will prepare and keep the ISC Register for our clients, but we require some information from our clients in order to do so.

An individual with significant control is defined as an individual who owns, controls or directs, who has significant influence over the corporation without necessarily owning a significant number of shares, or has a combination of any of these factors. A significant number of shares is either, 25% or more of the voting shares, or 25% or more of all shares based on fair market value of the shares.

If an individual owns or controls a significant number of shares with one or more other individuals, while each of them may not be an individual with significant control on their own, together they become an individual with significant control when they own or control shares.  In such a case, each individual must be recorded on the ISC Register.

Importantly, an individual with significant control need not be a shareholder at all – the direct or indirect influence giving rise to “control in fact” could arise from any kind of influence based on a legally enforceable right to effect a change to the board of directors or its powers. This could take a variety of forms and may include:

  • each individual who, jointly with one or more other individuals, holds shares meeting the “significant number of shares” threshold;
  • each individual who, by an agreement to act together with one of more other individuals (such as through a Shareholders’ Agreement), jointly meets the “significant number of shares” threshold; and
  • individuals with the right to nominate or remove a majority of the board of directors (whether such individuals are shareholders or not).

The ISC Register must include the following information for any individuals with significant control of the corporation:

  • name of individual with significant control of the corporation
  • individual’s date of birth
  • last known address
  • jurisdiction of residency for tax purposes
  • date on which the individual acquired significant ownership or control
  • date on which the individual ceased to have significant ownership or control
  • description of how the individual meets the definition of “significant control”, including their right, title and interest in and to the shares of the corporation.

The ISC Register must include whether shareholders own the shares directly or if they are holding them on behalf of someone else.

As well, if a corporate entity or a trust holds 25% or more of the voting shares or fair market value, we need to include the names of the individuals who have significant control of the corporate entity or in the case of a trust, the trustees and possibly the beneficiaries.

Directors, officers and shareholders have obligations to provide accurate information for their ISC Register. Fines of up to $200,000 or imprisonment for a term up to six months may apply for providing false or misleading information.

Note that similar changes are coming for companies incorporated under the British Columbia Business Corporations Act.

If you wish to discuss this matter or if you have any questions, 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 and 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 assists clients planning for their future with estate and incapacity planning as well as assisting executors navigate the waters following the loss of a loved one. This can 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.

An important object of the Builders Lien Act, S.B.C. 1997, c. 45 (the “BLA”) is to assist those who contribute their work and materials to a construction project in being paid. However, the use of builders liens and other remedies afforded by the BLA is commonly misunderstood. We regularly hear from individuals who have proceeded (or are about to proceed) based on a misunderstanding of their rights and obligations under the BLA.  Often, the result is that creditors and debtors will have compromised their legal positions.

Below is a list of ten (wrong) things we commonly hear:

  1.  “I am out of time to file my lien because I have not worked on the project for more 45 days.” While 45 days is the “magic number” to remember for lien filing deadlines, the start of the time limit changes depending on the contractor’s relationship to the owner. If the contractor was hired directly by the owner, the 45-day deadline will run from when improvement has been completed or abandoned. However, if the owner has hired someone to do substantially all of the work respecting an improvement, the 45-day deadline will not start to run until the contract of that individual (called a “head contractor” in the BLA) has been completed, abandoned or terminated. Also, the issuance of a proper certificate of completion may cause the lien filing deadline to commence before the overall improvement is complete. Suffice to say, the fact that someone has not worked on a project for 45 days may not mean he’s out of time to file a valid claim of lien.
  2.  “I can’t file a lien because I don’t have a written contract”. At the risk of oversimplification, you may file a claim of lien if you have provided work and/or supplied material in relation to a construction project. The fact that a contract has not been reduced to writing does not mean you cannot file a claim of lien. Even where there is no legally-binding contract (i.e., the essential terms of a contract, such as price, have not been agreed), one may claim for the estimated value of the work.
  3.  “I have to apply to court to remove an expired lien”. Not always. Where a claim of lien has expired without being perfected (i.e, an action in the Supreme Court of British Columbia has not been commenced and, in most cases, a certificate of pending litigation has not been filed against title to the lands within 365 days of registration), landowners (among others) may apply to the registrar of the land title office to remove the lien. This process is generally a less expensive and more expeditious way of discharging an expired claim of lien.
  4. “I will increase my lien later”. Once filed, you cannot increase the amount of a claim of lien. You may file choose to file a new claim of lien and discharge the old one, or file an additional claim for work not claimed under the original claim of lien, but doing so may put you beyond the deadline for filing a valid claim.
  5. “I filed my lien net of the amounts that I have paid my subcontractors”. A lien claimant should include all amounts incurred in the performance of his contract including amounts that he has paid or must pay to his subcontractors. There is no reason to discount your claim to exclude these amounts and doing so would probably reduce the amount recoverable.
  6.  “I will use money received on this project to pay my trades on another project.”  At the risk of oversimplification (again), unless you have paid everyone engaged by you for that project, you cannot use funds earmarked for that project for other purposes. Doing so may constitute a breach of trust under the BLA and expose you to damages, fines and (worst case scenario) imprisonment.
  7. “If I file a notice of interest, my property cannot be liened.” A “notice of interest” may protect an owner from claims attaching to his interest in the land if he has prior notice of the work, but does not request it. These notices are commonly used in tenant improvement situations. A notice of interest may protect an owner from the sale of the property to satisfy a builders lien. It also may give the owner strong grounds to apply to discharge a claim of lien from title. However, the registration of a notice of interest against title does not preclude lien claims from being filed and they would still be accepted for registration by the land title office.
  8.  “I’m going to remove/damage the work I performed until I’m paid”. Once your work has been incorporated into a project it becomes part of it. You cannot remove your work if it has not been paid for. You may be exposed to liability for trespass in addition to the cost of repairing or replacing your work. The situation is different for material suppliers whose materials have not yet been incorporated into the project. In those circumstances, material suppliers may remove their property but cannot do so to the prejudice of someone who has proven his builders lien in court.
  9. “I’m an employee owed money by my employer, and I want to lien the project I worked on”. Employees cannot file claims of lien against property for money owed by their employers. The employee is an agent of the employer and for the purposes of the BLA their work is one and the same. If an employee has not been paid by his employer, he should contact Employment Standards, and/or sue for unpaid wages, and not file a claim of lien.
  10.  “I filed my claim of lien, when do I get paid?” Unfortunately, receiving payment may not be that simple. If there is no dispute about the amount owed, getting paid may just be a matter of time. If there is a dispute about the amount owed, or if the debtor has no ability to pay, you may have to commence a court action and see the matter through trial to judgment to get paid. The continued presence of the lien on title to the property may provide strong negotiating leverage, but the mere act of filing the lien does not ensure payment.

The above is intended as general information only. This area of law is very nuanced, and you should contact us if you are uncertain about how to proceed.

There are a whole new set of challenges when making an estate plan for a blended family. Spouses may want to first provide for each other and then have the assets they brought into the relationship go their own children. The interests of the spouses may not be consistent. There may be concerns that the surviving spouse may not look after the children of the deceased spouse, if the surviving spouse gets all the assets by joint ownership.

The tools that are available to help with planning for blended families include: mutual wills, joint ownership, named beneficiaries, life insurance trust declarations, alter ego and joint partner trusts, spousal trusts in a will, and marriage and cohabitation agreements. There are benefits and disadvantages to each, depending on the circumstances.

Often a spouse will leave everything to the other spouse by joint ownership, as a named beneficiary, or in a will. They expect that the surviving spouse will look provide for the children of the first to die, along with their own children. That doesn’t always work out as planned, and if the surviving spouse does not make any provision for the children of the first spouse to die, the children of the first to die spouse may be out of luck to challenge the actions of the surviving spouse, as the right to apply to vary the will to get a share of the estate is only the right of a spouse or child of the deceased (not a step child). So if the children of the first to die spouse did not apply to challenge the will of the deceased on the death of their parent, they are out of luck on the death of the step-parent, as they have no right to challenge the will of a step-parent.

Mutual Wills

Ways to deal with this inequity include putting a clause in the will that requires the surviving spouse to not change the will after the death of the first spouse (mutual wills). This doesn’t always work, as the agreement to not change the will can be made worthless by gifting the assets in the estate away before death, or otherwise removing the assets from the estate of the surviving spouse.

Joint Ownership

Putting property into joint names with your spouse, makes the property pass automatically to your spouse on your death, but doesn’t protect your children if your spouse decides not to provide for them.

