Publications

25th Anniversary US at SU (03/21/11) In celebration of Singleton Urquhart's 25th Anniversary, a special edition of Letter of Law was published with stories from members of the firm.

A Bank its Customer and an Extra-Layered Fraud Derek A Brindle Q.C. and Mark C Stacey (06/01/07) Recently, the British Columbia Court of Appeal considered the right of a bank’s customer to retain funds from a forged third-party cheque which was innocently deposited to its account. In B.M.P. Global Distribution Inc. v. Bank of Nova Scotia the issue arose in the context of an action by account holders in which they sought to retain monies credited to a corporate bank account in the amount of $904,563. Download

A Limit on Claims for Punitive Damages John R Singleton Q.C. (09/01/06) The Supreme Court of Canada has overturned a $100,000 punitive damages award granted by the British Columbia Court of Appeal against a disability insurer. On June 29, 2006, the Supreme Court released its judgment in Fidler v. Sun Life Assurance Co. of Canada that limited punitive damages claims against insurers for improper or unfounded denials of coverage. Download

A Lot of Discretion under the Property Law Act Mark S Thompson and Mitch Dermer (06/08/11) On April 17, 2011, the Supreme Court of Canada dismissed an application for leave to appeal in the remarkable case of Gainer v. Widsten which involved the encroachment of a building on a neighbouring property The original 2005 British Columbia Supreme Court decision in this matter (later upheld by the BC Court of Appeal) may seem a bit counterintuitive as the party at fault could be seen as achieving a favourable result. Download

A Razors Edge Mark C Stacey (10/29/09) In a recent case, BCE Inc. v. 1976 Debenture Holders, the Supreme Court of Canada has provided a useful summary of directors’ duties during times of fundamental change within a corporation. This decision is of particular interest to directors and shareholders in public and privately held companies who are confronted with challenging strategic decisions in the current economic crisis. In the Summer and Winter 2007 issues of Letter of the Law, we discussed statutory remedies that offer shareholders the ability to protect their interests in a company. In British Columbia (and in most of the rest of Canada), this allows claims to be advanced against conduct within a company that is “oppressive” or “unfairly prejudicial” to shareholders. In the BCE case the Court clarified the law regarding the oppression remedy. Download

A Settlement Agreement Successfully Defended Ian Jones (09/07/11) A settlement is designed to bring finality to insurance and tort claims. Occasionally, however, after the event, a claimant later rethinks the decision and challenges the validity of the settlement. Download

A Tenants Perspective on Commercial Leases The Lease Roger E Holland (09/01/06) In the previous issue of Letter of the Law, we discussed some of the pitfalls—from a tenant’s perspective—when entering into an offer to lease of commercial premises. We now turn to concluding a commercial lease agreement. Many of the issues raised in our earlier article with respect to key clauses in an offer to lease also apply in the lease agreement itself. Download

A Tenants Perspective on Commercial Leases The Offer to Lease Roger E Holland (06/01/06) Negotiating a lease can be one of the most important contracts a business will enter into. Whether the lease is for an office, store or warehouse, it is surprising how often business owners sign a landlord’s (or lessor’s) standard lease without first undertaking a diligent review of the document to ensure they understand their obligations. Such a trusting approach can have dangerous consequences as many commercial leases tend to place most of the power and authority in the landlord’s hands and most of the obligations on the tenant (or lessee). This is why all leases should be carefully scrutinized and the more burdensome terms modified or removed. Download

Advancing the Purposes of the Human Rights Code Melanie Samuels (11/07/12) Responding to a human rights complaint can often seem to be a daunting and frustrating process—particularly for respondents who feel they have already taken reasonable steps to address and correct the concerns that the complaint has raised. Recently however, the British Columbia Human Rights Tribunal has taken a strong stance in favour of respondents who want to resolve a complaint early in the process. If the Tribunal determines that continuing to advance a complaint will not further the purposes of the Human Rights Code, it may, relying on the power contained in Section 27(d)(ii), dismiss the claim prior to a hearing. Download

Allocating Coverage Between Insurers (03/01/07) A recent British Columbia Supreme Court case, involving the recovery of costs for fighting a forest fire, highlights the interplay between contractual obligations and insurance coverage. It also underlines the corresponding importance of ensuring that proper steps are taken to access available policies of insurance and to clarify the coverage between contracting parties, given the effect of legislation on recoverability under certain insurance policies.

Alter Ego and Joint Partner Trusts Roger E Holland (12/01/09) In the last issue of Letter of the Law, we discussed how the provisions of your will could be subject to variation under dependent relief legislation, if, in the opinion of the court, you fail to make “adequate, just, and equitable” provision for your spouse and children. One way of preventing the courts from interfering with your estate plan is to transfer your assets to a trust during your lifetime (known as an inter vivos transfer) through the creation of either an alter ego trust or a joint partner trust. Placing your assets in a trust may also have additional benefits such as reducing probate fees, protecting against creditor claims, and deferring or saving taxes. Download

Ambiguities in Employment Agreements Barb Cornish and Veronica S.C. Rossos (03/01/09) Traditionally, the law provides employers with two ways of protecting themselves from business risks associated with departing employees: the law of contract and the common law. In highly competitive industries, employers frequently use employment contracts with restrictive covenants to protect their legitimate business interests from employees who may, at some point, resign and depart. Restrictive covenants can take the form of confidentiality clauses, non-solicitation clauses and non-competition clauses. Recently, questions about the utility of such contractual clauses have arisen. Employers’ efforts to protect themselves have been repeatedly thwarted by former employees’ claims that such efforts at protection were “unreasonable”. And the law in Canada is clear: to be effective, restrictive covenants must be “reasonable” in their scope—and they must be unambiguous. Download

Amendments to Insurance Act Introduced in BC Legislature Wei Kiat Sun (06/01/08) On April 30, 2008, the Government of British Columbia introduced amendments to the Insurance Act (Act) with the declared purpose of enhancing consumer protection and increasing efficiencies for the insurance industry. These amendments are also intended to clarify and improve the readability of the Act’s language, provide better access to insurance contract information and improve dispute-resolution processes.

Apology Act to Promote Better Dispute Resolution Barb Cornish and Wei Kiat Sun (06/01/06) Corporations, governments and individuals may soon be able to offer a sincere apology as part of the process of resolving disputes without the fear of legal liability, thanks to legislation that has been proposed by the Government of British Columbia. Download

Architects Win Appeal Jeffrey A Hand (10/29/08) A March 2007 Client Alert detailed a decision of the British Columbia Supreme Court in Howe Sound School District No. 48 v. Killick Metz Bowen Rose Architects and Planners Inc. In this case, the school board had sued the architects of a leaking school building alleging errors in design and field reviews. The parties had used the Canadian Standard Form of Agreement between Client and Architect which stated that the client could not make a claim against the architects any later than six years after the date of substantial performance of the work. Maintaining that it did not know of the leaks until after this limitation period had lapsed, the school board sued the architects. At trial, the Court dismissed the claim, holding that the school had no right to commence an action after the expiration of the limitation period, even in the circumstances that the school board described. Download

Are Cars to Blame for Everything (07/15/10) Cars are blamed for everything from urban blight to global warming. And, because of mandatory insurance, drivers are sued for all manner of accidents, no matter haw tangential the involvement of a motor vehicle. The question then arises: when a motor vehicle is involved somewhere or somehow in the chain of causation leading to an injury, should an injured person be compensated by motor vehicle insurance? The British Columbia Court to of Appeal recently addressed this question in Hannah v. John Doe, a case in which the facts were decidedly criminal. A woman returning to her car after grocery shopping had her purse snatched while walking in a Coquitlam parking lot. A passenger in a passing van reached through his window and grabbed her purse strap, causing her to fall and be dragged along the ground before the strap finally broke. Download

Avoiding Liability in the Workplace Veronica S.C. Rossos (06/01/09) It is no surprise that as workplaces become increasingly regulated litigation involving workplace disputes, in one form or another, also increases. In times of economic uncertainty, such litigation can only be expected to increase. Architects and their firms occupy a specific legal space, when it comes to the law of workplace issues. This reality necessitates that architects, their employers and their colleagues be aware of the specific statutory and common law rights and obligations that underlie those working relationships. This paper will attempt to summarize some areas of potential liability in the workplace that effect Architects and their firms as well as providing some guidelines and solutions to proactively avoid situations that could give rise to liability and concluding with some creative solutions to address employment issues in our current economic climate.

Avoiding Sexual Harassment and Disability Complaints (10/29/06) This paper will address two main areas of human rights violations facing employers: sexual harassment and disability. Employers and unions are subject to human rights legislation. Section 13 of the Human Rights Code (the “Code”) provides: (1) A person must not (a) refuse to employ or refuse to continue to employ a person, or (b) discriminate against a person regarding employment or any term or condition of employment Because of race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or because that person has been connected of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person. Download

Back to School for Ontario Architects and Engineers Stephen Berezowskyj (03/01/06) As of January 1, 2006, architects and professional engineers in Ontario who take responsibility for that province’s building code compliance in building permit documents must demonstrate their knowledge of the code by passing examinations. In 2003, the Province of Ontario passed the Building Code Statute Law Amendment Act (BCSLAA) to implement a series of recommendations from the Building Regulatory Reform Advisory Group intended to improve the quality of building construction in Ontario by making design professionals more accountable for ensuring compliance with the Building Code. Download

Bad Faith Claims Ian Jones (10/29/08) In recent years, Canadian insurers have observed a significant growth in the number of bad faith claims advanced, although few such claims have succeeded. In rare cases, claims have been made not only against the insurance company, but also against its employees. Personal claims of that nature, usually advanced for misguided strategic reasons, have no prospect of success except in the most unusual cases. Despite that fact, such claims are often very stressful for the named employees and must be defended. Download

Basics of an Employment Contract Roger E Holland (10/29/06) Employment contracts, like all contracts, do not necessarily have to be written to be given effect at law. Employment contracts can be written, partly written and partly oral, or entirely oral. Even written employment contracts may not look like contracts on their face; employment letters, company policy manuals, and other correspondence may form part of the agreement. An employment agreement may be evidenced by a group of documents and discussions and is not necessarily limited to one document called the “contract.” Download

BC Business Corp Act Mark C Stacey (10/29/04) The new B.C. Business Corporations Act (the “BCBCA”) is presently scheduled to come into force in late March, 2004. The introduction of the BCBCA brings considerable changes affecting British Columbia companies, including relating to the duties and responsibilities of directors and officers. Under the old Company Act, a B.C. company was required to have at least one director who was a B.C. resident and the majority of directors had to be Canadian residents. Under the BCBCA there will be no residency requirements at all. Download

BC Court Restricts Appeal from Arbitrators Award Jeffrey A Hand (10/29/08) When parties to a dispute elect to use arbitration, typically one of the motivating factors is the desire to obtain a final and binding decision. Recognizing this, the drafters of the Commercial Arbitration Act in British Columbia, as with legislation found in most other jurisdictions in Canada, provided for very limited judicial review of an arbitrator’s award. The Act provides that only those aspects of an arbitrator’s award that raise questions of law can be appealed to a court of law and, even then, only if the court grants leave to appeal or the parties to the arbitration consent to an appeal being heard. Findings of fact made by an arbitrator cannot be challenged. Download

BCs New Incapacity Planning Legislation - What Does It Mean For You Alana M Dale-Johnson (12/15/11) On September 1, 2011, British Columbia’s Adult Guardianship and Planning Statutes Amendment Act, 2007 (The amended Adult Guardianship Act may be viewed here and the Abuse and Neglect Regulation here.) came into force, amending a number of other statutes, including, most significantly, the Power of Attorney Act (POAA), Representation Agreement Act and Health Care (Consent) and Care Facility (Admissions) Act. (New regulations that accompany these three Acts are Power of Attorney Regulation, Representation Agreement Regulation and Health Care Consent Regulation.) The aim of these amendments is to better protect an incapable adult from financial abuse as well as to provide a more comprehensive regime for managing and structuring an incapable adult’s affairs. Download

Builders Liens in a Tightening Economy Robert A Hodgins (10/29/08) Everyone involved in British Columbia’s construction industry is cautiously, sometimes anxiously, watching the outcome of the current global credit crisis on the local economy. Property owners, consultants and contractors want to make sure that funding obligations on construction projects, whether financing or progress payments, remain secure and timely. But, if invoices for work and material supplied during a project are unpaid, an effective remedy is a builders lien. A claim of lien for an outstanding sum made under the Builders Lien Act (BLA) is filed in the appropriate land title office against the title of the property for which a contractor provided labour, materials or both. Download

Building Code Changes (10/29/09) Effective April 6, 2009, the British Columbia Building Code allowed an increase to the maximum building height for mid-rise, wood-frame, residential construction from four to six storeys.* With these changes, the provincial government wishes to encourage a new market for local wood products, to lower building costs, and to stimulate “green” building practices.

