Archive for the ‘Commercial Litigation’ Category

Contract Law Largely Explored in One Case

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Often times parties to a contract have a less than clear understanding of many of the principles of contractual law.

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Keeping Construction Costs Under Control: Costs-Plus vs. Guaranteed Maximum Price

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One of the most frequent types of construction disputes centers on what is owed vs. what is charged for work.

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Inform your Insurer of Material Changes in Risk or You Could Lose Coverage

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On January 21, 2014, Mr. and Ms. Schellenberg suffered losses when a building on their property was damaged by a fire.

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Failing to Commit a Contract of Purchase of Sale for Real Property to Writing: A Potential Incurable Mistake

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As was discussed in my previous article, Property, Parties, Price – How Far the Court Will Go to Insert the 3 P’s of Real Estate into a Contract, it is critical that parties to a contract of purchase and sale for real property take the time to properly document the terms of their contract.

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Construction Estimates and Failure to Agree on Contract Pricing

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As the court observed in its recent decision, All Out Contracting Ltd. v Gourlay, 2020 BCSC 481 (CanLII) (“All Out”), construction work begins before the owner(s) and contractor properly define their contractual relationship, if they ever do so

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Negligent Construction – Who to Sue and What to Sue For

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One of the challenges in negligent construction disputes is that plaintiffs often start litigation only knowing something is wrong that needs to be fixed.

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Pre-Judgment Garnishment: A Powerful but Exacting Tool

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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.

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Can a Home Inspector Limit Their Liability?

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When would-be homeowners obtain home inspections, they place a great deal of reliance on the inspection report they receive.

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Defamation, the Protection of Public Participation Act and Strategic Lawsuits Against Public Participation

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On March 25, 2019, the Protection of Public Participation Act was assented to bringing into force legislation aimed at combating strategy lawsuits against public participation.

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Alternative Sources of Recovery on Denied Insurance Claims: When Insurance Brokerages Might be Liable

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When a party is denied on a claim by an insurer, a careful analysis of whether the denial is properly made is important.

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Real Estate Purchases: When the Deposit Becomes Non-Refundable

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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.

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Substantial Damages Awarded for Defamatory Social Media Posts

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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 continues to underscore that social media posts are public domain.

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When A Debtor Puts Assets Out of Reach: Use of Fraudulent Conveyance Proceedings to Recover Debts

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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.

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Pre-Judgment Garnishment: Full and Frank Disclosure is Required

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The recent case of Opus Consulting Group Ltd. v Ardenton Capital Corporation focused on the level of disclosure required to support and sustain a pre-judgment garnishment order.

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Construction Disputes: A Contractor’s Right to be Paid vs. Owner’s Claims for Defective Work

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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.

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Discharging a Builders’ Lien on Posting of Security: What is Sufficient Proof?

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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.

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Commercial Tenancies: Removing an Overholding Tenant

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The rights and remedies that attach to commercial tenancies are generally prescribed by the lease agreement giving rise to the tenancy.

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Insurance Law: Material Non-Disclosure Results in No Coverage

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It is not an usual story: an insurance applicant does not make full and frank disclosure in their insurance application.

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Insurance Deductibles: Without Proper Notice, They Aren’t Payable

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It is no secret that insurers are motivated to find ways to deny part or all of a claim.

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Pre-incorporated Companies and Privity of Contract

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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.

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Co-Ownership of Real Property: Sort It Out or Risk Having It Sold

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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.

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Extras, Delays and Completion Dates in Construction Disputes

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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.

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Breach of Contract and Repudiation: Affirm or Accept the Repudiation, Not Both

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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.

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Discharging a Builders’ Lien on Posting of Security: How Much is Enough?

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When a builders’ lien is filed, it can cause all manner of disruptions to financial, contractual and business relations

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Builders Liens: The Consequences of Less than Strict Compliance

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In my previous article, Builders Liens: Strict Compliance or Lose Your Lien, I explored how a family company lost its lien rights by making the mistake of pursuing its lien in the name of its principal rather than the company.

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Meeting of the Minds – When A Contract Is Or Is Not Formed

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In a number of previous articles, I have explored some of the difficulties encountered where parties fail to properly set out the contractual terms that dictate the rights and responsibilities between them.

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Property, Parties, Price – How Far the Court Will Go to Insert the 3 P’s of Real Estate into a Contract

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The Statute of Frauds and Canadian jurisprudence require that for any contract of real property to be enforceable, it must contain an agreement with respect to three essential elements knowns as the 3 P’s: parties, property and price.

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Promissory Notes and Settlement Agreements – Commit Agreements to Writing

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Often times parties will turn to friends, family, acquaintances or business relations to seek funds to borrow rather than a bank or other lending institution.

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The Importance of Spelling Out What Is or Isn’t in a Contract

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One of the most frequent mistakes people make in entering contracts is in making incorrect assumptions about what is or is not included in a contract.

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Enforcing a Settlement Agreement: Naming the Right Parties

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As discussed in a previous article, settlement agreements are effectively contracts which can be enforced through legal action and replace whatever legal, contractual or equitable rights were involved in the fight that preceded settlement.