Putting property in joint names with your child(ren) to ensure they get it when you are gone, raises a whole host of other potential problems. Adding your children to title can result in a partial disposition for capital gains purposes, if the property put in joint names is not your principal residence, and it can result in property transfer tax being payable. Putting your principal residence in joint names with your children can result in you losing the principal residence exemption from capital gains tax for any increase in value for the portion transferred after the date of the transfer. Assets owned jointly with your children can also be at risk of a claim by a creditor or spouse of your child. There are ways to protect against creditors or spouse claims using trust declarations, but you need to think carefully about whether a joint tenancy is the way to go.

A joint owner who is not intended to be the sole beneficiary of the property can also cause issues if they deny that any other party has an interest in the property on the death of the parent. Make your intentions clear using a deed of gift or a trust declaration.

Many people also unintentionally foil a carefully thought out estate plan which incudes a spousal trust or alter ego trust, by putting the property meant to be held in the trust in joint names after the other planning is done, without consulting the lawyer who did the plan.

Named Beneficiaries

If your assets include RRSPs, RRIFs, TFSAs, life insurance or segregated funds, you can provide for your spouse and for your children of your earlier relationship by naming one or more beneficiaries of that asset, and by naming alternate beneficiaries. You may choose to provide for your spouse by using the RRSP or RRIF as it will roll over tax free to your spouse, while providing for your children using life insurance or TFSAs, which don’t get the rollover treatment. There are cautions again, though, as the estate will have to pay the tax on a RRSP/RRIF if the spouse doesn’t claim the rollover.

You must also be careful to avoid naming a minor as a beneficiary of life insurance or other asset with a named beneficiary, as the asset could be held by the court and then paid out to your child when they turn 19, which is likely not your intent. Better to appoint a trustee to hold that asset for your child until the age at which they can handle the funds, with discretion to advance as they need it earlier. It is important to provide evidence of your intention in your will or in a trust declaration or deed of gift.

Spousal Trusts

A spousal trust contained in a life insurance trust declaration or will, can provide for your assets to be held in a trust for your spouse for their lifetime, with the balance going to your children on the death of the spouse. The spousal trust can provide for income only to your spouse or income plus the ability to encroach on capital. Your choice of trustee of the spousal trust will be important as the trustee must make decisions about how much to give to your spouse and what to preserve for the benefit of your children. A good impartial trustee and a letter to the trustee stating your wishes can be very helpful.

If you use a spousal trust in your will, probate fees will be payable on the assets in your estate, but if your assets pass outside your estate, such as in a trust created and in effect during your lifetime, the probate fees can be avoided on those assets. As well, assets passing in a trust created by a will are subject to challenge under the wills variation legislation in BC, but assets passing outside your estate through a trust created in your lifetime are not subject to challenge, except in limited circumstances.

Alter Ego and Joint Partner Trusts

If you are over 65 and a Canadian resident, you can put your assets in a joint partner trust or alter ego trust, without triggering capital gains tax on the disposition of the assets to the trust. During your lifetime (and that of your spouse in the case of a joint partner trust (JPT)), only you (and your souse in a JPT) can have the use of the income and capital of the trust. If you are wanting to preserve capital for your children after the death of your spouse, a good tool to use for both probate fee planning, and avoidance of claims against your estate is an alter ego trust which contains a spousal trust for your spouse during their lifetime and a gift over to your children of the capital on the death of your spouse. This can be the best tool for a number of reasons, if you qualify on age and residency, but you need to get tax advice to be sure it will work with the types of assets you own.

Cohabitation and Marriage Agreements

Marriage and cohabitation agreements are an effective way to prescribe the division of assets on a separation or death. To be enforceable, there must be full financial disclosure of all assets and liabilities of the parties, and each party must get independent legal advice. The agreements can specify what is to be provided in an estate for the spouse and each party’s own family. The agreement must be fair at the time a court is considering it, in order to avoid a variation of the terms of the agreement by the court.

In considering the above tools and creating your estate plan, be sure to get advice from a lawyer experienced in estate planning to be sure your plan will work to protect your spouse and your children.

It is not an usual story: an insurance applicant does not make full and frank disclosure in their insurance application. This might result from confusion about the form, embarrassment, not appreciating the importance of disclosure or even an unwillingness to disclose certain information. The risk of such non-disclosure is that it might result in claim properly being denied even if the non-disclosure does not relate to the harm which befalls the insured. Such non-disclosure and denial was the subject of the recent decision of Batanova v London Life Insurance Company, 2019 BCSC 1147 (CanLII).

In Batanova the insured died of a heart attack caused by coronary artery disease. In his application, the insured did not properly disclose issues with his back, his back pain, his arthritis, his spina bifida occulta, that he used medical marijuana for treatment or the full extent of his cigarette use. The insurer denied a claim made under the policy by beneficiary, the deceased’s sister, based on such incorrect information furnished by the insured. The beneficiary then sued for the policy.

The Court noted the requirements within the Insurance Act, R.S.B.C. 2012, c. 1 for insureds to disclose every fact material to insurance to the insurer. In law, whether the non-disclosure is innocent or not, the result of non-disclosure may be an insurer voiding a contract if it may argue that the non-disclosure is material.

Whether non-disclosure is material at law is determined through the theoretical lens of a reasonable insurer. If the non-disclosed subject matter might have caused a reasonable insurer to increase the premium or decline coverage, it is considered material. A non-disclosure does not need to relate to the actual claim made under the policy to potentially void the policy, so long as the non-disclosure is material is material.

In Batanova the Court found that the insured answered many questions in his application incorrectly, incompletely or not at all. The Court determined this by considering the theoretical understanding of a reasonable layperson reading the application questions. The insurer was not under an obligation to investigate the information provided to it; responsibility lies with the insured to provide correct information. The Court noted that the fact that questions were asked on an application suggests they are material to the insurer.

The Court ultimately found that there was non-disclosure of material facts and upheld the decision of the insurer to deny the claim under the policy.

The Batanova decision is a reminder that parties should carefully complete insurance application forms. While circumstances can arise when even material non-disclosure does not void insurance -for example, when correct information is provided by an insured to a broker who records the information incorrectly- insureds should carefully review their application forms to ensure no mistakes are made. Even if a broker is assisting in completing the paperwork, insureds should review the forms for accuracy once completed.

Further, a prudent person should always assume that the insurer will learn about any incorrect information in an insurance application. Insurers have a clear interest in finding any excuse to deny a claim and non-disclosure of a material fact unrelated to a claim often provides such an excuse. Likewise, every insured has a clear interest in avoiding any reasonable denial of their claims by properly and completely filling out all insurance application forms and to make inquiries of the insurer or insurance broker if there are any questions or concerns about how to complete the form or what information is being sought.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes, including those related to insurance. 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 the third of this series of articles we look at the case of Steven, a 28-year-old maintenance technician who experienced negligent surgical removal of a giant pituitary cyst and negligent post-op follow up care which caused blindness.

Steven was an otherwise healthy individual when he started to notice imperfections in his vision. It was initially hard to define, but after some time he realized that he appeared to have blind spots. Although it was not causing pain, or interfering with his daily activities or work, he was concerned enough to see his family doctor who suggested he have a vision test. The result of the vision testing led to a series of referrals, ending in a referral to a neurosurgeon at the local hospital. It was the neurosurgeon who explained to Steven that an extremely large pituitary cyst was pressing on his optic nerve, causing the vision impairment. The surgeon recommended removal of the cyst to save the vision and further damage to the brain structure. The surgical approach was through the nose.

Following surgery Steven experienced a dripping nose. Later tests confirmed this dripping was cerebral-spinal fluid, the watery substance in which the brain is bathed. If CNS fluid can leak out, the danger is infection can creep in (to the brain). At the time of discharge his nose continued to drip with CNS fluid. In the weeks following the initial surgery Steven was forced to attend the emergency department on more than one occasion with increasingly debilitating headaches and, closer to collapse, a stiff neck. The surgeon recognized the fluid was CNS fluid and attempted more than once to surgically repair the leak. Nevertheless, the leak continued until Steven collapsed with symptoms of meningitis.

Steven and his family sought legal advice from Angela when he awoke blind from his coma.

Inappropriate Surgery for Giant Cyst?