Building Information Modelling BIM the Good and the Bad John R Singleton Q.C. (09/29/10) The form and substance of the construction industry has seen some radical changes in the first decade of this century. The use of public private partnerships or P3’s (see Letter of the Law, Spring 2010) to rebuild public infrastructure has spread from the United Kingdom to the four corners of the planet and becomes more popular with each passing project. The “greening” of the building industry has created a whole new industry within an industry through the United States and Canadian Green Building Councils, imposing new standards on the industry for becoming environmentally correct. Download

CBA Insurance Law Subsection- Insurance Brokers Liability Cases (03/02/11) Download

Changing Face of Formal Settlement Offers (09/01/08) Effective July 2, 2008, the rules relating to formal offers to settle in the British Columbia Supreme Court have changed significantly—Rules 37 and 37A of the Rules of Court have been repealed and replaced with the condensed Rule 37B. The new Rule is similar to Rule 37A. The significance of the changes is the removal of Rule 37. Parties no longer have the option of making a Rule 37 offer and taking advantage of its costs provisions.

Charging and Recovering Interest Mark C Stacey and Mitch Dermer (05/08/12) A debt is deferred—and credit extended—when a contract permits a debtor to pay later than the time at which the principal of the debt would otherwise have been due. Parties to commercial transactions usually agree to a rate of interest to be paid by the debtor for outstanding credit. Interest, which accrues on a daily, monthly or yearly basis, is commonly understood to be compensation for the use or retention by one person of a sum of money belonging to another. Download

Charter Rights Now Apply to Administrative Tribunals Michael J Hewitt (09/29/10) The Supreme Court of Canada’s recent decision in R. v. Conway may significantly affect some administrative tribunals in British Columbia by authorizing them to apply the Canadian Charter of Rights and Freedoms to regulatory proceedings. Download

Claim Against Home Inspector Succeeds Jeffrey A Hand (03/01/08) Many prospective purchasers of residential properties retain a home inspector to inspect a property prior to concluding the purchase. A typical contract between the would-be homebuyer and the inspector defines the scope of the latter’s work as conducting a visual inspection only. In many cases, also, it limits the maximum financial liability of the inspector to the amount of the inspection fee. Such was the case in a recent decision involving a home inspector retained in Ontario. Download

Claims Adjusting Reports May be Disclosed Stephen Berezowskyj (09/01/09) Rule 26 of the Supreme Court of British Columbia’s Rules of Court requires disclosure of all documents relating to all matters in issue in a lawsuit that are or have been in a litigating party’s possession, control or power. While all relevant documents must be disclosed, a party does not need to produce documents that are privileged, although it must give reasons for claiming such privilege. Insurers are regularly involved in litigation and some assume, often incorrectly, that their adjusters’ investigation reports are privileged because they were prepared to assist in the defence of a claim. But the reality is that many such reports do not meet the test established by the Supreme Court over time. Download

Class Dismissed John R Singleton Q.C. (04/12/10) In a recent case, Jellema v. American Bullion Minerals Ltd., the Supreme Court of British Columbia refused to certify a shareholder’s oppression claim as a class proceeding. The Court instead held that the claim was already representative in nature and that it was therefore precluded from being certified under the B.C. Class Proceedings Act. Download

Client Alert - Government Announces Significant Reforms to Temporary Foreign Worker Program Melanie Samuels (05/03/13) CLIENT ALERT: The government announced significant reforms to the Temporary Foreign Worker Program (TFWP) – most critically, closing the Accelerated LMO program. The changes have been put in place as an attempt to ensure Canadians truly have the first chance for jobs in light of recent bad press about this topic

Client Alert - Important Reminder - PST HST Transition - Developers-Builders - Vendors of New Housing Mark S Thompson and Alana M Dale-Johnson (12/13/12) Important Reminder: PST/HST Transition: Developers/Builders/Vendors of New Housing Bill 56, the New Housing Transition Tax and Rebate Act and the New Housing Transition Tax and Rebate Regulations (“the Regulations”) impose time sensitive requirements on all Developers, Builders and Vendors of new housing ... Download

CLIENT ALERT- Collecting Money From Debtors RRSP Mark C Stacey and Mitch Dermer (01/24/11) In 2008 the Legislative Assembly of British Columbia passed the Economic Incentive and Stabilization Statutes Amendment Act, a bill intended to protect registered savings plans of debtors from creditors. Such assets may not be completely inaccessible to creditors, however. In a section dealing with what the drafters entitled “Asset Protection” the bill altered the Court Order Enforcement Act. This amendment provided greater protection for debtors’ registered savings—in particular, deferred profit sharing plans (DPSPs), registered retirement income funds (RRIFs) and registered retirement savings plans (RRSPs). Collectively, these are defined as “Registered Plans”. Download

CLIENT ALERT Exclusion Clause Negates Liability for Breach of Bid Contract Derek A Brindle Q.C. and Steven W Lesiuk (11/12/07) On December 3, 2007, the British Columbia Court of Appeal gave judgment in Tercon Contractors Ltd. v. British Columbia (Transportation Highways), [2007], BCCA 592. The decision has important implications for those involved in the procurement of construction services. The Court of Appeal held that a properly drafted liability exclusion clause contained in Request for Proposal (“RFP”) and Tender documents will be effective to exclude or limit liability for claims by tenderers or proponents for damages for breach of bid contractual duties. Download

CLIENT ALERT Honda v Keays Barb Cornish and Veronica S.C. Rossos (07/18/08) The Supreme Court of Canada has recently released a widely anticipated decision in Canadian Employment Law – Honda Canada Inc. v. Keays [2008] SCJ No. 40 (Keays). Living up to expectations, the Keays decision is a landmark in Canadian employment law. Notably, the decision is the latest in what may turn out to be a string of employer-friendly decisions of the Supreme Court (see also Evans v. Teamsters Local Union No. 31; Hydro-Québec v. Syndicat des employé- e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 200). Perhaps signaling a trend, a pendulum shift in the employer’s favour, in employment related litigation? Download

CLIENT ALERT ICBC Wins Another Large Award Against Insurance Fraudsters Michael J Hewitt and Ian Jones (04/03/08) ICBC recently proved yet again that insurance fraud is a risky business that can backfire badly on the fraudsters. ICBC sued many individuals, alleging a scheme carried out during 1998-2001 to defraud ICBC by staging motor vehicle accidents. The case went to trial in the summer of 2007, with 6 defendants participating in the trial and 5 other co-defendants not attending trial or defending themselves. The total of all amounts awarded to ICBC against 10 defendants will exceed $500,000. Download

CLIENT ALERT If Its Brokered It Cant Be Fixed John R Singleton Q.C. (07/16/10) A principal rule of contract law is that a party to a written contract cannot rely on other documents or discussions to vary or alter the terms of the contract. To do so would undermine the confidence of the commercial world in written contracts. There are, however, some specific circumstances when this rule is relaxed and prior dealings between contracting parties may amend, correct or interpret a contract. Download

CLIENT ALERT New Federal Skilled Worker Program Launched in 2013 Melanie Samuels and Carmen Hamilton (01/02/13) Effective May 4, 2013, Citizenship and Immigration Canada (“CIC”) will begin accepting applications under the revised Federal Skilled Worker Program (“FSWP”). It is anticipated that eligible occupations under this program will be announced shortly. Download

CLIENT ALERT- Proper Formation is Fundamental to the Insurance Contract Stephen Berezowskyj and Scott Brearley (01/24/11) Most insurance coverage disputes involve policy language that fails to define clearly the respective rights and obligations of the parties. In a recent case, however, the British Columbia Supreme Court needed to take an additional step—it first had to determine which documents comprised the insuring agreement before it could interpret the policy’s language. This case, Sunburst Skylights Ltd. v. Lloyd’s Underwriters, highlights the importance of establishing that the policy wording is clear and that the insurance contract is properly formed at the outset. Download

CLIENT ALERT Real Estate Development Marketing Act Mark S Thompson (05/12/07) The failure or refusal of several property developers to complete sales of pre-sold condominium units, ostensibly caused by the unprecedented recent increases in construction costs, made front-page news in the summer of 2007. In response, the Financial Institutions Commission (“FICOM”) of British Columbia recently released Policy Statements 14 and 15 to strengthen the disclosure obligations of developers. These Policy Statements became effective on November 1, 2007, and will govern every disclosure statement or amendment filed after that date. They touch on two main areas. Download

CLIENT ALERT Right to Negotiate with Bidders in the Procurement Process John R Singleton Q.C. It is written in stone that during the procurement process for construction projects an owner must not negotiate with bidders from the time tenders have closed until the expiry of the procurement process. To do so would amount to a breach of “Contract A”, that is the bid contract between the Owner and each bidder, and expose the owner to a claim for damages by each of the unsuccessful bidders in such a process. That does not mean the owner can never negotiate with bidders: the right to negotiate can arise in one of two situations. Download

CLIENT ALERT When is a Design Faulty John R Singleton Q.C. and Scott Brearley (03/12/08) The Supreme Court of Canada, in Canadian National Railway Co. v. Royal and SunAlliance Insurance Co. of Canada, 2008 SCC 66, has rendered a long awaited decision on the proper interpretation of the “faulty” design, workmanship or material exclusion in an all-risk or builder’s risk policy of property insurance. Download

Cloud Computing and Privacy from an Employers Perspective Veronica S.C. Rossos (08/15/12) Thanks to more reliable, affordable and ubiquitous broadband access, the Internet has entered a new phase. Its original intent as a sophisticated means of communication has evolved into a vast, interconnected, virtual super-computer—or “the cloud” as it is informally called. Download

Collecting a Judgment Mark C Stacey and Mitch Dermer (09/06/11) You have obtained judgment for damages and/or costs in a legal action and are now facing the next stage in the process—how to collect the money owed. Download

Computers Blackberrys and E-Discovery John R Singleton Q.C. (03/01/08) A current topic of widespread interest in litigation circles in British Columbia — indeed around the globe — is e-discovery, the term given to the process of disclosure of electronically stored documents such as letters, memos, calculations, telephone notes or photographs. They can be contained on a computer’s hard drive, a hand-held device such as a BlackBerry, a DVD, or any other means of digital storage. Until recently, not much attention was paid to the need for producing such documents but the increasing use of electronic communications and storage means that this subject has started to received more attention. Download

Condo Buyers Alert Your Property May Be Ready Early Mark S Thompson and Daniel Barber A recent British Columbia Supreme Court decision has challenged the prevailing view that the Real Estate Development Marketing Act (REDMA) will habitually favour consumers in disputes with property developers. In Bosa Properties (Edgemont) Inc. v. Ban, Mr. Justice Cullen found in favour of the developer after condominium pre-sale buyers refused to complete a purchase-and-sale agreement because of the developer’s alleged breaches of REDMA. Download

Construction Workers and the Employment Standards Act Barb Cornish and Veronica S.C. Rossos (12/01/07) The stated purpose of employment standards legislation, including the British Columbia Employment Standards Act (ESA), is to promote the fair treatment of both employers and employees in the workplace. The ESA ensures minimum standards of compensation and employment conditions. It confers rights on both employees and employers and is usually interpreted broadly when there is a need for such interpretation. Download

Contractors Insurers Owners and Adjusters Wei Kiat Sun (03/01/07) The complex relationship between insurance companies, contractors, adjusters and insured parties at times leads to confusion about the obligations they owe to each other. Most prevalent in the minds of these parties is the obligation of payment, one that occurs often when a contractor is not compensated for its work.

Court Clarifies Unprofessional Conduct for Engineers (10/29/09) The British Columbia Supreme Court has recently clarified the law regulating professions as it applies to a finding of “unprofessional conduct” in contrast to negligence or inadvertence. In Salway v. Association of Professional Engineers and Geoscientists of British Columbia, the Court held that “unprofessional conduct” requires a finding of “some quality of blatancy” or, in other words, “some cavalier disregard” for the consequences. Although the latter requirement has significant ramifications for the professional regulation of engineers, there is a lack of guidance and transparency about its meaning in practice.

