Once liability (or legal responsibility) for a motor vehicle accident has been determined the remaining question is the quantum or amount of damages to be awarded.  There are 5 different heads of damages that must be considered in arriving at the final amount: past wage loss, future wage loss, non-pecuniary damages, costs of future care and special damages.

The legal principle that governs the entire process of awarding damages is that, insofar as is possible, the plaintiff should be put in the position he or she would have been in but for the injuries caused by the defendant’s negligence.

Past wage loss deals with the victim’s lost earnings from the accident up until the point of trial.  This amount is determined through employment records, medical records and any other relevant materials.

Future wage loss is a much more involved process.  Once again employment records and medical records will be relevant.  In addition, high school records, university records and your family history will be reviewed.  The Judge must consider how long you likely would have been able to work as well as how much money you likely would have earned but for the incident.  The Court must consider variables such as the likelihood of your early death, economic downturns and likelihood of another debilitating injury.

Non-pecuniary damages compensate a plaintiff for their pain, suffering, and loss of enjoyment of life up to the date of the trial and in the future. The essential principle derived from the jurisprudence is that an award for non-pecuniary damages must be fair and reasonable to both parties and should be measured by the adverse impact of the particular injuries on the individual plaintiff.  This valuation is completely up to the discretion of the Court. Awards vary a great deal depending on the type of injury and the type of person that was injured.

Costs of future care are awarded on the basis of what is reasonably necessary to promote the mental and physical health of the plaintiff having regard to the medical evidence.  To determine the appropriate award the Court must be satisfied that there is a medical justification for claims of future care and the claims must be reasonable.

Special damages cover a person’s reasonable out-of-pocket expenses they incurred as a result of an accident.  The expenses claimed must be limited to those expenses which are restorative rather than putting the injured person in a better position than before the accident.

In British Columbia, all of the above heads of damages are added together and paid out to the injured party as a lump sum.

Change of Business Name

Approximately 30 years ago, you started a masonry business.  You decided to call this company “Smith’s Masonry Services”.  Business was good so you started to look at adding different business lines.  You found that there was a need for masonry in the assembly of fireplaces.  Things further evolve and you notice that there is a demand for the installation of the fireplaces.  As years pass on your firm is capable of installing fireplaces.  Business is booming, in fact there are so many requests for the installation of fireplaces, that your original masonry business is almost inactive.  Because of this change in business your company’s name may be somewhat misleading.

How does a business change their Company’s name?

In British Columbia, there are two steps.  The first step is to request a name approval.  This step is to ensure the public is not confused or misled by similar corporate names.  New corporate names must be approved by the Corporate Registry.  Before making application for the name approval, one should conduct an online search of the registered BC companies and organizations database on BC Online to ensure that new business name is not already taken.

The second step is file a change of corporate name.  In order to submit the application through Corporate Online you will need your incorporation number, company password and Customer Profile ID.  If you do not have a Customer Profile ID, you need to create one on Corporate Online before you can file the change of the company name.  Also, companies must be in good standing with all filings up-to-date before altering the company name.

As per the Government of British Columbia Website, these are the 3 most common reasons why names are not approved:

  1. Name is too similar to an existing corporate name within the same industry.
  2. Research was not conducted before applying to make sure the name wasn’t already in use.
  3. Name lacks a distinctive and/or descriptive element.

 

The Civil Resolution Tribunal is designed to provide affordable access to justice in BC.  As stated in the Supreme Court of Canada in Hryniak v Mauldin, 2014 SCC 7, “Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial”.

The Civil Resolution Tribunal has attempted to combat the access to justice problem by making the process cheaper, expedited, easier to understand and more navigable.  One of the more interesting facets of the Tribunal is that it is Canada’s first online tribunal.  The entire process from initiating a claim, negotiations and the final decision of the tribunal is done online.

The Tribunal started off as a forum for strata property disputes but has expanded into facilitating small claims disputes of $5,000.00 and less.  Interestingly, the Tribunal is going to expand further into Motor Vehicle Accidents and certain Societies Act and Cooperative Associations Act disputes.  Motor Vehicle Accident disputes are expected to begin being heard by the Tribunal in April of 2019 but there is no specified date yet for the Tribunal to start hearing issues related to disputes under the Societies Act and Cooperative Associations Act.  It is likely that the Tribunal will only hear matters related to Motor Vehicle Accidents that are fairly simple in nature with damages capped at around $50,000.00.

The Tribunal contemplates active participation by those who will actually end up being effected by the dispute, namely the plaintiff and defendant.  The Tribunal will only make a decision for the parties if the parties are unable to agree to a solution on their own.  The Tribunal is available 24 hours a day, seven days a week from a computer or mobile device that has an internet connection.

The Tribunal’s online dispute resolving program is ground-breaking, being the first of its kind in Canada.  It is likely that the jurisdiction of this Tribunal will continue to expand within BC once the public gains more confidence in the process.

While it is important to register any family law agreement with the Court to ensure that the agreement has the force of a Court Order, failing to file the agreement will not necessarily be detrimental to having the Court enforce the terms of the agreement as if the agreement was an Order of the Court.

In Smith v. Smith, 2018 BCSC 641, lawyers for the claimant and respondent were close to coming to an agreement between their clients.  Court proceedings were adjourned generally while the lawyers worked out the terms of the agreement, and both the claimant and respondent signed the draft copy of the Order several months later.  Unfortunately for the parties, the registry refused to file the agreement since it was “not in the proper form and it failed to address all of the property claims in the notice of family claim” (para. 13).

The claimant later attempted to have the written agreement declared a final Order by the Court.  The respondent sought to have the Order declared an interim Order, which would have given the Court the ability to vary the Order without a material change in the circumstances of the respondent, on the basis that the respondent thought the Order was an interim Order and that the respondent claimed she did not know the Order limited spousal support to a period of seven years.