The complete care received by Steven was considered and questioned. With appropriate experts the case theory was developed and further tested. It became apparent that the giant cyst was highly unusual because of its size and that the usual method of removing such a cyst would be insufficient. Rather than ‘simply’ removing the cyst, the cavernous hole left by the removal of the cyst ought to have been filled. The brain structures, which had been supported by the cyst, required alternative support. Without this support the brain had herniated (dropped down) in on itself into the hole causing brain damage, loss of vision and coma.

The method of surgery was highly contentious. Just because one surgeon would have performed the surgery differently does not mean that the first surgeon was negligent. Also, it must be recognized that each and every surgery carries risks of complications and/or outright failure. A poor outcome does not necessarily equate with negligence.

Post-Surgical Care is Just as Important as the Surgery

One factor of this case that was highly influential in leading to a settlement was the duration of the CNS fluid leak. Angela argued that it was almost inevitable that losing so much CNS fluid was going to cause a serious problem. The repeated failures in closing the defect and stopping the leak ought at the very least have prompted a referral to a larger teaching hospital with more experienced neurosurgeons. By a careful review of the multiple hospital and emergency visits and the mapping out of those visits with the associated symptoms and reports of leaking CNS, it was possible to illustrate the extent of the poor care.

Detailed evidence from a neuro-ophthalmologist and neurosurgeon confirmed that had the surgery been carried out in a non-negligent manner or had Steven received more experienced neurosurgeon care shortly thereafter, Steven’s vision and other brain damage would likely have been avoided. Indeed, it was the evidence of the defendant neurosurgeon that he expected Steven to make a full recovery from the surgery, with the minor vision impairments experienced at the time of the initial surgery to likely recover spontaneously following surgery.

The primary difficulty with this case was the lack of one precise moment, or action/inaction taken by the defendant neurosurgeon that was negligent. While Angela argued the original surgery was negligent, there was a real risk the court would find it met the standard of care. A CNS leak is a risk of such surgery, but at what point in time does the inability to seal the leak become negligent, if at all?

Expert neurosurgeons retained to advise on the case opined that the leak could not be expected to cease using the method employed by the defendant neurosurgeon. While the defendant’s lawyers argued that the leak had (eventually) been sealed by the defendant neurosurgeon, the experts retained for Steven noted that it was in fact the catastrophic brain herniation into the cavernous hole that had led to the leak sealing itself, not the last surgical intervention by the defendant neurosurgeon.

By the use of experts, graphs and tables Angela built a case that illustrated the extent and duration of the poor care and the continued ineffectual action on the part of the neurosurgeon. It became apparent that there was a real risk to the neurosurgeon that a court would find his overall care provided to Steven fell below the standard of a competent neurosurgeon.

The case was settled just before trial on terms favourable to Steven.


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.

Many employment agreements contain non-competition clauses that seek to prevent an employee from later working for a competitor. Employers who rely on these clauses should exercise caution before seeking to enforce them at court.

Non-competition clauses in the traditional employment relationship are presumptively unenforceable and, when compared with other contractual terms, subject to heightened scrutiny. Courts do not like to enforce agreements prohibiting an employee from working for a competitor after the employment relationship ends (and, thus, potentially cutting off an employee’s only source of income) unless there is a very good reason to do so.

In determining whether a non-competition clause is enforceable, the court will consider the following:

  • the interest the company seeks to protect;
  • whether less restrictive modes of protection (such as a non-solicitation clause) is available; and
  • the scope of the non-competition clause.

If a non-solicitation clause is insufficient to protect the interest of the company and a non-competition clause is necessary, the final step is to examine the scope of the non-competition clause to determine whether it is no broader in terms of geographic, temporal and activity restrictions than is necessary to protect the interest of the company.

As recently articulated by our Court of Appeal in IRIS The Visual Group Western Canada Inc. v. Park, 2017 BCCA 301, the heightened scrutiny test cited will also apply to independent contractors in certain situations.

IRIS is an eye care services provider. Dr. Park is an optometrist who provided services to IRIS as an independent contractor. The parties entered into a services agreement that included a non competition clause prohibiting Dr. Park from competing “either directly or in partnership or in conjunction with” any entity “carrying on, engaged in, interested in or concerned with a business that competes … with IRIS within 5 km of” the place that Dr. Park provided services to IRIS. Dr. Park left IRIS a few years after agreeing to the non-competition clause. She set up her own optometry practice 3.5 kilometres from where she provided services to IRIS. Unsurprisingly, IRIS commenced an action at court seeking to uphold the non-competition agreement.

The Court of Appeal declined to enforce the non-competition agreement. It held that the power imbalance between Dr. Park and IRIS was similar to that of an employer and employee, notwithstanding that Dr. Park was an independent contractor. As such, the non-competition clause was subject to heightened scrutiny. With respect to the clause itself, the Court held that the clause was ambiguous and beyond what was necessary to protect IRIS’ business interests. Regarding ambiguity, the Court could not determine what it means to compete “in conjunction with” another person or how a person could determine whether an individual is “concerned with” a business that competes with IRIS. With regard to protecting IRIS’ interests, the Court noted that IRIS does more than just offer optometrist services. It also sells non-prescription glasses and sunglasses. Restricting Dr. Park – an optometrist – from engaging in work that has nothing to do with optometry (i.e., the sale of glasses) was not necessary to protect IRIS’ interests.

The decision in IRIS The Visual Group Western Canada Inc. v. Park is a good reminder that non-competition clauses should be individually tailored and no more broad than necessary to protect a company’s interests. Employers are wise to use plain language so that employees (and courts) understand the extent of the restriction. That said, even the most carefully crafted agreement will face enforceability hurdles given that non-competition agreements are presumptively unenforceable.

When deciding whether to vary a Will, Courts must consider whether the Will makes adequate provision for children and spouses of the deceased, and if not, order what is adequate, just and equitable. The phrase “adequate, just and equitable” should be viewed in light of “current societal norms” (Tataryn v Tataryn Estate, [1994] 2 SCR 807). In this case, the Court further provided that two types of norms are available, legal and moral obligations. Legal obligations are those which the law would impose on a person during his or her lifetime and moral obligations are the reasonable expectations of society based on contemporary community standards.

Legal obligations during one’s lifetime would be things like supporting a spouse /minors /or disabled children. A legal obligation may be dependent on factors including the length of a marriage and number of children. Moral obligations are harder to judge and more subjective. It will often depend on the size of the estate, and how many dependents are involved, and whether there was hostility and disaffection during the will-maker’s lifetime with any potential claimants. Certainly arguably, the moral claim of adult independent, self-sufficient children may seem weak, however, there is a lot of case law suggesting that, if the size of the estate permits some provision for such children should be made.

In Tataryn v Tataryn Estate, the Court concluded by stating that as long as the will-marker has made a Will in accordance with an acceptable range, the Court should not disturb a Will.


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 recent case of Re Cook Estate 2019 confirms the two-part test for considering applications to cure a defective will under Section 58 of the Wills, Estates and Succession Act (WESA).  In this short article we look at the purpose of this section and what evidence the court may consider when asked to exercise its discretion to fix a defective will.

Section 58 of WESA provides a broad curative provision. It provides the court with the discretion to validate a document which has not been made in compliance with the formalities of will-making found in Section 37 of the WESA, and allow it to be admitted into probate, if satisfied that the document “represents the testamentary intentions of the will-maker”.  The purpose of this remedial provision is to avoid the defeat of a will-maker’s genuine intentions due to a technical defect.

Defects that may invalidate a will

Such technical defects may be the lack of a signature on the part of the will-maker or the lack of witnesses. WESA does not set out a specific list of defects the courts are prepared to cure. However, the further the document purported to be the will deviates from the formalities required for a will, the greater the risk the court will decline to use its discretion and cure the defect.

In considering an application to cure a will under Section 58, the court  must consider the applicable test set out in that section which comprises two main parts: (1) whether the records, documents or writing is “authentic” and (2) whether the records, document or writing represents the deliberate or fixed and final intention of the deceased person (Hadley Estate, 2017).  Such questions are decided by the court on a balance of probabilities and is ‘intensely fact-specific’ (Re Cook Estate, 2019).  In reaching its conclusion the court may consider a wide array of evidence to determine testamentary intention.  The Court of Appeal has approved the following passage from Estate of Young which is helpful.

“… testamentary intention means much more than the expression of how a person would like his or her property to be disposed of after death. The key question is whether the document records a deliberate or fixed and final expression of intention as to the disposal of the deceased property on death. A deliberate or fixed and final intention is not the equivalent of an irrevocable intention, given that a will, by its nature, is revocable until the death of its maker. Rather, the intention must be fixed and final at the material time which will vary depending on the circumstances.”