Court Enforces Architects Contractual Protections Derek A Brindle Q.C. and Steven W Lesiuk (12/01/07) A recent decision in the Supreme Court of British Columbia in favour of architects is a welcome development for the profession. The judgment in College of New Caledonia v. Kraft Construction Company Ltd. et al gave full effect to the limitation-of-liability provisions in the standard Architectural Institute of British Columbia’s client/architect agreement and prevented third-party claims by builders on a major project. Download

Court SLAPPs Lay Litigant with Special Costs Scott Brearley and Carmen Hamilton (09/02/11) A British Columbia Supreme Court has declared Langley landowner Robin Scory liable for special costs after he sued his neighbour, Jack DeWitte, for statements Mr. DeWitte made during a town hall meeting. Download

Courts in Conflict over Builders Insurance Coverage Jeffrey A Hand (09/01/08) A recent decision from the Ontario Court of Appeal is fuelling the ongoing debate on whether contractors can seek coverage under their commercial general liability (CGL) policies for claims that allege defects in work performed by a subcontractor. Few areas of insurance law have attracted as much legal commentary as the “your work” and “your product” exclusion clauses that are found in most CGL policies and this decision again considers those clauses. Download

Creditors Issues Mark C Stacey (10/29/05) In order to better protect your business and personal assets you need to understand how the commercial litigation process really works. Armed with an appreciation of how the system actually operates you can develop strategies to make your assets unavailable (or less available) to your creditors. Download

Crown Honour Bound to Consult First Nations (03/01/06) During the past several years, the law surrounding First Nations and protection of Aboriginal rights has developed extensively. First there was the 2002 British Columbia Court of Appeal decision in Haida Nation v. British Columbia (Minister of Forests) which placed upon Weyerhaeuser and the Province a duty to consult with the Haida First Nation in renewing a tree farm licence after the Government of British Columbia had failed to do so. (see Letter of the Law, Spring 2002, Summer 2002, Fall 2002 and Summer 2003). Then there was another 2002 case, the Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), in which the same Court decided that the Province had not sufficiently consulted the Taku River Tlingit First Nation when approving the construction of a road through their traditional territory (see Letter of the Law, Spring 2002 and Summer 2003). Download

Damage Clauses Are They Enforceable Stephen Berezowskyj (09/01/07) When two parties have entered into an agreement and set out the terms in writing, the courts will, in most cases, hold the parties to the terms of the written contract. But one kind of contractual clause—liquidated damages—is subject to judicial scrutiny and may be ruled unenforceable. A liquidated damages clause is a term in a contract which sets the amount of damages payable by an offending party to the other if it has breached the agreement. For example, the parties to a construction contract may attempt to fix the damages payable for failing to meet a completion date with a clause like this: “If the Project is not complete on February 15, 2004, the Contractor will pay damages to the Owner in the amount of $200 per day until completion of the Project.” Download

Damages Awarded to Employee Who Refused to Work Out Notice Period Melanie Samuels and Matthew Plummer (05/08/12) The British Columbia Court of Appeal has recently decided that a terminated employee can sue for additional severance pay even though he refused to work during the “inadequate” notice period given by the employer. Employers and employees must now carefully consider this judgment, Giza v. Sechelt School Bus Service Ltd., when considering their options and obligations during a working notice period. Download

Dealing Fairly with Subcontractor Bids John R Singleton Q.C. (09/29/10) In recent years most Letter of the Law articles on the law of tenders have focussed on the contractual rights and duties between owners and general contractors. But a general contractor that submits a tender for a large project will also often be involved in a second, parallel tendering process which involves subcontractors submitting bids to the general contractor for the project. Recent case law in British Columbia has confirmed that many of the obligations that exist between an owner and a general contractor during a tender process also exist between a general contractor and a subcontractor. Download

Deductibility of Management Fees Paid to Related Corporations Mark C Stacey (12/01/09) We have previously written about using holding corporations in conjunction with operating corporations to achieve a higher level of limited liability protection. (See Letter of the Law, Summer 2005.) With this structure, one company is incorporated to operate the main business or profession of the company (Opco) and the other company (Holdco) is incorporated to own the the former’s shares; in other words, Opco becomes a wholly-owned subsidiary of Holdco. In this structure, liability and risk are ordinarily in the hands of the Opco while the assets are usually held in the hands of the Holdco. In more complicated structures, a Holdco may have more than one Opco susbsidiary. Download

Delaying Disclosure Has Consequences for Strata Developers Mark S Thompson and Mitch Dermer (09/02/11) Pre-selling strata units before starting project construction is an accepted part of the development process and is usually required by lenders. Download

Deposits in Real Estate Transactions Mitch Dermer and Mark C Stacey (09/14/12) When a real estate transaction fails to complete because of a default by a purchaser, both the vendor and purchaser have to carefully consider how they approach dealing with the purchaser’s deposit. Typically, if transactions fail to complete because purchasers have not fulfilled their obligations (for example, when the purchaser fails to pay the purchase price on the agreed closing date), vendors may be able to retain purchasers’ deposits. Download

Determining Causation (03/01/09) In recently turning down an application for leave to appeal a decision of the British Columbia Court of Appeal, the Supreme Court of Canada has confirmed that the English law of relative probabilities is not part of the common law of British Columbia. Consequently, in circumstances where there are many potential causes of damage, the onus remains on a plaintiff to prove a defendant was at fault; the courts will not accept a comparison between the relative likelihood of possible causes. Download

Determining Recoverable Costs Ian Jones (09/01/06) The British Columbia Court of Appeal has recently ruled that a successful party in a cost recovery action is only entitled to recover ordinary party-and-party costs from a defendant responsible for contaminating a plaintiff’s property. In 2005, the trial judge in Canadian National Railway Co. v. A.B.C. Recycling Ltd. ruled that A.B.C. Recycling (ABC), a scrap dealer that had inadvertently spilled material onto bare land owned by Canadian National (CN), was liable to pay the reasonable costs of remediation for the site. CN brought the action under the cost recovery provisions of the Waste Management Act, which has subsequently been replaced by the Environmental Management Act. Download

Disability Coverage for Departing Employees Barb Cornish (12/15/11) A typical feature of modern employment contracts is that, after a suitable waiting period, the employee may participate in a group employee benefit plan. Such plans may include short- and long-term disability coverage for which the employee may be required to contribute to the premium payments—usually by way of a paycheque deduction. While this arrangement may be a win-win situation during the course of employment, it can present serious problems when an employee is terminated and in receipt of severance unless an employer is aware of the specific terms of the disability plan. Download

Disclose Out of Court Agreements Immediately Or Else Scott Brearley (09/09/11) As a matter of public policy, courts prefer parties to settle their disputes between themselves rather than before a judge. Download

Disinheriting Beneficiaries Wei Kiat Sun and Mark C Stacey (10/29/08) Estate planning is wrought with difficult choices to be made in the contemplation of one’s own death. One of the difficult choices is reducing the entitlement of a spouse or child in a will. The reasons for this could be varied, some of which may be justifiable. What is important to understand, however, is that affected persons can apply to court to vary a will and make a claim against estate’s assets. As such, careful estate planning must be done to avoid this consequence if you want to disinherit or reduce the entitlement of a beneficiary. Download

Drug-Testing in the Workplace Barb Cornish and Elizabeth (Betsy) Segal (06/01/08) In a recent case, Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Co., the Alberta Court of Appeal decided that persons who use drugs, even casually, can be a safety risk in an already dangerous workplace. Given this finding, the Court went on to declare that random drug-testing is justified in some situations. However, this decision runs counter to Entrop et al. v. Imperial Oil Limited et al., previously considered the leading case on this issue; in this decision, the Ontario Court of Appeal firmly held that, while alcohol- testing and post-incident drug-testing are permissible in some circumstances, random and unannounced drug-testing is not. Download

Duties Owed Between Primary Insurers Excess Insurers and Insureds John R Singleton Q.C. In the context of liability insurance, it is common, indeed advisable, for insured parties to have more than one insurance policy covering the same claim. Layered coverage, as this is called, is an excellent way to manage large risk for lower cost, but it carries its own risk for insurers and the insured. Where the insurance scheme involves a primary and an excess policy, there exists a tripartite relationship of good faith between the two insurers and the insured. Download

Duty to Defend Clarified for Claims-Made Policies Wei Kiat Sun (09/01/06) The duty to defend is a fundamental aspect of liability insurance. The imposition and extent of this duty stem from the terms of the insurance contract or, in specific cases, legislation. In either instance, when defending the insured, an insurer must act in the insured’s best interest at all times. In June 2006, the Supreme Court of Canada provided further insight into this duty to defend.

Editor Note Winter 2012 (12/13/12) It would be an understatement to say, as we get ready to go to press with our last issue of Letter of the Law for 2012, that a pall has fallen over the office with the sudden passing of our dear colleague, Glenn Urquhart, Q.C. The tribute to Glenn found in this issue provides only a small insight into a man who touched many lives professionally and personally.

Editors Note - Fall 2011 (09/12/11) Our cover article canvasses the experience of litigators and parties after a full year under the new Supreme Court Rules. The comprehensive amendments to the Rules followed years of study and consultation and were disparately forecast to be either a sea change in the practice of law or merely old wine in new bottles.

Editors Note - Fall 2012 As we go to press with this issue, the signs of autumn are surely in the air. Summer holidays are a distant memory, the kids have returned to school, and the courts’ unofficial “summer recess” is over. It seems only recently that summer was beginning but now we look ahead to the final quarter of the year and all the promise that it brings. Download

Editors Note - Spring 2012 (05/08/12) Our lead article in this issue of Letter of the Law raises an important, but often overlooked, aspect when one party conducts business with another—the need for a written contract. It is a rare commercial dispute that does not require an examination of what the parties agreed they would do for each other. Without those obligations set out clearly and completely in writing, resolving a legal dispute becomes protracted and unpredictable. The excitement that normally accompanies the time when you enter into a new transaction will surely be overshadowed later when you seek to enforce your contractual rights and you discover that you never recorded your agreement to some crucial terms. To use an informal lawyers’ expression, you will always be better served by taking the time to “paper your deal.”

Editors Note - Spring 2013

Editors Note - Summer 2011 (06/07/11) In our Spring 2011 issue we published an "e-version" of Letter of the Law for the first time. We were elated by its reception from our readers. There was a very high “open rate” and much interest shown in our website’s other features.

Editors Note - Summer 2012 (10/01/12)

Editors Note - Winter 2011 (12/15/11) As we near the end of 2011, this is an opportune time to reflect on what this past year has had to offer to the firm and our readers. Singleton Urquhart celebrated its 25th anniversary this year and we couldn't resist throwing a few parties to celebrate our achievements.

Editors Note- Spring 2011 (04/07/11)

Effect of Co-Insurance Clauses on Claims (09/01/07) Co-insurance clauses appear in many commercial property and business-interruption insurance policies. Their purpose is to penalize an insured who fails to insure property to an amount equal to a specified percentage of the whole value of a property, either as a commercial choice or because of changes in value during a policy term. The wording of such clauses typically states that an insured that fails to declare a true value on the insured property “will only be entitled to recover that portion of any loss that the amount of insurance in force at the time of loss bears to the amount of insurance required to be maintained by this clause.”

Engineers Self-Regulation Bylaw (03/01/08) In the last issue, we described the decision in the case of Tchou-San-Da v. Association of Professional Engineers, heard in British Columbia Supreme Court in 2007. The plaintiff challenged the bylaw of the Association of Professional Engineers and Geoscientists of British Columbia that stipulates that a person may become a professional engineer only if he or she has “4 years’ experience, training and development in engineering or geoscience satisfactory to the Council.” [writer’s emphasis] In December 2007, Mr. Justice Johnston suspended his earlier order striking down Section 11(e)(2) of the bylaw until March 21, 2008. The applicant, Dr. Tchou, also unsuccessfully applied for professional membership retroactive to June 2004. Although moot because of the suspension of the order, the judge found that, as a matter of public interest, Dr. Tchou should not be granted membership in the APEGBC until there is a valid bylaw.

