Archive for the ‘Litigation’ Category

Commercial Tenancies: Removing an Overholding Tenant

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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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Assignment of a Contract of Purchase and Sale: Get it in Writing

By Jeremy Burgess
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.

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

By Jeremy Burgess
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?

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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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Contracts of Purchase and Sale: Removing Subjects

By Jeremy Burgess
Most people familiar with the purchase and sale of real property are familiar with subject to clauses, the full legal significance of such clauses can be a source of confusion.

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Proprietary Estoppel, Land Use and Oppression

By Jeremy Burgess
The recent case of Dalpadado v North Bend Land Society.

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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Eric Ledding
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?

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

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Children and the Standard of Care: Can you Sue Children for Negligence?

By Jeremy Burgess
While the law often concerns itself with compensating children who are injured as a result of negligence, it sometimes also has to grapple with whether a child can be held responsible for the injuries or loss suffered by others.

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When a Child is Hurt at School: Is it Just an Accident or is Someone Liable?

By Jeremy Burgess
For better or for worse, injuries are a part of childhood and the process by which children learn to explore the world around them.

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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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

By Jeremy Burgess
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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Liability Waivers: If in Doubt, Get a New One

By Jeremy Burgess
Categories: Blog, Litigation
Liability waivers are a must for any company inviting members of the public to engage in a risky activity.

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Contracts of Purchase and Sale, Frustration, Relief from Forfeiture and the Foreign Buyer Tax

By Jeremy Burgess
Categories: Blog, Litigation
On July 25, 2016 the Property Transfer Tax Act introduced a 15% tax on foreign entities or taxable trustees in addition to ordinary property transfer tax.

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Time is of the Essence: When Late is No Better Than Never

By Jeremy Burgess
Contracts for the purchase and sale of real property and many other commercial contracts contain a clause that says in respect of certain or all contractual obligations that “time is of the essence.”

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

By Jeremy Burgess
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

By Jeremy Burgess
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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Prosecute or Get off the Pot: Dismissing for Want of Prosecution

By Jeremy Burgess
Categories: Blog, Litigation
When a party commences litigation, the courts and rules of court provide plaintiffs a fair amount of latitude to control the pace of their case and to determine how and when the matter proceeds.

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Negligent Construction and Winnipeg Condo

By Jeremy Burgess
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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Limitation Periods and Emails: Can an Email Signature Extend a Limitation Period?

By Jeremy Burgess
Categories: Blog, Litigation
One of the first tasks in any potential litigation matter is to identify the applicable limitation period.

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When Breaches of the Strata Property Act Result in a Forced Sale

By Jeremy Burgess
We’ve all had them at some point: those neighbour you can’t seem to get along with.

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New SCC Decision Changes the Right to Reasonable Bail in Canada

By Ginger Holmes
Categories: Blog, Litigation
R. v. Antic, 2017 SCC 27, changed the landscape of judicial interim release in Canada.

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Buying and Selling Property in a Hot Market: Flipping a Contract of Purchase and Sale

By Jeremy Burgess
It is most likely common knowledge that, for quite some time, the housing market in the lower mainland has been a highly competitive environment.

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First Appeal from the Civil Resolution Tribunal

By Jeremy Burgess
Categories: Blog, Litigation
The Civil Resolution Tribunal is Canada's first online tribunal.

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Collecting on a Judgment

By Eric Ledding
Categories: Blog, Litigation
When you have a debt claim, a first major consideration is obviously how you can collect the amount you are owed cost-effectively.

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

By Jeremy Burgess
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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Builders Liens: Strict Compliance or Lose Your Lien

By Jeremy Burgess
Categories: Blog, Litigation
While not guaranteeing the settlement of disputes, the Builders Lien Act provides a powerful tool for contractors, subcontractors, workers and suppliers.

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New Monetary Limit in Small Claims and the Enhanced Role of the Civil Resolution Tribunal

By Jeremy Burgess
Categories: Blog, Litigation
The Government of British Columbia recently announced significant changes to how legal disputes worth less than $5,000 and between $5,000 and $35,000 get resolved.

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Court Awards Damages for Unauthorized Use of Architectural Plans and Drawings

By Mark Danielson
The recent decision of Ankenman Associates Architects Inc. v. 0981478 raises some interesting issues surrounding the intersection of copyright law, construction law, and the foreclosure process.