In keeping with the highly fact dependent nature of such a determination the court will consider the circumstances in which the document came into being, the timing of its creation, whether the author had testamentary capacity (the mental ability to form a testamentary intention) and all other relevant evidence presented to the court.

Kill or cure?

Of course, not everyone involved may want the document to be cured and declared to be the last will. A note written shortly before death may purport to dispose of the testator’s estate to individuals not previously named as beneficiaries in a will. While the new beneficiaries may fight hard to have this document cured and recognized as the final will, those who have lost out or who are taken by surprise at the new terms may strenuously object. If there is a disagreement between beneficiaries as to whether the document was meant to be the deceased’s final will, the matter may be determined through the process of litigation and ultimately trial.


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.

A Judicial Case Conference (“JCC”) is usually the first step in a family law case after you have filed your claim. It is intended to create a relatively low stakes environment for the parties to feel that they can discuss the issues in a frank and open manner. Any statements made within the context of the JCC are “without prejudice” communications which means that those statements cannot be relied upon in future in Court proceedings by either party, except in very rare circumstances.

A JCC is primarily a consensus-based process, where the only orders that can be made by a judge (other than “procedural orders”) are those that are put in place by agreement between you and the other party.

For a full explanation of JCCs, including scheduling, how to prepare and FAQs, see All About Judicial Case Conferences.

It is no secret that insurers are motivated to find ways to deny part or all of a claim. While such denials can be firmly grounded and properly made, other times, the denial may be based on a tenuous interpretation of the facts, law and policy wording or just plain wrongfully made.

In the case of PCL Constructors Westcoast Inc. v Royal & Sun Alliance Insurance Company of Canada, 2019 BCSC 822 (CanLII) the Plaintiff made a claim concerning a course of construction insurance policy. The central issue before the court was whether or not the insurance contract was subject to a $250,000 deductible. The Defendant insurer had paid out the Plaintiff’s claim, less  $250,000 for the deductible. The Plaintiff’s position was that there was no deductible as the Defendant’s policy did not comply with s. 31 of the Insurance Act, S.B.C. 2012, c. 1 which reads:

31  A contract containing

(a)a deductible clause…

must have printed or stamped on its first page in conspicuous bold type the words “This policy contains a clause which may limit the amount payable” and, unless these words are so printed or stamped, the clause is not binding on the insured.

The Court found and the Defendant conceded that the subject policy did not comply with s. 31; however, the Defendant argued that it would be inequitable for the deductible to not apply as the Plaintiff knew that the policy was intended to contain a deductible. The Defendant’s claims included prayers for rectification (the court amending a contract to include terms intended by the parties), promissory estoppel (a party may be precluded from acting in breach of a legally enforceable promise) and a duty of honest contractual performance (a party must not capriciously perform a contract).

The Court held that there is judicial history for s. 31 being applied strictly as against insurers. On this basis, it went on to find that it didn’t matter of whether the Plaintiff was aware of a deductible since the policy itself did not comply with the strict requirements of s. 31.

The court rejected the notion that the equitable principles of rectification or promissory estoppel could be utilized to overcome a failure by the Defendant to comply with a mandatory statutory requirement enacted for the benefit of insureds. As the duty of honest contractual performance was similarly based in notions of equity, any arguments based on that duty failed as well.

In the result, the Court declared that the deductible did not apply and ordered the insurer to pay the deductible amount it had previously held back on its payout to the Plaintiff.

PCL Constructors Westcoast Inc. v Royal & Sun Alliance Insurance Company of Canada is acts as a reminder that insurance contracts must be fastidiously drafted to comply with a number of strict statutory requirements. The Insurance Act is a remedial piece of legislation that encourages courts to find favour with insured where disputes about coverage arise. Parties who are denied coverage or full coverage do not need to accept such denial at face value and often such denials are based in incorrect facts, incorrect law or incorrect interpretations of the subject policy.

If you have been denied coverage under an insurance policy, it may be well worth the time and effort to seek a legal opinion on whether such denial was properly made. Similarly, counsel may assist in putting together a demand that properly owed coverage be provided or otherwise appealing a claim for such coverage.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual and insurance disputes. 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 Wills, Estates and Succession Act (“WESA”) states at section 40 and 43 as follows:

40 (1) Signing witnesses to a will-maker’s signature must be 19 years of age or older;

(2) A person signing may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43.

(3) A gift in a will is not valid only because a witness was, at the time the will was signed by the will maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.

43(1) Unless a court otherwise declares under subsection (4), a gift in a will is void if it is to:

(a)  a witness to the will-maker’s signature or to the spouse of that witness,

(b)  a person signing the will by the will-maker’s direction, or the spouse of the person signing, or

(c)  a person claiming under a person, other than the will-maker, referred to in paragraph (a) or (b).

 (2)          For the purposes of subsection (1), the relevant time for determining whether one person is the spouse of another is the time when the will was made.

(3)          If a gift is void under subsection (1), the remainder of the will is not affected.

(4)          On application, the court may declare that a gift to a person referred to in subsection (1) is not void and is to take effect, if the court is satisfied that the will-maker intended to make the gift to the person even though the person or his or her spouse was a witness to the will.

(5)          Extrinsic evidence is admissible for the purposes of establishing the will-maker’s intention under subsection (4).

In sum, under s. 43(4) of WESA, the Court may declare that a gift to a witness who is a beneficiary or his or her spouse is not void, IF the Court is satisfied that the Will-maker intended to make the gift to the person even though the person was a witness to the Will. It is up to the witness to establish the testamentary intent to make a gift to a witness. That being said, it is NEVER a good idea to have a beneficiary under the Will act as one of the witnesses.

Under WESA, a gift to a beneficiary or their spouse is presumptively void if that person was a witness to the Will. However, section 43(4) of WESA gives the Court discretion to declare the gift valid if the Court is satisfied that the Will-maker intended to make the gift.

A beneficiary or their spouse should never witness a Will. If one of them does witness a Will, the gift to the beneficiary (not the Will) will be presumptively invalid. If the Court is satisfied that the Will-maker intended to give the gift, the Court may declare the gift valid.


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.

 

Employers frequently misunderstand their obligations when dismissing probationary employees. Many employers assume that they can terminate a person’s employment for any reason whatsoever. This is incorrect. The probationary period is treated like a trial period of employment. If the employer determines that the employee is not the right fit, it may elect to terminate the employment relationship without any notice or severance. However, the inclusion of a probationary clause does not give an employer unfettered discretion to terminate a new employee’s employment. The probationary employee must prove to be “unsuitable” for the position.

Although suitability will be determined by a number of factors, it is generally understood that the employee must be given a reasonable opportunity to demonstrate his or her ability to meet the standards of the position. This assessment cannot be arbitrary or made in bad faith. An employee must be made aware of the employer’s expectations.

The need to convey expectations to probationary employees was discussed in Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42. In that case, the employer dismissed Mr. Ly during his probationary term for failing to meet its expectations. However, the court found that the employer had failed to give Mr. Ly a reasonable opportunity to demonstrate his suitability. Importantly, Mr. Ly had sent his employer an email five weeks into his employment requesting a meeting with his superior in order to more fully understand the expectations of his position. Mr. Ly did not receive a response. His employment was terminated shortly thereafter.

In reaching its conclusion that the employer’s expectations of suitability were not properly conveyed to Mr. Ly, the court relied on the fact that Mr. Ly reached out to his employer to better understand the standard expected of him. The absence of any response denied Mr. Ly a fair opportunity to demonstrate suitability. The Court discussed this aspect at paragraph 59:

In considering the events leading to Mr. Ly’s termination in light of the legal standard of suitability, I find that he was not given a fair opportunity to demonstrate his suitability for his position.  Mr. Ly made genuine and concerted attempts to better understand the basis for his employer’s assessment of his suitability but his efforts to do so were not responded to with clarity by his employer.  I accept Mr. Ly’s testimony that he tried to ascertain relatively early on in his probationary period the expectations and standards IHA would apply to him in assessing his suitability but he was not, in his words, “given a chance” in this regard.  Absent such a fair opportunity to demonstrate his suitability, Mr. Ly is entitled to damages.

As a result, the Court held that Mr. Ly had been wrongfully dismissed and awarded him three months’ pay in lieu of reasonable notice.