Expediated Litigation Project Mark C Stacey (03/01/06) Rule 68 of the British Columbia Supreme Court’s Rules of Court provides a new expedited procedure for litigating claims commenced in the B.C. Supreme Court Registries at Vancouver, Victoria, Prince George and Nelson. With the exception of family proceedings and class-action law suits, this process applies to all civil actions involving money and/or property commenced in these registries after September 1, 2005, where the value of the claim for damages does not exceed $100,000, exclusive of interest, costs and exemplary damages. Download

Expert Evidence Glenn A Urquhart Q.C. (10/29/05) The rapid advancements made by our society in fields such as science, engineering, medicine and psychology, have created a world in which there is a great deal of specialized knowledge. As a result, it may be difficult to find a business transaction, or for that matter, any form of human interaction for which there will not be some >expert= who possesses an understanding of the issues beyond that held by the general public. Therefore, when these interactions fall into conflict, and recourse is sought through the legal system, the knowledge possessed by these >experts= is often essential to the proper resolution of such matters. Download

Experts and Law Reform Recommendations Robert A Hodgins and Wei Kiat Sun (09/01/07) When disputes arise in construction projects, fire losses or other aspects of personal and business life, technical expertise is often required to assist not only in resolving the matter in question but potentially to provide opinions on any remediation required and the cause of any damage incurred. Experts may become involved at various stages to provide independent and objective opinion evidence to assist the dispute-resolution process or the court. Recent law reform recommendations, if implemented, will have an impact on the role of experts in relation to British Columbia’s courts. Download

Fair Play and Accuracy Essential During Tendering Process Stephen Berezowskyj (11/19/09) The importance of fair dealing and imparting accurate information in the tendering process was highlighted in a recent British Columbia Supreme Court decision, Hub Excavating Ltd. v. Orca Estates Ltd. In this case, the defendant hired a consulting engineer to oversee the tendering process and invite bids for a contract to clear and service the land for a Nanaimo residential subdivision called Rocky Point. Download

False Accusation Leads to Hefty Punitive Damages Scott Brearley (09/01/06) A recent decision of the Ontario Court of Appeal should serve as yet another cautionary note to insurers that allege criminal conduct to support a “thin” denial for indemnity under an insurance policy. In this case, Plester v. Wawanesa Mutual Insurance Co., the Court upheld awards for punitive damages to three plaintiffs that totaled $625,000 and an aggregate award of damages in excess of $1 million.

Family Trusts Roger E Holland (06/01/06) A family trust can be an important tool in tax and estate planning, particularly for business owners. However, it should be noted that a trust is not a legal entity like a corporation but a relationship between a trustee and beneficiaries in respect of property. The nature of a trust is sometimes confused because the Income Tax Act (Canada) (the “Act”) treats a trust relationship as if it were a separate legal entity. Download

Fancy a Franchise Think Before You Sign Roger E Holland and Allison Godey (09/14/12) Franchises, prevalent in the restaurant industry a couple of decades ago, are now common in almost every sector of the service economy, including retail, health and fitness, lodging, and home services. The franchise business relationship offers numerous benefits to those considering becoming a franchisee, including use of an established brand with mass purchasing power, operational support and training, and co-operative marketing strategies. However, before prospective franchisees sign a franchise agreement, they should undertake a detailed review of the franchise opportunity with the points outlined below in mind. Download

Federal Skilled Worker Program To Reopen Melanie Samuels and Carmen Hamilton (12/13/12) Citizenship and Immigration Canada recently announced that the moratorium on the Federal Skilled Worker Program (FSWP) will be lifted in 2013. The federal government wants to adopt a “just-in-time” system that will recruit foreign nationals with the necessary qualifications to fill Canada’s labour market needs. Up to 55,300 individuals, including their spouses and dependants, will be admitted under the revised FSWP next year.

Fire Department Liability Melissa Nagelbach (10/13/08) Many firefighters and municipal insurers believe that actions against fire departments are a relatively new phenomena. In reality, there are hundreds of reported decisions involving lawsuits against fire departments. Currently, there are more successful actions against fire departments than in the past.

Firefighter Liability (09/01/06) Two recent decisions in Quebec, Axa Boréal Assurances Inc. et al. v. Town of Forestville and Federated Co-Operative of Quebec v. Municipality of the Village of St-Damase, highlight the reluctance of Canadian courts to impose liability on fire departments for their acts and omissions in responding to fires. The courts continue to recognize that, because firefighters must make quick decisions when responding to a fire, a simple error of judgment cannot lead to a finding of negligence.

Formal Offers to Settle - A Potent Weapon in the Defence Arsenal Robert A Hodgins and Mitch Dermer (03/29/13) Plaintiffs and defendants in insurance litigation often make use of formal offers to settle in order to put the opposing party at risk with respect to costs awards. A considered and tactical approach to such offers can be particularly effective for the defence. If the judgment awarded to a plaintiff is less than the amount of a defendant’s formal offer to settle the claim, a court may award the defendant a portion of its costs (typically those involving steps taken in the proceeding since the offer to settle was delivered). If a reasonable offer to settle is made, the risk of having to pay the defendant’s legal costs out of an eventual award may help to push a recalcitrant plaintiff towards a settlement.

Fraudulent Claim for Reimbursement Not Protected By Privilege (06/01/06) A recent Supreme Court of British Columbia decision found that an insured person who makes fraudulent representations when claiming for reimbursement is not protected by privilege. In this case, Todoruk v. Trapp, the plaintiff-insured tried to claim privilege over “without prejudice” correspondence between the insurer and the plaintiff’s lawyer and, in addition, solicitor-client privilege over communications between herself and her lawyer.

Glenn When one loses a friend, or a partner, or a mentor, the void that is left is soon filled with fond memories. But when one loses one who was all three, the void seems boundless.

Health Care Cost Recovery Act Becomes Law (03/01/09) In the Fall 2008 issue of Letter of the Law, we discussed Bill 22, the Health Care Cost Recovery Act without knowing when the bill would become operative law in British Columbia. However, on December 9, 2008, the Lieutenant Governor enacted a regulation stipulating that Bill 22 will take effect on April 1, 2009. The Act’s content did not change from its first reading through to the final form that will become law in April.

Hiring Foreign Workers for Your Construction Projects Melanie Samuels and Carmen Hamilton (09/07/11) With more large-scale projects breaking ground, employers in the construction sector are facing labour shortages. In these situations, foreign workers can be the perfect complement to your workforce. Download

Hiring Practices- Avoiding Legal Pitfalls Melanie Samuels (03/11/11) In the search to find the best candidate for a position, employers must be alive to the potential claims and complaints that could be brought against them for their conduct during the hiring process. To avoid costly litigation, it is essential for employers to develop best practices that are consistent with the various legal obligations imposed on them during the selection and hiring of employees. In order to develop these best practices, it is important to understand the legal obligations governing the employment relationship. During the hiring process, employers must pay specific attention to the prohibitions set out in the Human Rights Code. Download

Hiring Who You Want- When You Want Melanie Samuels (01/24/11) One of the objectives of our immigration laws is to encourage the admission of skilled foreign nationals to work in Canada temporarily and then apply for permanent residence. Every year over 150,000 foreign workers are admitted into the Canadian work force to fill a variety of positions. Given this, how do you as a Canadian employer, perhaps frustrated with your inability to hire a Canadian with the skills you need, go about acquiring the expertise of a foreign worker speedily? Fortunately, there are a number of ways. Download

Home Inspector Liable for House Defects Jeffrey A Hand (12/01/09) A British Columbia Supreme Court judgment has recently found a home inspector liable for almost $200,000 in damages for an inadequate pre-purchase inspection of a residential property. The facts behind the case, Salgado v. Toth, are both straightforward and cautionary. The plaintiffs, Manuel Salgado and Nora Calcaneo, were considering the purchase of a North Vancouver property valued at approximately $1,200,000. They made an offer subject to obtaining a satisfactory pre-purchase home inspection for which they retained the services of Imre Toth, a member of the Canadian Association of Home and Property Inspectors. The inspector attended at the house and discussed his findings on site with the plaintiffs and gave them a handwritten report. They paid him a fee of $450 for his services. Download

Homeowners Insurance Policies and Enviromental Remediation (06/24/11) Homeowners who discover that they have a flowerbed polluted by a decades-old underground disintegrating oil tank will probably look in vain to their insurers for help with paying the cost of remediation. Download

How Should a Business Owner Be Paid Roger E Holland (07/15/10) Businesspersons who are both corporate shareholders and managers of their companies can take advantage of tax concessions by carefully planning how they receive their remuneration. An owner/manager who chooses to be paid in the form of salary, bonus or management fees is, in effect, an employee of the business. Receiving a dividend, on the other hand, means an owner/manager is treated as a shareholder of the business. Depending on an individual’s circumstances, both means of payment have benefits but choosing the best method demands careful forethought, planning, and execution because the Canadian Revenue Agency (CRA) can challenge your decision. Download

How the New Rules of Court Will Affect Expert Testimony Derek A Brindle Q.C. and Elizabeth (Betsy) Segal (04/12/10) On July 1, 2010, new Rules of Court (see Letter of the Law, Winter 2009) that are designed to reduce time and money spent on litigation in British Columbia Supreme Court will come into effect. They will provide judges with more authority to control the adversarial process and ensure that the amount of time, expense and process involved in resolving a dispute are proportionate to the dollar amount involved, the importance of the issues in dispute, and the complexity of the proceeding. This authority particularly extends to experts and will affect the firm’s clients in two ways: when cases require expert opinions and when our professional clients (for example, engineers, accountants and physicians) are hired to give expert opinions for other cases. Download

How Your Will Can Be Changed After You Die Roger E Holland (10/29/09) In the last issue of Letter of the Law we discussed how ownership of assets in more than one jurisdiction can complicate the drafting of a will. Another issue to be considered in any estate plan is whether or not your assets are subject to dependent relief legislation such as British Columbia’s Wills Variation Act (WVA). Download

Illness and Injury at the Construction Workplace Barb Cornish (06/08/11) Standards for workplace Occupational Health and Safety (OHS) have been regulated in British Columbia for nearly a hundred years through the Workers Compensation Act and its Regulations. The main aim of OHS legislation is to minimize workplace injury and illness to workers and other persons present on the worksite. Download

Implementing PIPA in the Workplace Barb Cornish (03/01/08) A consideration of employment issues which may arise under the new Personal Information Protection Act, (referred to herein as "PIPA" or the "Act"), is important for a number of reasons. First, most day to day functions of an organization are carried out by employees. To the extent that the Act requires an organization to develop and follow practices and procedures to ensure compliance with the Act, the day to day implementation of those practices and procedures will likely fall to its employees. Education and training of employees in privacy matters is therefore essential in order for an organization to properly meet its responsibilities under the Act. Download

Importing Foreign Workers- The Basics Melanie Samuels (03/11/11) As a general rule, a person who is not a Canadian citizen or a permanent resident must hold a valid work permit in order to work in Canada. Work permits are issued by Citizenship and Immigration Canada (“CIC”). Further, as a general rule, prior to the CIC issuing a work permit, the employer must receive a confirmation of employment from Human Resources and Skills Development Canada (“HRSDC”). This confirmation of employment is referred to as a “Labour Market Opinion” (“LMO”). Foreign workers may also require a temporary resident visa to work in Canada; however, citizens and permanent residents of the U.S. are exempt from this requirement. There are a number of exemptions from the requirements for work permits and confirmations of employment, particularly under the North American Free Trade Agreement (“NAFTA”) (Columbia, Peru, Chile FTAs) and the General Agreement on Trade in Services (“GATS”). These exemptions are so numerous that they create a system that is more often governed by exemptions than by the rule. Download

Independent Dependent or Employee How Would you Describe Your Contractor Barb Cornish and Veronica S.C. Rossos (04/12/10) In 1999 the British Columbia Court of Appeal released a seminal decision in Marbry Distributors Ltd. v. Avrecan International Inc. The Court was asked in this case to determine if Gordon Marbry, a small-business owner and a contractor, was entitled to reason able notice for the termination of his company’s long-standing relationship with Avrecan, a national distributor of sporting goods. Download

Insurance Agents Have Duty to Explain Policy to Clients Jeffrey A Hand (03/29/13) A recent Ontario Superior Court of Justice appeal decision gives insurance agents cause for concern. In this case, Newbigging v. M. Butler Insurance Brokers Ltd., the Court found that an insurance agency was negligent in failing to explain to its client the coverages and exclusions found in an insurance policy. Download

Insurance Reform Finally Arrives in British Columbia Stephen Berezowskyj (10/01/12) In most cases, people are able to enter into a contract with another person or company on terms that have been negotiated and are agreeable to both. However, the ability of parties to set their own terms is somewhat restricted when it comes to an insurance contract. There is a British Columbia statute,the Insurance Act, which requires that specific terms and claims-making processes form part of every insurance contract in the province—except motor vehicle insurance, which has its own dedicated statute. Because they are prescribed by a statute, these terms are referred to as statutory conditions. Download

Insurer Required to Defend Civil Lawsuit Involving Criminal Acts Wei Kiat Sun and John R Singleton Q.C. (10/29/09) In early 2009 the New Brunswick Court of Appeal held that an insurer had a duty to defend an action brought against its insured where the action involved an admitted criminal act, despite exclusions in the insurance policy for criminal acts. The insurer, Optimum Insurance Co., appealed to the Supreme Court of Canada, but leave to appeal was denied. Download

Insurers Beware of Conflicting Interests John R Singleton Q.C. and Scott Brearley (09/01/06) A recent Ontario decision indicates the problems an insurer can face when it finds itself the insurer of both the plaintiff and the defendant in a lawsuit. In Lacombe v. Don Phillips Heating Ltd., Master Beaudoin disallowed an insurer’s attempt to recover monies paid under a policy of insurance against a defendant who was protected by a liability insurance policy issued by that same insurer. Download

Insurers Surveillance and Insureds Privacy Clash (06/01/06) Undertaking surveillance brings with it the very real risk of invading someone’s privacy. Fortunately, the British Columbia Supreme Court has recently provided guidance to insurers undertaking surveillance in Milner v. Manufacturers Life Insurance Company in the context of British Columbia’s Privacy Act which makes it a tort for anyone to violate the privacy of another.