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Contractual Terms by Convention: When Parties Fail to Explicitly Set Contractual Terms

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One of the frequent issues encountered in contractual litigation is parties failing to negotiate and set to writing the contractual obligations that exist between them.

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What One Has Earned – Courts Impose Compensation Where Parties Fail to Solidify a Contract

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Often times, parties will get to the edge of entering into contractual relations, but miss the steps required to form a contractual agreement.

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Public Bidding, Exclusion Clauses and Public Policy Concerns: Contracting Out of Liability for a Flawed Bidding Process

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

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Plastic Bag Bans

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In recent years, several communities all over the world have sought to means by which to reduce the accumulation of plastic in our natural environment.

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Limitation Periods for Demand Mortgages

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The BC Court of Appeal has pronounced a new decision which lenders in BC and their lawyers will want to be aware of.

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Fiduciary Duties to a Corporation: Will the Court Extend the Duty to Third Parties?

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A fiduciary relationship is a relationship in which one party places distinct trust, confidence and dependence on another.

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Invitations to Tender: Why it is Important Both Bidders and Solicitors to Follow Proper Process

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Government and non-government actors that solicit bids for contractors for management or construction projects must follow a fair and transparent process for doing so.

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When a Party Breaches a Settlement Agreement: Being Made Whole

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Settlement agreements that conclude litigation are often reached once the parties have gotten to a point of a loss of faith in one another or a complete breakdown in whatever relationship they may have enjoyed pre-litigation.

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The Risks of Complaining on Social Media: When Airing Grievances Attracts Damages

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The intersection of defamation and social media remains a minefield and social media users are well-advised to treat social media posts no differently from any other form of publication.

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When Liability Waivers Are Upheld

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

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Piercing the Corporate Veil in Construction: When Work is So Bad it Amounts to Fraud

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It can be frustrating for homeowners dealing with inadequate contractors that the controlling mind/primary owner of the company can hide behind their corporation to avoid personal liability.

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Posting Security to Discharge a Builders Lien

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A builders lien can be an effective, powerful and inexpensive tool for helping unpaid contractors, subcontractors, suppliers receive payment for their materials and services.

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Negligent Construction and Winnipeg Condo

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As I’ve previously written, the “Winnipeg Condo” decision is an authority by which a party may seek to recover against negligent builders and contractors.

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If You’re Going to Build, Do it Right: Subsequent Owners’ Right to Sue a Builder and/or Former Owners

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Building your own home can be a challenging, but rewarding experience. Many property owners will choose to oversee or complete the construction of their home.

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Real Property, Legal Title, Equitable Title and the Torrens System: Presumptions as to Ownership

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Real property ownership in British Columbia is governed by a modified Torrens system for title registration.

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Contractual Interest vs. the Interest Act

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Contractual interest can represent a significant component of the value of a contract for the party entitled to interest, a significant part of the costs of a contract to the party paying interest and a significant deterrent to a would be breaching party.

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Property Disclosure Statements: Buyer Beware (Still)

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In virtually all standard contracts of purchase and sale, the parties agree that the vendor will provide a property disclosure statement (“PDS”) and that the representations made in the PDS will survive the completion of the contract.

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Dealing with Land? Write it Down

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In British Columbia s. 59 of the Law and Equity Act, R.S.B.C. 1996, c. 253 (the “Act”) essentially requires that contracts dealing with

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Losing Your Right to Recover: The Risks of Firing a Contractor for Deficient Work

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In the case of Jozsa v. Charlwood-Sebazco, 2016 BCSC 78 (CanLII) the Plaintiff, Mr. Jozsa, was a very experienced landscape designer hired by Ms. Sebazco to complete landscaping at her home.

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When Municipal Building Inspections are not Enough

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Too often, people mistakenly assume that because the home or renovations are done in accordance with architectural plans and within the requirements of the applicable municipality or district, that the home or renovations are sound.

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YouTube, Trademarks, Copyrights and the Potential Fall of Fine Brothers Entertainment

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If you are entwined in the world of new media or have just found yourself on YouTube or social networks lately, you may have noticed a number of sarcastic comments or videos.

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When Business Relationships Change, Temptations and Tensions Rise

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Small corporations, where two or three family members and/or friends incorporate a company and go into business together, are the bread and butter of our community’s vibrant and diverse business community.

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Patent vs. Latent Defects and Caveat Emptor

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The local housing market appears to be on the rise. While this is a good sign of our recovering economy, it is also an appropriate time for purchasers to remind themselves of some of the risks and their legal rights when purchasing a home. The maxim, “buyer beware” (or caveat emptor), applies to purchasing a […]

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A Refinement Of The Shimco Lien

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In 2002 the court’s decision in Shimco Metal Erectors Ltd., 2002 BCSC 238 and 2003 BCCA 193 caught both the construction industry and the legal community by surprise.  Prior to Shimco it was commonly held that the only way to maintain a claim of lien was through the normal process of filing in the appropriate Land Title Office the standardized claim of lien form prescribed by the Builders Lien Act against title to the property [...]

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The Credit Application Says Interest On Overdue Accounts Is 2% Per Month..Why Can I Can Only Collect 5% A Year?

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Clients often come to us with a credit application and want to know why they cannot collect interest at the rate specified in their contract.  The contract explicitly states a monthly interest rate, so what is the problem?

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