The decision in Ly v. B.C. confirms that the standard for termination is “suitability” and “suitability” must be assessed in good faith. In many ways, including a probationary clause in an employment agreement can make it more difficult to terminate a person’s employment. Employers would be wise to consider whether the expectation and standards of the position have been explained to a probationary employee prior to dismissal as a failure to do so may result in a wrongful dismissal award.

Section 151 of the Wills, Estate and Succession Act (WESA) allows a beneficiary or intestate successor (someone who may inherit if there is no Will) to apply to the Court for leave to bring an action or defend legal proceedings on behalf of an estate when, for whatever reason, the personal representative has declined to act. Those proceedings are brought in the name of the personal representative, not in the name of the beneficiary.

When Might Section 51 Prove Useful?

The personal representative (the executor of the will or the administrator where no valid will exists) legally steps into the shoes of the deceased to deal with the deceased’s estate. Prior to Section 151, the personal representative is the only individual who has legal standing to take action to claw back assets they consider ought to be included in the estate. There is a fundamental problem where the personal representative refuses to initiate proceedings or is perceived by the beneficiary to be the person at fault, or to have a conflict of interest.

Before Section 151 came into being disgruntled beneficiaries would be forced to try to remove the personal representative and appoint an alternative that they anticipated would be sympathetic to their cause, even though the cause of dissatisfaction may be limited to a discrete issue.  Section 151 permits the personal representative to decline to initiate proceedings that are considered ill-conceived or not in the interests of the estate while allowing the disgruntled beneficiary to take on the risks of pursing the action. If the beneficiary can convince the court that they have made reasonable but unsuccessful efforts to cause the personal representative to commence or defend the action, the court may grant leave for the beneficiary, or another person, to commence or defend the action in the name of the personal representative.

In considering the beneficiary’s application for the court’s permission to initiate or defend proceedings the court will consider the merits of the proposed action, specifically whether there is a “good arguable case”.  This can be difficult to establish where the necessary information is in the hands of the personal representative who refuses to share. The court will also consider the motives behind the application.  In Bunn v Bunn 2016 BCSC 2146 the court dismissed the deceased’s daughter’s claim against the estate administered by her brother on the basis that it was born of animosity rather than a good arguable case.

Section 151(3) states that leave will be granted when it is “necessary or expedient” for the protection of the estate or the interests of the beneficiary. A proceeding may be “necessary” when the personal representative is unwilling or unable to proceed. It may be “expedient” if it is the interests of the estate.

In Gordon Estate 2018 BCSC 487 the deceased’s will left the entire residual estate to UBC to fund research for eye disease. The executor had been the deceased’s friend and gardener for many years. Prior to her death the deceased transferred the majority of her assets (approximately $2m) to the gardener, leaving very little to go to UBC. The court granted relief under Section 151 to allow UBC to bring an action in place of the executor, to set aside the asset transfers prior to death so as to bring those assets back into the estate to be distributed in accordance with the will.  The success of such an application is highly fact dependent.  A key fact in this case was the evidence of the deceased’s long-term lawyer who knew her client well and, shortly before the testator’s death, had refused to prepare a new will on the basis that the deceased lacked the necessary capacity.  The second lawyer, retained to draft the new will, did not have the benefit of such knowledge of the deceased and had not made adequate notes of the consultation with the deceased to establish steps taken to reach the apparent conclusion that the deceased was competent.

Where the court grants relief under Section 151 it may impose restrictions on the scope of the action, set a timetable for the proceedings and give other directions for the efficient and cost effective management of the proceedings. The court may grant permission for the beneficiary to use estate monies to fund the proceedings, or may direct the beneficiary to personally fund the proceedings.

Limitation

There are strict time limits to initiate a claim or counter-claim and it is essential not to delay in seeking legal advice. A Section 151 application is bound to fail if appropriate efforts have not been made to have the executor bring the action.  This effort needs to be made even where it is apparent that to bring such an action would be contrary to the personal interests of the executor.  Part of this effort will necessarily include providing sufficient detail of the proposed action to enable the executor to make an informed decision.


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.

 

 

 

Privty of contract is the notion that only parties to a contract may receive the benefits of or may be called upon to perform the obligations of a contract. This legal principle governs all contractual disputes and determines if a party is properly named in any lawsuit concerning any contractual rights or obligations.

There are limited instances where the law allows for parties other than those named in a contract to be held liable for or to be able to sue in relation to a contract. One such instance is in the case of pre-incoprorated entities. Such was the case in the recent decision of The Owners, Strata Plan LMS 3905 v. Crystal Square Parking Corporation, 2019 BCCA 145 (CanLII) (“Crystal Square”).

In Crystal Square the question before the court was whether a strata corporation, once incorporated, was bound by a contract entered into by its predecessors, in particular, one that concerns shared expenses for a parking garage. The issue stemmed from the agreement in question having been entered between the developer, a corporation, prior to the strata corporation coming into existence.

The court cited Phelps Holdings Ltd. v. Owners Strata Plan VIS 34302010 BCCA 196 (CanLII) for the test as to whether a party may be bound to the terms of a pre-incorporation contract as follows:

…[W]here a party shows an intention to be bound by a new, and identical, post-incorporation contract, that party cannot take the benefit of the agreement without accepting the burden. When the benefit … and burden … are contemplated pre‑incorporation, and are then acted upon exactly as contemplated post-incorporation, there will be found to be a new post-incorporation contract on the same terms.

In applying this test to the facts, the Court of Appeal noted that:

  • the future existence of the strata corporation and its assumption of the contractual obligations in question were contemplated in the words of the contract;
  • formal adoption of the contract in question by the strata was not necessary and there is no stringent requirement of formal adoption in the matter of adoption of a pre-incorporation contract (noting s. 20 of the  Business Corporations Act, S.B.C. 2002, c. 57);
  • outward expression of intention to be bound by a contract can be in any form;
  • the contract in question offered benefits to the strata once it was incorporated which the strata took advantage of and utilized once incorporated; and
  • the strata acted as though it were bound by and sought performance of the contract in question as though it were bound by the contract.

Crystal Square contains a useful review of the law applicable to pre-incorporation contracts and that it is quite possible for a corporation to be bound by a contract that arise before the corporation came into existence so long there are objectively clear terms to the contract, there has been consideration for the contract and there is outward expression of the parties to be bound by the contract which expression can be found in any number of ways. While formal adoption of a pre-incorporation contract would be the most prudent course of action, that is not required in order to establish the enforceability of a contract.


Jeremy Burgess is a litigation associate at Pushor Mitchell who frequently assists clients in contractual disputes. 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.

Connor Estate 2017 confirms that marriage-like relationships can exist where one member of such relationship is already married.

Patricia Colleen Connor was not legally married at the time of her death, nor did she have any children.  Although her immediate family predeceased her, Ms. Connor’s father had five children from a subsequent marriage whom she did not know.  From 1993 until Ms. Connors death in 2015, she maintained an intimate and sexual relationship with a married man, Mr. Chambers, that lasted a little over 21 years.

For much of the long-time relationship, Mr. Chambers lived with his wife and family and saw Ms. Connor when he could.  Although the judge found that Ms. Connor had passed away intestate (without a valid will), he acknowledged that she has prepared a will that left Ms. Connor her $410,000 RRSP even though the will could not be located.

The application to determine if Mr. Chambers was in fact the common law spouse of Ms. Connor was opposed by her five half siblings whom she did not know. If Mr. Chambers was found not to be the common-law spouse of the deceased, the half siblings would inherit her estate.

The half siblings characterized the relationship as a long-term affair and adduced evidence of the following:

  • the parties maintained two entirely separate residences and did not live under the same roof;
  • each undertook their own separate domestic tasks such as meal preparation, shopping, tending to clothing and household maintenance;
  • no mingling of finances occurred;
  • sexual relations between them in their respective households were significantly reduced in the last two years;
  • Connor’s hospital records identified her marital status as single and indicated Mr. Chambers as an alternative contact identifying him as a “friend”;
  • Connor identified herself as “single” on her tax returns and Mr. Chambers identified himself as “separated” after 2012;
  • Chambers identified his wife as his “current spouse” in the spousal declaration for his municipal pension plan application in September 2011, a designation that was never changed;
  • In August 2013 Mr. Chambers declared for the purposes of his group benefits with Manulife Financial that he had no common-law spouse and he did not declare Ms. Connor as a beneficiary;
  • Chambers’ children had no involvement in the life of Ms. Connor and indeed the son was never introduced to her; and
  • neither Mr. Chambers nor Mc. Connor displayed photographs of each other in their respective residences.