Interpreting Business Interruption Insurance Policies (12/01/08) Purchasing an insurance policy is a useful way to help an individual or corporation reduce its financial risk; however, it is prudent to spend time examining the exact terms of a policy because the details of coverage can vary quite widely. In addition, insurance law is heavily predicated on the wording of each policy so any disputes between insureds and insurers require analyses of the appropriate policy clauses as they relate to the specific facts of a case. Fortunately, the majority of policy wordings are similar in nature and principle so the courts’ past interpretations of similar phraseology are likely to be followed when they describe similar coverages.

Is Bad Work an Accident John R Singleton Q.C. and Scott Brearley (01/24/11) The Supreme Court of Canada’s recent decision in Progressive Homes Ltd. v. Lombard General Insurance Company of Canada represents a major change in the law as it relates to a general liability insurer’s duty to defend a contractor against a claim in which it is alleged that the contractor’s work or materials are defective and have resulted in damage to other components of the project for which the contractor was contractually responsible. Download

Is Breaching an Occupational Health and Safety Law a Crime Barb Cornish (06/01/06) One of the legislative consequences of the 1992 Westray mine disaster was the passage of the Bill C-45 Amendment to the Criminal Code. This Amendment makes it easier for the Crown to lay charges of criminal negligence against individuals within organizations who are alleged to have committed serious infractions of occupational health and safety laws. It also imposes higher penalties on offenders. Most significantly, it provides stronger sanctions for executive negligence, making it harder for corporations to escape prosecution on the grounds that they may not have had the requisite mental state to commit a crime. Download

Joint Tenancies in Estate Planning Roger E Holland and Elizabeth (Betsy) Segal (09/01/07) Two recent Supreme Court of Canada (SCC) decisions released on the same day highlight the need for caution when using joint tenancy as a means of registering assets for estate planning purposes. For most people, estate planning centres on finding ways to ensure as much of an estate as possible goes to the intended beneficiary with minimal loss to provincial probate fees and taxation. Download

Judge Tells Condo Owners You are all in it together Mark C Stacey and Mitch Dermer For several years, various Supreme Court of British Columbia judgments have determined that strata unit owners, subject to an explicit agreement to the contrary, share responsibility for the strata corporation’s property—in particular the cost of maintaining and repairing it. A recent case, Poloway v. Owners, Strata Plan K692, underlined this principle even though some owners benefitted substantially less than others from common repairs and improvements. Download

Keeping Out of Trouble in 2013 John R Singleton Q.C. (03/29/13) Over the course of my career defending construction claims, I have, at least once every year, repeated to various gatherings some very basic lessons on staying out of trouble. It is not that those who have heard the message before are not listening, although that may apply to some. It is more a matter of new individuals entering the industry who have not learned these lessons before. Or, fortunately, they have not yet had the unpleasant experience of getting into trouble and learning the lessons the hard way. So, I thought it might be worthwhile to once again review the basic risk management tools I have found to be most useful and helpful in avoiding, as far as possible, the unpleasant experience of ending up in a courtroom. Download

Knowing and Managing the Risks of Terminating Employees Barb Cornish (03/11/11) Terminating an employment contract, no matter what the reason or whose decision it is, is a difficult and complex task. Generally, termination of the contract takes one of two forms; a voluntary action by the employee such as a resignation or an involuntary conclusion of employment instigated by the employer. No matter how an employment contract is terminated employers must be aware of their legal obligations towards their employee and behave accordingly in order to prevent possible wrongful dismissal claims and other potential financial liability. Download

Lawsuits in Sports - Winning at Any Cost Mark C Stacey (06/01/06) Why would anyone involved in amateur and professional sports organizations look favourably on courts intervening in their affairs? Such intervention can reasonably be seen not only as meddlesome but, particularly in the case of amateur sports organizations, as a ticket for a bullet train to impoverishment and the allocation of resources away from their prime mission—playing and promoting their sport. Often sports-related lawsuits are relatively simple factually, need a quick decision and involve parties without the financial resources to engage in a long contest. Not surprisingly then, the criticisms of the civil court process, that it is slow, ungainly, expensive and so forth, seem to be magnified when a sports-related matter becomes embroiled in the legal system. Download

Leasing Matters - Options to Renew John Fraser (03/29/13) When a landlord and a tenant conclude negotiations to settle the terms of a commercial lease, they may agree that the tenant will be granted an option to renew the initial term of the lease for a further term. A renewal clause will usually include the following language: “The landlord will, at the expiration of the original term, grant to the tenant a lease of the property for a further term of (an agreed number) years.” Download

Lien and Mean Stephen Berezowskyj (07/15/10) British Columbia’s Builders Lien Act establishes rules governing payments on construction projects to meet two primary objectives: to provide a form of security for people involved in the construction of a building and to protect an owner from paying twice when money does not flow from a general contractor to its subcontractors and suppliers. Download

Limitation Period Reform and the Construction Industry John R Singleton Q.C. (11/07/12) British Columbia ’s new Limitation Act , Bill 34 , received royal assent on May 10, 2012 and will come into force in early 2013. For the construction industry, it brings both good, and not-so-good, news. Download

Limitation Periods on First Party Claims (10/29/09) On April 30, 2008, proposed amendments to the British Columbia Insurance Act were presented for first reading. Over one year later, similar amendments to the Alberta Insurance Act have received royal assent while the B.C. amendments were left on the legislative table. It’s uncertain when they will resurface in a new Bill.

Litigation Privilege Part 1 (10/01/08) Pursuant to Rule 26 of the British Columbia Rules of Court, a party to litigation is required to produce all “documents which are or have been in the party’s possession or control relating to any matter in question in the action”. There are two main ways by which a party may resist production of documents: the first is by determining that the document is not relevant (ie. it does not relate to a matter in question in the action); the second is by claiming that the document, although relevant, is privileged. There are various types of privilege, including informant privilege, public interest privilege, parliamentary privilege, spousal privilege, doctor-patient privilege, privilege against self-incrimination, and settlement privilege. Two of the most common types of privilege claimed in litigation are solicitor-client privilege and litigation privilege. This paper will provide an introduction to litigation privilege and in the process, distinguish it from solicitor-client privilege. It will then review a recent Ontario case which applied litigation privilege in the context of a first party insurance claim.

Litigation Privilege Part 2 (10/01/08) In 2008, the British Columbia Supreme Court decided two cases which examined whether investigation reports prepared following a fire loss will be disclosed in subsequent litigation involving subrogated claims. This paper will discuss these two cases: Azuma Foods (Canada) Ltd. v. Versacold Canada Corp. 2008 BCSC 643 (May 21, 2008) and Filek v. Nute, 2008 BCSC 750 (June 12, 2008) and the general principles regarding litigation privilege which can be gleaned from each of them.

Local Government Preparation for 2006 BC Building Code (09/01/06) On December 15, 2006, the 2006 British Columbia Building Code (Building Code) and British Columbia Fire Code (Fire Code) will, like the 2005 national model codes on which they are based, undergo fundamental changes. They will take an objective-based approach that describes the overarching goals intended to be achieved by their provisions. In addition, they will state the functions the building must perform to meet those objectives. This article introduces the new codes and shows how local governments may inadvertently find themselves not complying with the Codes’ provisions.

Minimizing Workplace Accidents and Reducing Employer Liability Barb Cornish (12/15/11) Reviewing a local newspaper on almost any day shows how common workplace accidents are. It is an unfortunate reality that many workplace accidents could have been prevented if the employer or the worker had taken reasonable precautionary steps. However, accidents happen, and when they do employers who can show WorkSafe BC that they acted diligently to prevent workplace accidents and minimize hazards may avoid liability. Download

Misinformed Investors May Sue Professionals Stephen Berezowskyj (10/29/09) Appraisers, engineers, lawyers and other professionals who prepare an opinion or report that is used to help sell securities have good reason to be cautious. If the information they provided is found to be misleading or inaccurate, an investor who has relied on it may make a claim against them. Until recently, this liability has applied mainly to the “primary market” in which investors purchase securities such as shares, options, futures and debentures directly from the issuing company. Download

More Developments in Commercial Leasing Mark S Thompson (03/01/07) Two recent decisions regarding commercial leases in the British Columbia courts have raised interesting new questions about two important leasing considerations: the method of calculating renewal rent under a “fair market value” provision and a tenant’s right to renew even when in default. In the first case, Fire Productions Ltd. v. Lauro, the B.C. Court of Appeal held that the calculation of “fair market rent” to be paid by a tenant under a renewal referred to the fair market rental of the premises, including all tenant’s improvements installed in it. The tenant argued that, since it had paid for the improvements, their value should not be factored into the calculation of “fair market rent”. Download

More on the Law of Tenders John R Singleton Q.C. (06/01/06) A recent case decided by the Alberta Court of Appeal is now bound for the Supreme Court of Canada with the expectation that we will get more clarification of the law of tenders arising out of the Ron Engineering case decided 25 years ago. Download

Navigating Condo Floods Who Pays Stephen Berezowskyj (03/01/08) The complicated scheme of common property, shared ownership and multiple insurance policies can make it difficult to determine who is responsible for the cost of repairing property damage at a condominium. Consider a situation where a small flood in a unit from a malfunctioning washing machine or burst pipe causes damage to the wood floors in the unit as well as the drywall and carpeting in the hallway. Which insurance policy covers the damage and who is responsible for payment of the insurance deductible? These questions were addressed in two recent decisions of the British Columbia Supreme Court, Strata Plan KA 1019 v. Keiran 2007 BCSC 727 and Mari v. Strata Plan LMS 2835 2007 BCSC 740. Download

Negligent Investigation Michael J Hewitt (08/01/08) The legal environment for Canadian police officers was changed forever when the Supreme Court of Canada recently decided that police may be sued by a criminal suspect for damages caused by a negligent police investigation. Download

New Building Codes Change Legal Standards (03/01/06) Last fall the federal government released the 2005 National Building Code (NBC) as well as updated National Fire and Plumbing Codes, all three applying to buildings under federal jurisdiction. The NBC reportedly makes almost 1300 technical changes that account for new technology and better address safety and health concerns.

New Client Identification and Verification Rules for BC Law Firms John R Singleton Q.C. and Mark C Stacey (10/29/08) As of December 31, 2008 new Law Society of British Columbia rules require that lawyers obtain certain information about their clients before providing legal services. These rules have been adopted by Law Societies throughout Canada and are intended to reduce the risk of lawyers’ trust accounts being used for illicit purposes. Download

New Developments in Joint and Several Liability Melissa Nagelbach (06/01/08) In a recent judgment, British Columbia (Attorney General) v. Insurance Corporation of British Columbia, the Supreme Court of Canada explored the relationship between two important concepts in the law of torts — vicarious liability and joint-and several liability — in the context of British Columbia’s Police Act and Negligence Act. Download

New Guidelines for Structural Design of Homes and Other Small Buildings (12/01/08) In June 2008, the Council of the Association of Professional Engineers and Geoscientists of British Columbia (APEGBC) adopted new guidelines for the structural design of homes and other small buildings. The Guidelines for Professional Structural Engineering Services for Part 9 Buildings (Guidelines) apply to structures with a maximum height of three storeys and floor space of up to 600 square metres. Such buildings are used for residential, business, or light- to medium-hazard industrial purposes.

New Temporary Foreign Worker Regulations Melanie Samuels (03/21/11) Employers will risk being publicly “blacklisted” by Citizenship and Immigration Canada (CIC) if they are found to be in breach of the new Immigration and Refugee Protection Regulations coming into effect this April. These new rules are a response to the rising concern that temporary foreign workers are being treated unfairly by some employers.