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Overplaying Your Hand: Risking Special Costs

By Jeremy Burgess
Categories: Blog, Litigation
When commencing a claim or a counterclaim, there is a temptation to throw every allegation at the wall just to see what sticks.

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The Follies of Forum Shopping

By Jeremy Burgess
Categories: Blog, Litigation
In previous articles, I discussed the interactions between attornment, territorial competence, the forum of convenience and the law informing where litigation will proceed. These issues all intersected in the recent decision, Boyd v. Cook.

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Contractual Interest vs. the Interest Act

By Jeremy Burgess
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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Reinstatement Under the Canada Labour Code

By Alfred Kempf
Categories: Blog, Litigation
In a new decision in Wilson v. Atomic Energy of Canada Limited, the Supreme Court of Canada has affirmed that non union, non management, employees of federal undertakings may under the complaint process under the Canada Labour Code be reinstated.

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Choice of Law: When your Actions Revoke your Choice

By Jeremy Burgess
Categories: Blog, Litigation
In my previous article, Here, There or Anywhere: Where to Sue and be Sued, I discussed factors the Courts in BC consider when determining whether or not to adjudicate on matters where the matters could be determined in more than one legal jurisdiction. In this article, I will discuss a recent case, Naturex Inc. v. […]

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Here, There or Anywhere: Where to Sue and be Sued

By Jeremy Burgess
Categories: Blog, Litigation
In many potential litigation matters, a preliminary issue is the place in which the litigation is to proceed.

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Property Disclosure Statements: Buyer Beware (Still)

By Jeremy Burgess
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

By Jeremy Burgess
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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Can They Sue Me For That?

By Eric Ledding
Categories: Blog, Litigation
At some point in your life, you have undoubtedly heard someone threaten to sue someone else

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

By Jeremy Burgess
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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Surgical Safety in Canada: A 10-year Review

By Paul Mitchell, Q.C.
A 10-year analysis of approximately 3,000 malpractice complaints and settlements involving surgical “incidents” in Canada has just been released by the Canadian Medical Protective Association.

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Facebook and Defamation: Potential Liability for Any Post and Any Friend’s Comments

By Jeremy Burgess
Categories: Blog, Litigation, Technology
It likely comes as no news to most readers reading that social media is simultaneously a minefield or a gold mine for any litigation matter.

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Good News for Designated Drivers

By Matthew Canzer
Categories: Blog, Litigation
A drunk and unruly passenger is still "using" the vehicle, even if he is (thankfully) not driving it.

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When Municipal Building Inspections are not Enough

By Jeremy Burgess
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

By Jeremy Burgess
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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Know Your Exposure: Joint and Several Liability Explained

By Parveen Shergill
Categories: Blog, Business Law, Litigation
The legal concept of “joint and several liability” confuses many people. As the name suggests, where “joint and several liability” applies, liability is both...

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Self-Represented Litigants, Arbitration and Natural Justice

By Jeremy Burgess
Categories: Blog, Litigation
For years, Courts in BC have observed a general trend towards an increasing number of self-represented litigants coming to Court.

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Should I Settle Or Not? Formal Offers To Settle

By Jeremy Burgess
Categories: Blog, Litigation
Some of the most common questions asked by my clients are whether they should engage in settlement discussions with opposing parties and whether a settlement offer made to them is reasonable to accept.

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Prejudgment Garnishing Orders: Getting it Right

By Jeremy Burgess
Categories: Blog, Litigation
If someone owes you money and you become involved in a legal dispute in BC, it is possible to seek a prejudgment garnishing order by the authority of the Court Order Enforcement Act for debts owed to you.

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Before You Sign…

By Pushor Mitchell LLP
How many simple documents or forms do you sign each year without reading?

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When Business Relationships Change, Temptations and Tensions Rise

By Jeremy Burgess
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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Dock Liability

By Paul Mitchell, Q.C.
What risks do you have if you own a waterfront property with a dock?

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BC Court of Appeal Teacher Case

By Alfred Kempf
Categories: Blog, Litigation
See the complete written Court of Appeal case reasons here.