The court looked to s.22 of Wills, Estates and Succession Act, S.B.C. 2009, c.13 (WESA) for further clarification:

[5]          While it might be unusual, it is possible for a person who dies without a will to leave behind two or even more persons who might quality as a “spouse” under WESA for the purposes of intestate estate distribution.  S.22 of WESA provides:

Two or more spouses

22(1)      If 2 or more persons are entitled to a spousal share of an estate, they share the spousal share in the portions to which they agree, or if they cannot agree, as determined by the court.

(2)          If 2 or more persons are entitled to apply or have priority as a spouse under this Act in respect of an intestate estate, they may agree on who is to apply or who is to have priority, but if they do not, the court may make the decision.

The court also looked to the judgment in Yakiwchuk v. Oaks, 2003, a case out of Saskatchewan, which further established that the presence or absence of any particular factor cannot be determinative of whether a relationship is marriage-like:

“Spousal relationships are many and varied.  Individuals in spousal relationship, whether they are married or not, structure their relationships differently.  In some relationships there is a complete blending of finances and property – in others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input.”

The respondents, the half-siblings of Ms. Connor, argued that it was not legally possible for Mr. Chambers and Ms. Connor to have a marriage-like relationship until after Mr. Chambers had separated from his wife. Their primary argument was that “it is a legal impossibility to have two co-existing marriage-like relationships that are recognized by the court.”

In this regard, the court disagreed and referred to Austin v. Georz 2007, a BC Court of Appeal case, to establish that:

[41]        Nothing in the history of the statutory recognition of the common-law relationships, as distinct from common-law marriages, supports the proposition that the legislature intended to restrict these relationships to persons who could legally marry.  Although the terminology has changed over time – living as husband and wife, living together as married, living as spouses, living in a marriage-like relationship – the focus has always been on the nature and character of the relationship.

Justice Kent concluded that the relationship between Mr. Chambers and Ms. Connor was of lengthy duration and was of great importance to them both.  In this respect, Justice Kent expressed that:

[53] Like human being themselves, marriage-like relationships can come in many and various shapes.  In this particular case, I have no doubt that such a relationship existed between Mr. Chambers and Ms. Connor for many years and that it continued to exist right up to the date of her untimely death in January 2015.  I therefore declare that at the time of her death, Mr. Chambers was the “spouse” of Ms. Connor within the meanings of s.2 of WESA.


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.

Introduction

On April 30, 2019, BC’s Labour Minister, Harry Bains, introduced proposed changes to the Labour Relations Code (the “Code”).  Although the Minister touted the changes as aimed to ensure stronger protection of collective bargaining rights and promote more durable labour relations between employers and unions, the proposed changes are clearly labour friendly.

Bill 30, Labour Relations Code Amendment Act, 2019 underwent first reading April 30, 2019 and second reading May 14, 2019.

Below is a summary of the key proposed amendments to the Code.

Definition of Picket and Picketing

The amended definition of picket or picketing specifically excludes consumer leafleting that does not unduly restrict access or egress to a place of business.  This would put the Code in compliance with the Supreme Court of Canada decisions in UFCW, Local 1518 v. Kmart Canada Limited, [1999] 2 S.C.R. 1083 and  R.W.D.S.U., Local 558 v. Pepsi-Cola Canada [2002] 1 SCR 156, that allowed the union to engage in peaceful picketing and leafletting at secondary locations providing there was no intimidation and free access to the premises was permitted.

Unfair Labour Practice

Bill 30 proposes to add section 14(4.1) that would allow the Labour Relations Board (the “Board”) to certify a trade union where the employer has engaged in an unfair labour practice and the Board believes it is just and equitable.  Further, the trade union may be certified without requiring evidence it was likely to succeed through the removal of section 14(4)(f).

Successor Rights and Obligations

The proposed amendments include a new provision under section 35 requiring that when a contract for services is retendered, and substantially similar services continue to be performed, in whole or in part, under the direction of another contractor, then the contractor is bound by all proceedings under the Code before the date of the contract for services was entered into by the contractor.  In addition, the proceedings must continue as if no change had occurred, and any collective agreement in force continues to bind the contractor to the same extent as if it had been signed by the contractor.  The retendering provision would be limited to contracted services for:

  • building cleaning services;
  • security services;
  • bus transportation services;
  • food services;
  • non-clinical services provided in the health sector; and
  • other services that the Government may prescribe by Regulation.

Practically what this means is that where a contracted service provider is unionized, the certification and any collective agreement in force, will bind subsequent contractors thereby attaching the certification and the collective agreement to the contract and not the contractor.

Right to Communicate

The right to communicate as it currently reads allows an employer the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion. However, the suggested amendments would restrict employer communication to a statement of fact or opinion reasonably held with respect to the employer’s business.  This is a significant departure and will impact employers with respect to negotiations, certification and decertification.

Representation Vote Required

The proposed amendment reduces the time to conduct a representation vote from within 10 days to within 5 business days of the application.  A business day means a day other than Saturday, Sunday or another holiday.  Similarly, the time to conduct a representation vote for decertification has been changed from within 10 days to within 5 business days of the application.  In addition, it is proposed that an application to decertify be moved from 10 months after certification to 12 months.

Notice to Bargain Collectively

The proposed amendments extend the time frame after certification where an employer may increase or decrease the rate of pay of an employee in the bargaining unit or alter another term or condition of employment.  This time frame as been extended from 4 months to 12 months.  Furthermore, if the parties do not reach a collective agreement within the 12 months, then the time frame is extended beyond the 12 months until the conclusion of a collective agreement.

Copies of Collective Agreement to be Filed

Currently, each of the parties to a collective agreement must, within 30 days after its execution, file a copy of it with the Board.  This rarely occurs and has not been enforced.  As a result, the proposed amendments require the parties to file a copy of a collective agreement, within 30 days after its execution, or the Board may decline to consider the collective agreement in any proceeding before the Board.

First Collective Agreement

The current Code allows, where the parties have failed to reach a collective agreement, for either party to apply for the appointment of a mediator where the majority of employees in the bargaining unit have voted in favour of a strike.  The proposed amendments would allow either party to apply for the appointment of a mediator to assist in negotiating a first collective agreement.  In addition, the amendments allow the mediator to consider the parties conduct before and after certification.

Adjustment Plans

The employer and trade union must meet, in good faith, to develop an adjustment plan where the employer introduces or intends to introduce a measure, practice or change that affects the terms, conditions or security of employment of a significant number of employees.  The proposed amendments would allow for the appointment of a mediator to assist in developing an adjustment plan.  Furthermore, if the parties have not agreed on an adjustment plan, the mediator may make recommendations for terms of the adjustment plan.

Essential Services

The proposed amendments remove the provision of educational programs to student and eligible children under the School Act as an essential service.

Industry Councils

The proposed amendments would repeal the current section 80 and permit an industry council to recommend measures to achieve more effective collective bargaining and procedures for settling disputes, identify skills and training needs, health and safety issues, competitive and productivity challenge, develop labour market information and marketing initiatives, and make recommendations considered necessary to advance the industry.

Settlement Officer

Currently, after the completion of the steps of the grievance procedure preceding a reference to arbitration, and within 45 days, either party may request that the director appoint a settlement officer.  The proposed amendments remove the 45-day time limitation to request the appointment of a settlement officer.

Case Management Conference

The proposed amendments introduce the provision of a case management conference.  Section 88.1 requires that within 30 days of the appointment of an arbitration board, the arbitration board must conduct a case management conference to schedule the exchange of information and documents, schedule hearing dates, and encourage the parties to settle the dispute.

Appeal jurisdiction of the Court of Appeal

The jurisdiction of the Court of Appeal will be narrowed through the proposed amendments.  Specifically, the Court of Appeal may review the decision or award if it does not fall within the jurisdiction of the Labour Relations Board and if the basis of the decision or award is a matter or issue of the general law and unrelated to a collective agreement, labour relations or related determinations of fact.

Expedited Arbitration

The proposed amendments reduce the time to refer a difference to the director for expedited arbitration from within 45 days to within 15 days of the completion of the steps of the grievance procedure preceding a reference to arbitration.  Furthermore, the arbitrator is required to conduct a case management conference within 7 days of being appointed, conclude the arbitration within 90 days of the issues reference to the director, issue an oral decision within one day of the conclusion of the hearing if requested jointly be the parties and issue a decision with written reasons not exceeding 7 pages within 30 days of the conclusion of the hearing.