No Insurance for Faulty Workmanship or Materials Scott Brearley and John R Singleton Q.C. (10/29/09) In its recent decision, Progressive Homes Ltd. v. Lombard General Insurance Company, the British Columbia Court of Appeal has endorsed the conclusion reached in three earlier B.C. Supreme Court decisions: general liability insurance does not extend to cover a general contractor’s liability for the cost of remedying faulty workmanship, material or finished product for which the general contractor was contractually responsible. It is the first endorsement by the B.C. Court of Appeal of three earlier Supreme Court decisions: Privest (1991); Swagger (2005); and GCAN (2007). The decision is another brick in the wall guarding against claims which would otherwise turn general liability policies into performance bonds. Download

No Right to Lawyers for Litigants (09/01/07) In 1993, the British Columbia legislature enacted the Social Services Tax Amendment Act (No. 2), putting a 7% tax on the provision of legal services in the province. This tax brought to the forefront the age-old debate of whether a person requires legal representation in order to preserve their constitutional right to gain access to the justice process. The Act was challenged in court by Dugald Christie, a lawyer who specialized in representing low-income people; he argued that the majority of his clients could ill afford his assistance prior to the tax and had even less ability to do so after it was imposed. Consequently, he maintained, they were unable to have access to the justice system with the aid of a lawyer. Download

Non Competition Clauses and an Employees Duty to Mitigate Barb Cornish (03/21/11) The principle of mitigation in employment law is clear—an employee, dismissed without cause, must take reasonable steps to secure comparable alternative employment to minimize the loss resulting from the termination. The principle of mitigation minimizes an employer’s loss arising from a breach of an employment contract and can be used to reduce damage awards for the wrongful dismissal of an employee. Download

Not All Truck Insurance Is the Same Robert A Hodgins (07/16/10) In October 2006 a tractor owned by Squamish-based Triack Resources Ltd. was involved in a single vehicle accident. It was hauling logs but the Insurance Corporation of British Columbia denied coverage for the company’s claims. ICBC contended that the tractor was insured for delivering and dumping materials, the premium for which activity was half that for hauling logs. Download

One Tee Three Fore (03/01/08) The British Columbia Court of Appeal has recently ruled that, when golfing, it is not necessary to call “fore” unless a golfer knows the ball is on a dangerous trajectory. The infelicitous circumstances that gave rise to the case in question, Matharu v. Nam, occurred when the plaintiff, while teeing off on the 10th hole at Quilchena Golf and Country Club in Richmond, was struck in the eye by the defendant’s ball. The defendant, Mr. Nam, had been shooting in the opposite direction from the 18th fairway which ran alongside the 10th. Mr. Nam attempted to clear some trees to approach the green but his ball was too low, struck the trees that separated the 10th and 18th holes and ricocheted into the unfortunate Mr. Matharu. Download

Ontario Appeals Court Upholds 17 Million Personal Injury Award (12/01/08) The Ontario Court of Appeal has upheld one of the largest personal injury awards in Canadian history. The case, Sandhu (Litigation Guardian of) v. Wellington Place Apartments, affirms the principle stated by the same Court in an earlier case that “the verdict of a civil jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.”

Ontario Court Considers Faulty Work Exclusion Jeffrey A Hand (06/01/06) In the Fall 2005 issue of Letter of the Law, we described the ramifications of a British Columbia Supreme Court decision, Swagger Construction v. ING Insurance et al., in which the judge held that a general contractor could not seek coverage under its comprehensive general liability policy (CGL) for claims made against the contractor for the cost of correcting its own faulty work. The Court reasoned that the cost of correcting faulty workmanship was not a claim that met the definition of “property damage” found in many CGL policies. In other words, the general insuring agreement found at the outset of most CGL policies did not contemplate granting coverage for fixing the contractor’s own work. The Court found it unnecessary to consider any of the exclusion clauses in the policy, holding instead that such claims were outside the ambit of the insuring agreement. Download

Oppression Remedies In The Employment Relationship Mark C Stacey and Veronica S.C. Rossos (05/08/12) Closely-held private corporations may, from time to time, issue shares to a new shareholder for a variety of reasons including raising capital, offering incentives to talented employees and planning for succession. The new shareholder may be an employee who will continue his or her employment with the company or someone who may be offered employment with the company. In either case the new arrangement means the employee takes on a dual role of employee and shareholder. Download

Overbuilt Quarry Avoids Environmental Assessment (06/07/11) British Columbia, like most jurisdictions in Canada, has adopted an environmental assessment system, intended to determine whether or not the untoward side effects of an industrial or commercial project on the environment justify creating it. An environmental assessment must balance ecological and economic factors so that destruction of habitat and wildlife is minimized. Download

Owners Apply to Have Leaky Condo Lawsuit Certified as Class Action John R Singleton Q.C. and Stephen Berezowskyj (03/01/07) Singleton Urquhart LLP are counsel for the plaintiffs in an action that seeks to have Canada Mortgage and Housing Corporation (CMHC) compensate the thousands of homeowners in British Columbia who have been afflicted by the punitive cost of repairing damage to their homes caused by water ingress and the subsequent rotting of their homes’ structures. Download

Pesky Tenant - Terminating Commercial Leases Alana M Dale-Johnson and Carmen Hamilton (12/15/11) Terminating a lease when a tenant is in default can be tricky. The course of action a landlord takes to terminate a lease may depend on a number of factors, including the terms of the lease and the desired remedy. Below, we outline some considerations a landlord should bear in mind when choosing to end a commercial tenancy agreement. Download

Police Liability for Negligent Investigations Michael J Hewitt (12/01/07) The legal environment for policing in Canada recently changed forever when the Supreme Court of Canada decided that police may be sued by a criminal suspect for damages caused by a negligent investigation. To the surprise of many, the Court’s October decision in Hill v. Hamilton Wentworth Regional Police et al. acknowledged that police owe a legal duty to a suspect to conduct a reasonable investigation. Download

Possession Is Not Nine Tenths of the Law Michael J Hewitt (03/21/11) A recent British Columbia Court of Appeal decision, Insurance Corporation of British Columbia v. Palma, will result in a new trial for a defendant who in an earlier trial had been found not civilly liable for conspiracy to convert stolen vehicles. The ruling identifies the legal risks people face if they participate in transactions involving property to which they are not legally entitled. The decision also sheds light on the law of conversion—a category of civil liability that has broad practical implications for the public, but is generally not well understood. Download

Potential Conflicts of Interest Under the Morgage Brokers Act Derek A Brindle Q.C. and Wei Kiat Sun (12/01/07) In British Columbia, the mortgage brokerage industry is regulated by the Mortgage Brokers Act, Regulations made pursuant to that Act, and certain other regulations that the Registrar of Mortgage Brokers is empowered to make. The Registrar’s limits of authority under this legislative scheme were recently decided upon by the Supreme Court of British Columbia in its decision in the Registrar of Mortgage Brokers v. Financial Services Tribunal. The main question before the Court revolved around Section 17.3 of the Act, which requires mortgage brokers to provide borrowers with statements disclosing “any direct or indirect interest the mortgage broker or any associate or related party of the mortgage broker has or may acquire in the transaction.” Download

Privacy and Employees Personal Information Veronica S.C. Rossos (12/15/11) The Personal Information Protection Act (“PIPA” or the “Act”) came into force on January 1, 2004 and regulates the collection, use and disclosure of personal information by private sector organizations in British Columbia. PIPA’s introduction saw organizations racing to bring themselves into compliance with the Act. While this initial flurry has since abated, it remains incumbent on all private sector organizations in B.C. to develop and follow policies that ensure compliance with the Act. Download

Privacy Disclosure Trumps Rules of Civil Procedure Barb Cornish and Wei Kiat Sun (03/01/06) This case has important ramifications for employers and their obligations to disclose personal information to employees. In this matter, a former employee commenced a wrongful dismissal suit and sought broad disclosure of his personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA). Ultimately, a complaint was filed with the Privacy Commissioner of Canada. Download

Privacy Rights in Insurance Investigations Ian Jones (03/01/08) The Freedom of Information and Protection of Privacy Act (FOIPPA) restricts the ability of the Insurance Corporation of British Columbia (and other public bodies) from using personal information in its database for the purposes of investigating and settling claims. All insurers are subject to the similar provisions of the Protection of Privacy Act (PIPA), although the references below are solely to FOIPPA. Download

Proposals for Change in the BC Insurance Act Wei Kiat Sun (06/01/08) The B.C. Insurance Act has not been greatly modified since the 1960s and, not surprisingly, it has now been targeted as a statute in need of reform. While no specific amendments or Bills have been tabled, the government, in March of 2007, circulated a discussion paper on the possible developments to elicit discourse on the possible reforms to the Insurance Act. Legislation to implement reforms might take place as early as the Spring of 2008. This paper seeks to highlight some of the problems identified in the Insurance Act and identifies the key recommended reforms. Download

Proposed Limitation Act Changes Steven W Lesiuk (03/21/11) In September 2010, the Government of British Columbia released its White Paper on Limitation Act Reform: Finding the Balance, which describes proposed amendments to B.C.’s Limitation Act with the goal of striking a better balance between preserving access to justice and ensuring certainty and finality for legal actions. Download

Proposed New Rules for Civil Procedure Wei Kiat Sun (12/01/08) In July 2007, the British Columbia Justice Review Task Force (“JRTF”) released a concept draft for new rules that could govern civil procedure in the British Columbia Supreme Court. This initiative, commenced in March 2002, is part of an on-going process to make the justice system more accessible, affordable and efficient. The 400 pages of proposals have not yet been implemented as the government is seeking public input regarding the implications of these recommendations. These proposed rules will drastically change the landscape of civil litigation and will have major ramifications for the practice of law, dispute resolution and civil litigation generally for years to come.

Protecting Employer Confidentiality and Property in Employment Contracts Roger E Holland and Barb Cornish (06/01/07) This is the second of two articles exploring the terms of a good employment contract. In the last issue, we discussed the elements to be considered when drafting or negotiating any employment contract. In this continuation, we discuss other clauses barring the solicitation of clients or competition with an employer by an employee after his or her dismissal as well as provisions concerning intellectual property and employee confidentiality. Download

Public Private Partnerships A Paradigm Shift John R Singleton Q.C. (02/05/10) In many parts of the world, public private partnerships (P3’s) are fast becoming the preferred way for building and delivering major infrastructure projects. P3 has been a process for project delivery in the United Kingdom under the guidance of Partnerships UK (PUK) for more than a decade: more than 900 P3 projects worth over UK£70 billion have been procured in that time. Closer to home, Partnerships British Columbia (PBC) has been responsible for managing over 20 P3 projects. More are on the way and PBC is assisting other provinces with managing this process. Download

Quirky Issues in the Employment Standards Act Elizabeth (Betsy) Segal and Veronica S.C. Rossos (03/01/08) The stated purpose of employment standards legislation, including the British Columbia Employment Standards Act (ESA), is to promote the fair treatment of both employers and employees in the workplace. Among its goals, the ESA aims to ensure minimum standards of compensation and employment conditions for employees. The ESA confers rights on both employees and employers and, as a result will usually be interpreted broadly when the need for such interpretation arises.

Recent Decision Limits Liability for Social Hosts John R Singleton Q.C. (06/01/06) On May 5, 2006, in Childs v. Desormeaux, the Supreme Court of Canada pronounced that, as a general rule, a social host is not legally liable for injuries to third parties caused by the actions of their guests once they leave the host’s premises. The ruling closes the door for Zoe Childs, who was 18 years old when a drunk driver smashed into the car she was riding in on January 1, 1999. Download

Recent Decisions Expand Liability for Commercial Hosts Stephen Berezowskyj (03/01/09) It is now well-settled law that a duty of care exists between commercial hosts which serve alcohol and their patrons who consume it. This duty of care requires hosts to take steps to ensure that patrons who consume alcohol do not injure themselves or other patrons. The legal duty originates both from provincial legislation and in common law. Download

Recent Developments in the Law of Negligence (10/29/08) Adjusters and insurers investigating and considering an insured’s legal liability for compensatory damages under a Commercial General Liability policy will be interested in a recent decision of the Supreme Court of Canada, Resurfice Corp v Hanke, 2007 SCC 7, which provides clarity on the causation test in the law of negligence. The judgment is notable for its brevity, as well as being delivered by the Chief Justice on behalf of a unanimous full (nine-member) Court. In particular, the reasons for judgment discuss the general principles of negligence in a clear and succinct manner, without traversing the extensive judicial and academic commentary in this area of the law. Download

Recent Ontario Decision Another Big Employer Win Barb Cornish (09/29/10) In a recently decided case, Piresferreira v. Ayotte, the Ontario Court of Appeal has followed the trend set in 2008 by the Supreme Court of Canada in Honda Canada Inc. v. Keays of limiting employer obligations. In this case, the Appeal Court concluded that the tort of negligent infliction of mental suffering is not available in the employment context. However, a 2006 Supreme Court of British Columbia case, Sulz v. Attorney General et al., came to a different conclusion, rendering the law in this area uncertain. Download

Recovering Health Care Costs (09/01/08) In the most recent session of the British Columbia Legislature, the Health Minister introduced Bill 22: the Health Care Costs Recovery Act; it has passed two readings and is now in Committee stage where it will be examined in greater detail prior to last reading. Assuming the Bill passes third reading and receives Royal Assent, it will become law. In its current form, Bill 22 applies to a person injured (“injured person” or “beneficiary”) by the actions of a “wrongdoer”, defined as someone whose negligent acts contribute to a beneficiary’s injury or death. A beneficiary is never a wrongdoer, even if they are contributorily negligent. The proposed law will not apply to persons injured at work (who are covered by Workers Compensation), to injuries arising from a motor vehicle accident caused by an ICBC-insured wrongdoer, or an injury caused by tobacco use.