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Use It Or Lose It! Builders Lien Claimants Must Prosecute Claims Diligently or Risk Losing Their Security

By Mark Danielson
Categories: Blog, Construction, Litigation
Our courts regard claims for builders liens (“CBLs”) as extraordinary remedies because they allow one to encumber another’s land before proving, in court, that person owes them money.

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How Closely Related Must Work be to a Project to Give Rise to a Builders Lien?

By Mark Danielson
Categories: Blog, Construction, Litigation
I am often asked whether a person may claim a builders lien for the supply of work or materials to a construction project where the right to do so is not obvious.

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Parent’s Held Responsible for Child’s Damage to BC School: Must Pay $48,000

By Paul Mitchell, Q.C.
Categories: Blog, Litigation
A recent BC case held parents liable for damages of over $48,000 caused to school property by their child. This case highlights the sometime harsh effects of s.10 of the BC School Act, which holds parents responsible for intentional damage to schools done by their children, even though the parents have nothing to do with their children’s conduct.

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Cyclists: Enjoy the Ride in Safety

By Jeremy Burgess
During the summertime, there’s almost no better way to enjoy the sunshine than a ride on your bicycle. Whether you are training for a GranFondo or Iron Man event or simply enjoying a casual ride on the weekend, cycling is a great way to enjoy the summer and a fantastic alternative to driving. A recent […]

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Why Paying for Timely Legal Advice Saves you Money in the Long Run

By Jeremy Burgess
Categories: Blog, Business Law, Litigation
There is an old saying that an ounce of prevention is worth a pound of cure. This is almost never truer than when it comes to getting timely and competent legal advice. Very often people find themselves seeking the assistance of a litigator because at the beginning of a transaction or when a person became […]

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Patent vs. Latent Defects and Caveat Emptor

By Jeremy Burgess
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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Idle-O

By Jeremy Burgess
This post discusses the hundreds, if not thousands, of land contracts in British Columbia that may be negatively affected by section 73 of the Land Title Act, R.S.B.C. 1996, c. 250 and the line of legal authorities stemming from International Paper Industries Ltd. v. Top Line Industries Inc., 1996 CanLII 3340 (BC CA) ("Top Line").

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The Lingo Of Litigation – The Sequel

By Alfred Kempf
Categories: Blog, Litigation
In a previous article I talked about phrases used early in the litigation process. In this article I will talk about some of the terms that come up later in the process.Arbitration

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Top Court Addresses Random Alcohol Testing In Unionized Workplace

By Joni Metherell
Categories: Blog, Litigation
   In a recent 6 – 3 decision, the Supreme Court of Canada weighed in on a labour relations matter that has been a source of confusion for employers and unions alike for several years – mandatory and random alcohol testing for unionized employees working in safety sensitive positions.

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Avoiding The Builders Lien Act May Be A Costly Mistake

By Mark Danielson
Categories: Blog, Litigation
A drawback of British Columbia’s Builders Lien Act, S.B.C. 1997, c. 45 (the “Builders Lien Act”) is that the cost of enforcing a lien relative to the amount in dispute may be prohibitive. A builders lien must be enforced in the Supreme Court of British Columbia even if the value of the lien is within the monetary jurisdiction of Small Claims Court (i.e. $25,000.00 or less).

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The Lingo Of Litigation

By Alfred Kempf
Categories: Blog, Litigation
The legal profession uses all kinds of words and phrases that are quite mysterious to most people who have not been involved in the process. I will attempt to demystify some of these words and concepts:Legal action or proceeding:These are the words used to describe a dispute that is referred to the courts for resolution. Every action or proceeding is assigned a number when it is filed with a court.  Once an action or proceeding is filed [...]

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Ask A Lawyer – Can I Do Anything At The Start Of The Lawsuit To Make Sure The Defendant Pays Me If I Am Successful?

By Greg Pratch
Categories: Blog, Litigation
Many clients that I speak to are disappointed to find out that there are very few options that allow you to take steps at the beginning of a lawsuit to help ensure that you recover a judgment should your lawsuit ultimately be successful. Generally speaking, we start with the principle that a person commencing a lawsuit, the Plaintiff, cannot take any steps against the assets of a Defendant in a lawsuit until that Plaintiff wins the lawsuit [...]

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