Display or Provision of Information

Proposed new section 123.1 adds that the Board must make information about rights and obligations under the Code available to the public.  In addition, the Board may direct an employer to display or make available, information about rights and obligations under the Code and the information displayed must be in the form provided or approved by the Board.

Penalties

Where a person refuses or neglects to observe or carry out an order made under the Code, the proposed amendments increase the liability on conviction to an individual from $1,000 to $5,000 and to a corporation from $10,000 to $50,000.

Final Thoughts

The proposed changes are slanted heavily in favour of labour.  Employers should keep these proposed changes in mind when considering current and future actions.

In particular, the proposed changes to the Right to Communicate and Unfair Labour Practices would appear to create greater incentive to allege Unfair Labour Practice during a certification, especially as it pertains to employer communication, when the Board can certify a trade union where the employer has been found to engage in unfair labour practice and the Board believes it is just and equitable without requiring evidence the union was likely to succeed in its certification vote.

Of note, the Labour Relations Code Review Panel was split on whether to retain the current system of a a secret ballot vote or reinstate the previous “card check” (signed membership cards) system.  In the end, it was recommended that there be no changes to the current system and the secret ballot vote be retained provided there are sufficient measures to ensure the exercise of employee choice is fully protected and fully remediated in the event of unlawful interference.

In addition, with the proposed removal from the Code of education as an essential service, and the contentious negotiations between the BCTF and the NDP Government, the potential for full scale job action looms over parents and schools for next year.

We will keep you appraised as this Bill moves forward.  Buckle up.

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.

The British Columbia Franchises Act came into force February 1, 2019 (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!

In one of our previous articles, we discussed the importance of a franchise disclosure document and how it is intended to summarize and disclose all material facts regarding a franchise to any prospective franchisee. One element of this disclosure relates to the intellectual property of the franchisor. Under the British Columbia Franchises Regulation, a franchisor must disclose “a description of the rights the franchisor has to the trademark, trade name, logo or advertising or other commercial symbol associated with the franchise.”

Generally speaking, a trademark is a symbol, word, design, slogan or logo used to distinguish a brand or product from others. A trademark serves to differentiate one business (franchise) from another and to identify the source of the products and services that the business offers. Trademarks are very important and often assist consumers in recognizing the brand of a certain business.

Under the terms of a franchise agreement, a franchisor usually grants a franchisee with the ability to use the franchisor’s trademarks. While a franchisee will not own the trademark (these rights remain with the franchisor), a franchisee can use the franchisor’s trademarks in operating a franchise.

As a franchisor, any trademarks should be registered under the Canadian Trade-Marks Act, which results in the reservation and protection of a franchisor’s trademarks across Canada. Otherwise, a franchisor might not have the exclusive ability to use a trademark, which could greatly diminish the value of a franchise. Franchisors need to be attentive in protecting their trademarks and should ensure that franchisees only use trademarks pursuant to the terms of the franchise agreement. In addition, a franchisor should ensure that no unauthorized third parties are using their trademarks.

Often, when first consulting with prospective franchisors, we will concurrently advise and assist them with the registration of their trademarks while we prepare the franchise documentation (this process can take over a year from start to finish). This process should be done as soon as possible to ensure that a franchisor’s intellectual property (and essentially, the value of their franchise) is protected.


At Pushor Mitchell LLP, our Franchise Law Practice Group is happy to assist business owners and potential franchisors with protecting their intellectual property as part of the franchising process. Should you require assistance, please contact any of the members of our Franchise Law Practice Group.

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.

Significant revisions to the British Columbia Employment Standards Act (“ESA”) that purport to impact nearly all workplaces in British Columbia are scheduled to come into force shortly.

Bill 8, entitled the Employment Standards Amendment Act, 2019, was introduced on April 29, 2019. It passed second reading on May 13, 2019. Substantial changes to the ESA will result if the bill (as expected) comes into force in its current form. Below are the most significant amendments.

Application of the ESA to Collective Agreements

The ESA does not apply to unionized workforces if a collective agreement has any provisions dealing with hours of work or overtime, vacation, statutory holidays, termination of employment and lay-offs. Bill 8 proposes to revise the ESA such that it will require a collective agreement to meet or exceed the applicable provisions in the ESA.  Many collective agreements contain provisions that do not meet employment standards minimums (such as overtime pay for hours worked). This is generally viewed as a benefit in collective bargaining because it provides the parties with flexibility in bargaining (e.g., a union may accept lower overtime rates in exchange for better benefits coverage). This change will not impact collective agreements currently in force but will apply to collective agreements entered after Bill 8 becomes law.

This is a significant amendment and employers will need to take the increased operational costs into account in the next round of bargaining.

New Statutory Leaves

As noted in a previous blog post, the ESA was recently amended to include new leaves – including a “Child Death Leave” and “Crime-related Child Disappearance Leave” – and expand the length of “maternity” leaves. Bill 8 is introducing two additional statutory leaves, including leaves of:

  • up to 17 weeks per year for persons dealing with domestic violence;
  • up to 36 weeks per year for persons caring for critically-ill family members under the age of 19; and
  • up to 16 weeks per year for persons caring for critically-ill adult family members.

Greater Wage Recovery Period

Employees can currently recover only 6 months’ worth of unpaid wages under the ESA. Bill 8 proposes to increase the wage recovery period to 12 months. In addition, the self-help kit is being eliminated as a required step before filing a complaint with the Employment Standards Branch.

Severance if employment is terminated during a resignation period

If a person’s employment is terminated without just cause after he or she has provided notice of resignation, an employer will be required to pay the lesser of: the amount of termination pay owed pursuant to the ESA; and the amount the employee would have received had he or she worked out the resignation period.

Restrictions on Children in the Workforce

The legal age to work in British Columbia is currently 12 years old. The age is being increased to 16 years of age with exemptions that will allow 14- and 15-year olds to perform light work such as stocking shelves at a grocery store. The government will provide the list of activities and types of jobs eligible for this exemption at a later date. Additionally, children aged 16-18 years old will not be permitted to engage in “hazardous work” in a “hazardous industry” unless they qualify for a still to be determined exemption.

Conclusion

The proposed changes constitute the most significant changes to the ESA in almost twenty years. Employers in unionized environments will be particularly impacted by the revisions. The proposed revisions are subject to change as Bill 8 makes its way through the legislature; however, it is expected to pass in its current form.

What happens if you are appointed Executor?

If you have been appointed Executor in the Will, there are a wide range of obligations if you accept the position of Executor.  You can decline to act as Executor by renouncing your Executorship and signing the appropriate documents so that the Alternate Executor may act or so that some other person may apply for the representation grant.

What do Executor duties include?

  1. Locating the Will and reviewing it with the estate lawyer.
  1. Attending to the funeral and other family matters.
  1. Determining if survivors require funds for living expenses. Financial institutions often release funds from the deceased’s account if urgently required by the survivors.
  1. Reviewing important papers of the deceased. Attending the bank to obtain a listing of the safety deposit box contents and the securities in safekeeping.
  1. Reviewing insurance policies to ensure adequate coverage is in place.
  1. Compiling a list of assets, values and debts.
  1. Reviewing outstanding debts (i.e.: mortgages, loans, agreements) to determine ongoing payment requirements.
  1. Obtaining serial number and registration particulars for all vehicles.
  1. Obtaining names and addresses of all beneficiaries, children, and next of kin.
  1. Redirecting mail.
  1. Canceling credit cards and subscriptions.
  1. Returning pension cheques and government benefit cards. Applying for death benefits.
  1. Notifying financial institutions, life insurance agents, and completing claims.
  1. Obtaining Death Certificates to enable transfer of joint tenancy properties and to claim insurance benefits.
  1. Obtaining the representation grant to provide authority to distribute the estate according to the Will.
  1. The lawyer will do the Wills Search, prepare the required application documents and make application to the Court for the representation grant. As part of the application for the representation grant, the applicant must mail or deliver by email, fax, or electronic means, a copy of the Will (if any) and Notice of Proposed Application in Relation to Estate to certain persons at least 21 days before submitting the application materials for filing with the Supreme Court Probate Registry.
  1. Upon receiving the representation grant, gathering all funds of the estate and disposing of real estate and securities as stipulated in the Will.
  1. Advertising for creditors and reviewing creditors’ claims.
  1. Collecting any outstanding amounts due to the deceased and paying estate debts.
  1. Attending to income tax returns and the tax Clearance Certificate.
  1. Preparing an accounting of monies received and paid out with the proposed final distribution. Distributing it to all beneficiaries for execution with a release of any claims against you as the Executor.
  1. Distributing the funds to the beneficiaries.