Recovering the Legal Costs of Debt Collection Actions Mark C Stacey and Mitch Dermer (12/13/12) In assessing whether to commence or continue collection proceedings to recover an outstanding judgment debt, creditors should consider what proportion of their legal fees and expenses can be recovered from the debtor. Depending on which court awarded the judgment and the conduct of the debtor during the collection action, a creditor can often recover a significant portion of the legal costs (which may form part of the judgment) that they incurred in collecting the debt. Download

Rectifying Shareholder Grievances Derivative Actions Mark C Stacey (12/01/07) In the Summer 2007 issue of Letter of the Law, we outlined two statutory remedies that offer shareholders the ability to protect their interests in a company — the “oppression remedy” and a “derivative action.” In that article we discussed the oppression remedy, which relates to correcting conduct within a company that is “oppressive” or “unfairly prejudicial” to shareholders in their personal capacity as shareholders. The second remedy — and the subject of this article — is a derivative action, which is, by contrast, used to address wrongs directed at the company itself by external forces. Download

Rectifying Shareholder Grievances Oppressions Remedies Mark C Stacey (06/01/07) As a fundamental principle, company law treats companies and their shareholders as separate legal identities, creating two consequences—limited liability and limited rights. Shareholders take advantage of limited liability through incorporation while accepting limitations on their rights to personally seek redress for a wrong done to their company. Download

Registering Commercial Leases on Title Matthew Plummer and Mark S Thompson (09/14/12) When negotiating the terms of a commercial lease where the term may exceed three years, landlords and tenants should be aware of Section 29(2) of the Land Title Act and consider the potential consequences of registration or non-registration. Download

Reminder to Insurers Your Claims Adjusting Reports May be Disclosed Stephen Berezowskyj (09/23/09) Our Rules of Court require disclosure of all documents relating to every matter in issue in the lawsuit that are or have been in the party’s possession, control or power. While all relevant documents must be disclosed, a party does not need to produce documents that are privileged. Insurers are regularly involved in litigation and some assume, often incorrectly, that their adjusters’ investigation reports are privileged because they were prepared to assist in the defence of a claim. But the reality is that many such reports do not meet the test established by the Courts. Download

Residential Developments and Landslide Risks John R Singleton Q.C. and Stephen Berezowskyj (06/01/06) As British Columbia municipalities continue to expand, developers are being compelled to construct housing on marginal land where there are greater risks for themselves, subsequent land owners, subsequent occupants, builders, designers and property managers. In recent years, there have been land slippage failures in residential developments in Vernon, Kamloops, Penticton, Nanaimo, North Vancouver and elsewhere in the province. In each instance, there has been significant property damage and, in some cases, bodily injury or death. Download

Resolving Construction Disputes ADR Process Glenn A Urquhart Q.C. (10/29/09) The purpose of my comments is to discuss with you this afternoon a method of resolving construction disputes that does not involve the courts. Since approximately 1990 more and more construction cases have been turned over to the alternate dispute resolution (ADR) process. As a result there are almost no construction cases proceeding through the courts in British Columbia. I understand the same process is occurring in many other provinces in Canada. This change is so for a number of factors. Download

Resolving Construction Disputes Without the Courtroom Jeffrey A Hand (12/13/12) The construction industry thrives on innovation, always bringing the latest design ideas, construction techniques and building products to the marketplace. Unsurprisingly, it has also pioneered new ways for resolving disputes, both on and off building sites. For some time now, companies involved in all aspects of construction have embraced mediation and arbitration as effective means for settling disputes, including payment issues, design and construction claims, warranty matters, and delay claims—to name but a few. Many standard-form construction contracts require parties to first attempt mediation to resolve disputes arising during and after projects. If mediation fails, they must proceed to mandatory arbitration. Resorting to the courtroom may not even be permitted. Download

Resolving Foreign-Interest Business Disputes in China I John R Singleton Q.C. (06/01/07) The People’s Republic of China (PRC) is likely to continue as the largest growing economy in the world for decades. To repeat an often heard phrase: “China is open for business”—and business knows it. It’s not only the fast food industry that has arrived in the PRC—builders, designers, the telecommunications industry, raw materials suppliers and an endless line of others are already doing business there. And with the increased economic activity comes the inevitable: an increase in the number of business disputes. In turn this has created a quandary for some companies—how does one resolve a business dispute in the PRC? Download

Resolving Foreign-Interest Business Disputes in the Peoples Republic of China II John R Singleton Q.C. (06/01/07) In the last issue of Letter of the Law we introduced the topic of resolving foreign interest business disputes in the People’s Republic of China (PRC), concluding that the most viable form for resolution currently in PRC is arbitration, particularly under the rules of the Chinese International Economic and Trade Arbitration Commission (CIETAC). In this second part, we examine some of the pros and cons of the CIETAC system. At first glance, CIETAC is like many other international commercial arbitration centres around the world, whether in Sweden, the United States, Canada or elsewhere. It has sophisticated Rules and a panel of 1,000 arbitrators, including some foreign nationals. Headquartered in Beijing, CIETAC handled 981 cases in 2006, 442 of which involved foreign interests doing business with PRC entities. Download

Responding to Your Employees Riotous Behaviour Outside the Workplace Barb Cornish (12/15/11) As technology continues to advance, the line between our work and personal lives is becoming increasingly blurred. Smartphones, tablet computers, laptop computers, digital cameras and social networking sites give many of us instant and constant access to both our workplaces and our co-workers. Download

Restrictive Covenants How Do Companies Protect Themselves from Departing Employees Veronica S.C. Rossos (03/01/08) Traditionally the law provides a company with two means of protection from departing employees: contract and the common law. Recently decisions of the Courts in various jurisdictions have called into question the utility of either; begging the question how is an employer to protect itself from the departing employee? However, before embarking on a discussion of how an employer is to protect itself from a departing employee, it may be best to first address why an employer would need such protection.

Right to Negotiate with Bidders in the Procurement Process John R Singleton Q.C. It is written in stone that during the procurement process for construction projects an owner must not negotiate with bidders from the time tenders have closed until the expiry of the procurement process. To do so would amount to a breach of “Contract A”, that is the bid contract between the Owner and each bidder, and expose the owner to a claim for damages by each of the unsuccessful bidders in such a process. That does not mean the owner can never negotiate with bidders: the right to negotiate can arise in one of two situations. Download

Securities Act Amendments Add to Auditors Regulatory Burden Michael J Hewitt (10/29/09) The 2008 amendments to the Securities Act, outlined on the opposite page, are the latest in a series of substantive regulatory changes that have eroded legal protections for auditors created by Supreme Court of Canada decisions during the 1980s and 1990s. Download

Seminar Slides- Construction Projects From Start to Finish Managing Your Risks Stephen Berezowskyj , Scott Brearley , Robert A Hodgins and John R Singleton Q.C. (06/21/11) Presentation slides from Construction Projects, From Start to Finish: Managing Your Risks Seminar on June 21, 2011 at Segal Building SFU. Presented by Singleton Urquhart's Construction Law Practice Group. Download

Simple Socializing May Have Complex Perils Scott Brearley (03/21/11) Employers often fund social events for their employees in the hopes of fostering goodwill and camaraderie amongst workers. But, if an accident or injury occurs at one of these gatherings, questions of fault, liability and insurance coverage can quickly change the tone from conviviality to legal negotiating. Download

Slippery Slopes Lead to Liability Stephen Berezowskyj (09/29/10) With our population growing and city planners promoting increased urban density, developers are being encouraged to construct housing on marginal lands. In some cases, this can increase the potential for land slippage. Over the last few years, there have been significant landslides in residential areas all over British Columbia. They have occurred in North Vancouver, Qualicum Beach on Vancouver Island and in many towns in the interior, such as Vernon, Kamloops, Penticton, Oliver and, most recently, Pemberton. Download

Slippery Slopes Lead to Liability- Test Stephen Berezowskyj Download

Some Peculiarities of Strata Property Insurance (02/05/10) For several reasons, insuring a strata property is considerably different from insuring a house. The owner of a single-family dwelling, for example, is responsible for insuring the entire property. But within a condominium building, the responsibility is divided between the strata corporation and the individual owners of each unit. Under the Strata Property Act, the corporation insures the common property owned and used by all strata owners as well as certain interests of each strata owner. Strata owners are responsible for insuring other exposures, including liability, fire and theft, within their individual properties.

Special Costs Misbehaving and Paying for It Steven W Lesiuk and Mitch Dermer (09/29/10) Among the other spoils of legal battle, cost awards are usually conferred by the decision-maker — whether a judge or quasi-judicial tribunal — on the victor in a legal dispute. British Columbia Provincial Small Claims Courts, however, rarely grant costs to the winning side. Arbitrators may also have discretion to award special costs, depending on the governing arbitration agreement. Download

Speedy Law at the Olympic Games (03/01/06) By the time you are reading this, there will undoubtedly have been at least one very public expulsion of an athlete from the Winter Olympics in Turin, Italy. It will have almost certainly been for a drug-related offence—in the parlance of international sports, “doping.”

Strata Corporations Must Now Obtain Depreciation Reports Mark S Thompson and Susan Do (03/29/13) Pursuant to Section 94 of the Strata Property Act (SPA), a strata corporation, unless exempted, is now required to obtain a depreciation report to assess the long-term maintenance and renewal of the common assets of the strata corporation. This stipulation applies to both existing strata corporations, unless they are exempted, and to real estate developers building strata properties. The report must be obtained by December 13, 2013 and updated every three years thereafter. Interestingly, there are no penalties for non-compliance. Download

Stretched but Not Snapped A More Stringent Approach to Causation in Motor Vehicle Cases (10/01/08) The Supreme Court of Canada has recently adopted a more stringent standard for establishing auto insurance coverage in tort cases that requires plaintiffs to prove their injuries were directly caused by the use or operation of a motor vehicle. In two companion decisions, Citadel General Assurance Co. v. Vytlingam (Vytlingam) and Lumbermens Mutual Casualty Co. v. Herbison (Herbison), the Supreme Court unanimously held that, even if the use of a motor vehicle was an ordinary and well-known activity, the plaintiff must still prove an unbroken chain of causation linking the conduct of the tortfeasor as a motorist to the injuries claimed. It was not enough to merely show that a motor vehicle contributed to injuries by enabling the presence of a motorist. Drawing a distinction between the context of no-fault and at-fault legislation, the Supreme Court rehashed its commitment to the principle that insurance policies be interpreted to effect the reasonable expectations of the parties.

Subcontractors Claims Against Owners Disallowed Robert A Hodgins (09/01/08) Courts have often stated that the categories of negligence are never closed and, over the years, the Supreme Court of Canada (SCC) has expanded the tort liability exposure of contractors, design consultants and others in the construction industry. However, no Canadian jurisprudence has as yet recognized a duty of care between an owner and subcontractors. A recent SCC decision, Design Services Ltd. v. Canada, might have but, in the end, did not. Download

Supreme Court of Canada Holds Liability Exclusion in Tender Documents Ineffective Derek A Brindle Q.C. (04/12/10) On February 12, 2010, the Supreme Court of Canada rendered its much anticipated decision in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), a judgment that could have far-reaching implications for public procurement in the future. The central issue in the appeal was whether the Province of British Columbia could, by including in its tender documents a broad “exclusion of liability” clause, immunize itself from claims by an unsuccessful tenderer. Download

Technology and Privacy Preparing for Life in the Clouds Veronica S.C. Rossos (06/06/12) The Internet has entered a new phase, thanks to more reliable, affordable and ubiquitous broadband access. The Internet is no longer a simple tool for communication. Rather, it has become a platform for computing – a vast, interconnected, virtual, supercomputer. This new reality has many different names including: web 2.0, Software as a Service, the Grid and Cloud Computing.