What fees can be charged?

The Executor is entitled to charge fees up to a maximum of 5% of the gross value of the estate plus reimbursement for all out of pocket expenses, unless otherwise authorized by the Will or by contract.  Fees must be approved by the beneficiaries or, in the absence of that, by the Court.

If the estate is small, it may be possible to distribute the assets without obtaining a representation grant.  The advice of the lawyer should be sought to determine the correct course of action.


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!

There are innumerable reasons that parties may find themselves co-owning real property with friends, family or business partners and just as many reasons why that co-ownership relationship may turn sour. When there are intractable differences between co-owners and one or more of them wish to “get rid” of their interest in the subject property or the property, the Partition of Property Act, R.S.B.C. 1996, c. 347 is often tuned to as was the case in the recent decision of Durrani v Lehal, 2018 BCSC 2489 (CanLII).

In the case, Messrs. Durrani and Lehal purchased an investment property with the intention of sharing in rental income, sharing in expenses associated with the property and, presumably, sharing in any profit earned on its future sale. Things went well for 11 years or so until it came time to do repairs and renovations to the property and the two gentlemen could not work out their differences. The situation was exacerbated by Mr. Legahl moving into the main portion of the property and a claim for an interest in the property advanced by a third party, Ms. Pabla, who had been residing with Mr. Lehal.

Mr. Durrani eventually stated his intention to liquidate his interests in the subject property. Mr. Durrani sought to liquidate his interests through the Partition of Property Act. Mr. Lehal resisted that process on the basis that there were issues that had to be determined through a trial rather than the partition process.

The court confirmed that the purportedly triable issues raised by Mr. Lehal did not preclude the sale of the property given that such issues would result only in the need to determine the division of the proceeds of sale. The court noted that the Partition of Property Act has been held to provide that a party owning at least 50% interest in the property should not be denied the sale of the property except if there are “good reasons” not to allow such a sale. The Partition of Property Act similarly allows a minority owner to seek the sale, although the standard set for such relief is higher.

Mr. Lehal did not provide an undertaking to purchase Mr. Durrani’s interest in the property; an option available to remaining owners to preclude a sale when one or more of the other owners seek the sale of a property through the Partition of Property Act. Having failed to provide such an undertaking, the court saw no reason to delay its judgment or the sale of the proeprty. Similarly, any arguments about disproportionate contribution to renovation costs were not a reason to delay a sale with such claims further lacking an evidentiary basis.

Having found that an order for the sale of the property was appropriate, the court turned to the question of who should have conduct. The court rejected Mr. Lehal’s request for joint conduct of sale as that would be unlikely to result in harmonious sales efforts. Mr. Lehal’s occupation of the premises was also a factor in finding that he may not have been as motivated as Mr. Durrani to achieve the best price for the property. The court ultimately granted Mr. Durrani conduct of sale.

Durrani v Lehal is illustrative of the legislative authority courts have to resolve intractable disputes between owners of real property by simply ordering the property sold. This may come as a relief to some and cause chagrin to others. Well drafted co-ownership agreements can go a long ways to avoiding the potential sale of a co-owned property or disputes about what each owners’ responsibilities are and the option always remains for one owner to purchase the interest of others.


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.

WHAT IS CFL?

Collaborative Family Law (CFL), is a client controlled, out-of-court process utilizing collaboratively trained professionals like lawyers, divorce coaches, financial planners, and child specialists to help spouses achieve mutually acceptable solutions to issues arising when they separate.

The goal of CFL is to approach problem-solving creatively using the participants to brain-storm solutions, evaluate options, and allow the spouses to decide the best steps forward.  Negotiations in CFL are interest based.  That is, the spouses’ interests are explored, and negotiations strive to meet those interests.  The process allows for creative thinking and promotes tailor-made solutions for families.

HOW DOES CFL WORK?

Each spouse hires their own collaborative lawyer who has specialized training in collaborative dispute resolution.  The lawyers and clients sign a participation agreement containing the guiding principles for a collaborative case.  Generally, the clients agree to produce all information and documents necessary to resolve their family law case, and to negotiate in good faith.  That is, neither spouse will take advantage of the other spouse or hold-back information.

There are a series of four-way meetings during which the facts and law are discussed.  If there is a dispute about the facts, then the participants decide what information is needed to resolve the dispute and how to obtain it.  If there is a dispute about the law, then the lawyers can each research the issue and present their findings to the group to discuss.

Often, other experts are also used to help spouses in making decisions.  For example, divorce coaches are licensed, registered professionals who help spouses adjust to the new situation and deal with emotional or psychological challenges arising from the separation.  They help spouses develop better communication and problem-solving skills which are very helpful when addressing future issues.

Collaborative financial specialists like accountants, financial advisors, and business valuators help spouses navigate through financial issues that arise on separation.  They can help spouses plan for their financial future including addressing tax issues, determining values of assets, creating budgets or retirement plans, etc.

Child specialists with training in child development and psychology help parents understand the separation from the child’s perspective.  They help to determine the emotional and psychological needs of children experiencing family break-up, and how to best meet those needs.  Developing parenting plans, assisting parents with communication or parental conflict issues are just a few of the services provided by child specialists.

If an expert is required then they are jointly retained.  The expert reports to both spouses.

Usually, the outstanding issues of fact and law are resolved or considerably narrowed allowing the spouses to make an informed decision without risking trial and giving the decision to a stranger – the judge.

If a lawyer knows his or her client is not acting in good faith, then the lawyer must withdraw from the collaborative process.  When one collaborative lawyer withdraws it signals to the other collaborative lawyer that the guiding principles are not being followed and that lawyer must also withdraw.  The clients must then each retain new counsel and incur the extra expense of starting over.  The collaborative lawyers do not assist the new, non-collaborative lawyers who start afresh.  Starting afresh is expensive.  The incentive is to keep tackling the problem until it is resolved.

WHY USE CFL?

Consider what judges do:  They listen to each spouse tell their side of a story and then the judge chooses who to believe – the judge decides the facts.  Then the lawyers try to persuade the judge on how the law should be applied.  The judge then makes a decision that affects your whole life when actually knowing very little about your whole life.  Or your children’s lives.  Why allow a stranger to make such important, long lasting decisions?  Why not use two family law lawyers to help determine the facts and law necessary to assist you in making decisions about your family who you know best?  CFL allows spouses to make decisions knowing there is no hidden information or agenda, and with the help of two experienced family law lawyers.

WHEN TO USE CFL?

The CFL process is most suitable for reasonable people.  However, with the help of other experts like divorce coaches, etc. the process can be adapted to accommodate individuals with mental health issues, etc.

However, the process is not suitable for rogues.  Rogues cannot be trusted.  The CFL process hinges upon mutual trust to produce all relevant information and documents and to negotiate in good faith.

ADVANTAGES AND DISADVANTAGES OF CFL

An advantage of CFL occurs when there is a dispute about the facts or the law it can be addressed by the participants, rather than obtaining a trial judge’s decision.

The process is private and arranged to suit the spouses’ schedules and needs.  Court, on the other hand, is public and litigants are subject to the court’s schedule.

Further, the CFL process helps people learn how to settle future disputes using interest-based negotiations.

It is almost always cheaper to resolve family law disputes by CFL than litigation.

Also, the spouses maintain control of the process unlike the court process which is dictated by law.

A disadvantage can arise when despite time being invested in the process it starts to deteriorate and the duty of good faith negotiation is compromised.  But no one wants to stop the process because they think too much has been invested only to abandon it and start legal proceedings with new lawyers.  Consequently, the process continues, but it is no longer collaborative, and the duty of good faith may start to wane.

Another issue arises when all issues have been resolved but one which, for whatever reasons, remains unresolvable and requires a third-party decision maker.  In such situations, the collaborative lawyers can document the resolved issues and the one outstanding issue can then be litigated or arbitrated with new counsel.

Not all family law cases are meant for CFL so it’s best to consult a CFL lawyer to see whether your case is suitable.  At Pushor Mitchell we have three CFL-trained family law lawyers:  Taryn Moore, Leneigh Bosdet, and me, Patrick Gaffney.

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 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.