The Dos and Donts of Employee Hiring and Firing Barb Cornish and Scott Brearley (03/01/06) The Canadian workplace is a highly regulated, complex legal environment. Litigation involving workplace disputes, of one sort or another, has increased dramatically in the last few years. Employers need to understand and manage the risks associated with the modern Canadian work force in order to avoid costly and time consuming claims and litigation. Download

The Employment Standards- Vacation Time and Pay Barb Cornish (01/24/11) Employers and managers often struggle with the distinction between an employee’s entitlement to, on the one hand, annual vacation time and, on the other, annual vacation pay. Understanding these two entitlements can be compounded when issues such as parental leave and commissioned employees are added to the calculation. Fortunately the first step in moving beyond the confusion is straight forward — understanding that the two entitlements, while sounding similar, are wholly separate obligations on an employer. Download

The End of the Line for Specific Performance Mark S Thompson and Mitch Dermer (12/13/12) Historically, vendors of land who breached their contracts could face an action by purchasers asking courts for specific performance (an order from a court enforcing the purchase and sale agreement) or, in the alternative, damages. The remedy of specific performance rests on the concept that real estate is, by its very nature, specific and unique—consequently, an award of damages may not properly compensate a disappointed purchaser. Over time, in recognition of the increasing utility of land as an investment commodity rather than for personal use and amenity, the remedy of specific performance has become limited to situations where damages are not an adequate compensation for the loss of a unique opportunity. Download

The Innocent Co-Insured Veronica S.C. Rossos (11/01/08) Certain policies of homeowners insurance provide coverage for loss or damage to property subject to specific exclusions for losses caused by the "willful or criminal" acts of the insured. While such exclusions will be clear on the face of the policy, the consequences and implications of the exclusion, in so far as coverage goes, may be far broader than the named insured(s) or their insurance brokers may have contemplated. As analysis of the policy language, including the exclusion itself and the applicable definitions should serve to clarify the consequences of any such exclusion in the face of a co-insured’s willful, deliberate or criminal act. An analysis of the specific policy language should clarify, to some extent, whether the willful, criminal or intentional act of a co-insured will risk coverage for all insureds contemplated by the policy at risk.

The Law of Tenders - Fair Today Gone Tomorrow John R Singleton Q.C. (12/13/12) The law of tendering in the nation’s construction industry was turned on its ear with the 1981 Supreme Court of Canada decision, R. v. Ron Engineering and Construction (Eastern) Ltd. It gave life to the now infamous Contract A/Contract B analysis (since widely adopted) for which the Court’s underlying rationale was the need to protect the integrity of the bidding system. Each of the parties to a bid contract, the party inviting tenders and the party responding, would be bound by the terms and conditions of Contract A, the bid contract, as expressed in the Invitation to Tender, or as implied as a matter of law. Download

The Real Estate Development Marketing Act and Shifting Realities Mark S Thompson (12/01/09) The boom and subsequent decline of British Columbia’s real estate markets over the last few years—combined with the banks’ insistence on pre-sales of new strata units as a precondition for construction financing—has led to a plethora of issues and questions for developers and purchasers alike. Due to the inherent uncertainty involved in pre-sales, the B.C. Legislature enacted the Real Estate Development Marketing Act (REDMA) to govern pre-sale contracts, which are agreements for the purchase of a new unit and typically entered into before construction starts and subdivision is completed. They are contingent, therefore, on several factors, including successful registration of the subdivision plan and raising of title.

The Rules Have Changed But Litigation Remains the Same Stephen Berezowskyj and Daniel Barber (09/07/11) On July 1, 2010, the new Supreme Court Civil Rules that govern the procedure for litigation in British Columbia came into effect. Download

The Supreme Court of Canada Explains Privilege during Litigation John R Singleton Q.C. (09/01/06) Clients—and third parties retained during litigation—should be aware that documents created by them during the course of litigation may no longer be protected from disclosure to the world at large once the litigation is over. Consequently, clients and third parties should act with caution and discretion when creating documents for litigation. Download

The Tender Process Protecting Yourself from Claim Risk Stephen Berezowskyj (02/12/09) The tendering process typically engages a number of parties, each of whom invests considerable time and money in the competition for a construction contract. Most of the rules of the competition are set out in the tender package. But the process also involves implied obligations and duties of fairness which do not appear in the documents and are not easily defined. For these reasons, the tendering process is one of the most contentious and highly-litigated aspects of the construction process. Equally, it represents a high-risk area for the consultants who are retained to guide owners through this complicated process. Download

Thinking of Contracting in the the United States John R Singleton Q.C. (06/24/11) As the economic recovery in the United States continues, one might expect accelerated activity in the construction industry, particularly in the public sector. Download

Thinking of Retiring John R Singleton Q.C. (10/29/09) Pleasant thoughts that come to mind when contemplating retirement run along the lines of relaxation, financial freedom, travel. However, if you have spent your working years in the construction industry, these thoughts can soon turn to their opposites—stress, financial liability, back to work—unless your plans for escape from the workforce to retirement properly account for your future risks. And that means having an effective risk management plan. Download

Thoughtless and Careless Neighbours John R Singleton Q.C. (06/01/07) Property owners have much to be concerned about when it comes to maintenance or management of their own property: inadequate or improper maintenance can result in systemic problems in any building, whether residential, office or commercial. One need look no further than the “leaky condo” debacle to find many examples where lack of maintenance in multi-family dwellings has resulted in water ingress and extraordinarily expensive repair bills, which are often just the beginning of the problem. Equally unpleasant and painful financial experiences can ensue if the condominium owners seek to recover these costs from those alleged to be responsible for the systemic problems that led to the water penetration in the first place. Download

Time Frames of Employment Benefits Scott Brearley Do all employment benefits automatically end when someone ceases to be an employee? If the benefit is a stock option, shareholding or other type of benefit involving ownership, the terms of the contract an employer makes with its employee will determine the fate of that benefit when the employment relationship comes to an end. (See Letter of the Law, Spring 2012) Download

Transborder Pollution Leads to Jurisdictional Tussle (06/01/07) Legislation that came into force on May 4 last year was swiftly applied in Lloyd’s Underwriters v. Cominco Ltd. et al., a case that came before the British Columbia Supreme Court in 2006 and before the Court of Appeal in April 2007. Although the case concerns a B.C. company potentially liable for cleanup and remediation costs in Washington State under United States federal environmental legislation, the Court applied the Court Jurisdiction and Proceedings Transfer Act (CJPTA) to determine if it had jurisdiction in the matter. Almost concurrently, the same parties were in a Washington District court in Eastern Washington seeking to have the same issues tried there. Download

Uncertainty Surrounding Asset Protection Mark S Thompson and Scott Brearley (01/24/11) The refusal of the Supreme Court of Canada earlier this year to grant leave to appeal a decision from the British Columbia Court of Appeal may make it more difficult in the future for individuals and businesses to plan their affairs and protect their assets. Download

Unintended Legal Consequences of Confidentiality Agreements John Fraser The following scenario is not atypical in the business world. Assume you own a successful business which you decide to expand by seeking to purchase a competitor (which we’ll designate the Target). Initial discussions take place with the principal of the Target and the two of you agree to a non-binding letter of intent that sets out the basic business terms of the proposed transaction. Before calling your lawyer and incurring the cost of preparing a formal contract of purchase and sale, you request that the Target send you its financial statements and customer lists so that you can confirm that the verbal representations regarding the business of the Target are true. Download

US at SU - Fall 2012 Our lawyers have been selected in Canada and internationally by Who’s Who Legal. The selection process involves comprehensive research with clients and peers by the publication. Download

Us at SU - Spring 2012

US at SU - Spring 2013 (03/29/13)

US at SU - Winter 2011

US at SU - Winter 2012 John Singleton, Q.C. is again presenting the Construction Law Course at the University of British Columbia, a course that he founded in 1993. He is being assisted by Jeffrey Hand and Robert Hodgins. Daniel Barber was elected as a member-at-large to the executive of the Vancouver Bar Association. The Association is a non-profit organization serving the lawyers in the city of Vancouver and beyond. It is dedicated to advancing and protecting the interests of Vancouver lawyers and fostering collegiality among the Bar in Vancouver. Veronica Rossos has been invited to speak at the Canadian Real Estate Regulators Conference on May 30, 2013 in Calgary. She will be speaking about cloud computing and privacy issues. Derek Brindle, Q.C. and Allison Godey gave a presentation on “Corrupt Practices in the Construction Industry” at the Pacific and Business Law Institute's conference, Construction Contracts: How to Prevent Costly Mistakes, held on December 11, 2012.

US at SU- Fall 2011 (06/24/11)

US at SU- Summer 2011 (06/24/11)

Vehicle Lessors Vicariously Liable Elizabeth (Betsy) Segal (03/01/08) The Supreme Court of Canada recently affirmed the British Columbia Court of Appeal (BCCA) decision in Yeung (Guardian ad litem of) v. Au, which held a vehicle leasing company liable for $5.8 million for an accident involving one of its leased cars. The decision may expose leasing companies to vicarious liability for damages arising from accidents involving not just vehicles but other leased equipment.

Waiving Your Claim Goodbye Stephen Berezowskyj and Carmen Hamilton (06/24/11) Anyone who has ever gone rafting, rented a bicycle, or registered for a sporting activity has probably been required to sign a long document filled with fine print and confusing legal jargon. Download

We Welcome Two New Lawyers (05/08/12) Two new lawyers have recently joined the firm—John Fraser as Associate Counsel and Susan Do as Associate. Both are practising in the general area of Business Law.

What Can Make a Fire Department Negligent Melissa Nagelbach (12/01/08) Determining that a fire department’s actions or an investigator’s investigation was negligent is straightforward. The areas of contention are of a like kind to those in any other negligence suit. Did the fire department or investigator owe a duty of care to the plaintiff? If so, did they observe a particular standard of care while fulfilling their duty? Did they breach the duty of care by not observing the required standard of care? If there was such a breach, did it cause damage or loss to the plaintiff? Was such damage so far removed from the purview of the fire department or investigator that they were not responsible?

What Constitutes an Employment Contract Roger E Holland (03/01/07) As with any type of contract, an employment agreement does not necessarily have to be set out in written form to be given effect at law. A simple “you’re hired” suffices as an agreement to employ someone, along with any verbal instructions that follow. And, while company policy manuals, employment letters or other correspondence may not appear to be contracts at first glance, they often can and do form part of a contractual arrangement between an employer and employee. Download

When Is a Contract a Contract John R Singleton Q.C. (05/08/12) Download

WHEN IS A SECOND MEDICAL EXAMINATION NEEDED Robert A Hodgins and Mitch Dermer (12/15/11) Insurers and defence counsel should consider a recent British Columbia Supreme Court judgment when instructing experts with respect to independent medical examinations (IMEs). If there is a substantial problem with one IME, this decision, De Sousa v. Bradaric and Borthwick,, makes the threshold for obtaining a second one more onerous. Download

When You Should Write Two or More Wills Roger E Holland (10/29/08) In the last issue of Letter of the Law, we discussed the role and responsibility of executors in administering an estate, an undertaking that can become even more complicated when the laws of more than one jurisdiction apply. This usually happens in one of two cases: when a deceased person resided or was domiciled in British Columbia but owned assets outside the province or when he or she lived outside British Columbia but owned assets here. Download

Wills Melissa Nagelbach and Roger E Holland (10/29/07) When a person dies without a will, their estate passes according to legislation called the Estate Administration Act under the guidance of a court appointed administrator. Although this system does work, many people wish to have greater control over the direction of their assets and the management of their estate and thus prepare a will. Wills provide certainty not only for the person making the will, but also for family members and friends. Download

Wills Estates and Succession Act Changes Coming Mark S Thompson and Alana M Dale-Johnson (07/16/10) In September 2009, the Wills, Estates and Succession Act (WESA) passed third reading and is expected to come into effect in 2011. It repeals and brings together the current Estate Administration Act, Probate Recognition Act, Wills Act, and Wills Variation Act; it also amends dozens of other provincial statutes. Download

Witnesses In Vinculis - Insurers And Sworn Affidavits Scott Brearley (05/08/12) Insurers must inquire into claims, often by using investigators and counsel. In British Columbia, some insurers’ policies contain the right to conduct examinations under oath (in the case of public insurers, the right is legislated). However, taking sworn statements or affidavits which have the effect of binding the conscience of a witness before trial with an oath can negatively impact ensuing litigation. Download

Workers Compensation and Workplace Stress Veronica S.C. Rossos (03/29/13) Stress in the workplace is commonplace but when is it a compensable injury? Can employers be held liable for their employees’ mental stress? These are questions that are increasingly being addressed by workers’ compensation boards and the courts in Canada. One such case, Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, was recently decided by the British Columbia Court of Appeal. Download

You can teach an old lawyer new rules Stephen Berezowskyj (12/01/09) On July 1, 2010, while the rest of Canada celebrates 143 years of Confederation, judges, lawyers and litigants in British Columbia will be bracing for the launch of the new Rules of Court. The new Rules, which govern the conduct of civil litigation, are designed to promote better access to the courts by reducing the complexity and increasingly high costs of litigation. Download


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