The Honourable Madam Justice Murray wrote the following:

[20]        The order is entitled “Consent Order”. It is drafted in order form with the Supreme Court style of cause. It states clearly that it is before a Judge of the Court and that it is by consent. There is a line for signature by the Court. The respondent had counsel at the time of the settlement discussions and for approximately six weeks following during which terms were finalised. She does not dispute being involved via phone in the settlement discussions at the courthouse. She was clearly part of the negotiations after that session as she asked for and received material concessions from the claimant. After she released her counsel, she personally delivered to the claimant’s lawyer the order signed by her. She was undoubtedly aware that it was going to be filed with the Court.

[21]        The order is clear and easy to read.  The only reasonable inference to draw from the fact that she sought changes and eventually signed it, is that she read it.  The spousal support clause clearly specifies that support was to be for a period of seven years.

[22]        The order dealt with all outstanding matters between the parties, not just the matters that were to be reviewed by the Master that day.  That is inconsistent with it being an interim order.  There is nothing in the document that indicates that it is interim.

[23]        The respondent points to the passage that the parties must exchange their income tax information annually as an indication that this agreement was intended to be interim.  I disagree.  That is a standard clause in family orders.  The fact that an order is final does not preclude a party from bringing an application to vary if there is a material change in circumstance.

[24]        The respondent further argues that this is an agreement as opposed to an order.  Again it is entitled “Consent Order”, is drafted in order form with a line for a Judge’s signature and was intended to be filed in court.  The only rational conclusion is that the parties intended it to be an order of the court in full and final resolution of all matters in issue between them.

[25]        Accordingly, I find that the document in issue is a final order.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

 

When parties separate, one party may seek spousal support between when the issue of spousal support is first heard and the point at which the court makes its final decision (for example, when the Court makes a divorce order or makes final orders with respect to property division and support). This is known as “interim spousal support.”

The recent case of Piva v. Piva, 2018 BCSC 670 [“Piva”], illustrates the factors a Court will consider when deciding whether to award interim spousal support.

In Piva, the claimant was 50 years old and the respondent was 55 years old. The parties were married for 28 years.

The claimant applied for interim spousal support.

Master R. W. McDiarmid began the analysis using the legal test under section 15.2(4) of the Divorce Act:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Master McDiarmid further stated that the Court must also consider the following factors:

  1. the applicant’s needs and the respondent’s ability to pay assume greater significance;
  2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
  3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
  4. The courts should not unduly emphasize any one of the statutory considerations above others;
  5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
  6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
  7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out;
  8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

In Piva, the Respondent disclosed $183,688.45 in income for 2017 and the Master imputed income of $40,000.00 to the Claimant. The Master calculated the range of spousal support which could be paid by the Respondent to the Claimant based on the parties’ respective incomes and awarded the Claimant interim spousal support after considering the following fact:

  • the Claimant had exclusive occupancy of the former matrimonial home, and once the appropriate spousal support order was made, the Claimant would be responsible for making all of the payments associated with the house;
  • the Respondent’s Financial Statement set out expenditures of approximately $6,350.00 toward savings and debt payments. As well, $4,460.00 monthly was allocated toward income taxes which would be reduced substantially by a spousal support order [because spousal support is tax deductible to the payor and is taxable income to the recipient]; and
  • the Claimant remained in the family home with no mortgage payments to be made.

The Master awarded interim spousal support payable by the respondent to the claimant in the amount of $5,000.00 per month.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

A Will that contains unclear provisions may be found to be invalid or the particular gifts that are the subject of the unclear provisions may fail. People attempting to write their own Wills may be unaware that the Will is unclear. However, there may be more than one possible interpretation that the Will-maker did not anticipate which may make the provision seem unclear.

If a gift is unclear, a Court may be asked to interpret the Will to determine the Will-maker’s true intention. This will result in significant legal expenses for the Estate and the Court may not be able to determine the Will-maker’s true intent. An unclear Will may result in an intestacy (i.e., when a person dies without having a Will) which, in turn, could result in an unintended person receiving a gift or benefit by virtue of the default provisions of the British Columbia Wills, Estate, and Succession Act (WESA).

“Fixing” Ambiguities in a Will

Just because a Will contains an unclear provision, does not necessarily mean that the Will will be found to be invalid or that the gift containing the unclear provision must fail. Under WESA, there are provisions that can cure certain errors contained in a Will. However, these provisions cannot fix a Will where the Will-maker did not have the required mental capacity or the Will-maker was unduly influenced when making the Will.

Under WESA, a Will that is not in a typically acceptable form may be found to be valid if the Court determines that the Will represents the intentions of the deceased person. For example, the Court may consider whether a journal/diary entry represents the testamentary intention of the deceased.

Alternatively, a Court may also be able to fix an error in a Will if it appears that there is uncertainty because of a simple mistake made by the Will-maker or the person who drafted the Will or because the person who drafted the Will misunderstood the Will-maker’s intention. In these circumstances, the court may choose to look to evidence of the Will-maker’s intention to determine what his or her true intention was regarding the unclear provision. An application to fix an error contained in a Will must generally be made within 180 days of probate being granted.

A Court action is started in Small Claims Court when the Plaintiff files a Notice of Claim with the Court Registry. When a Small Claim Court action is concluded by settlement, the Plaintiff will file a Notice of Withdrawal. When a Notice of Withdrawal is filed, it stops the action and any associated Court processes. However, if this document was filed by mistake, is it possible to make a Court application to allow you to continue with the Court action?

Small Claims Court, unlike the Supreme Court, only has the ability to provide orders explicitly allowed in the Small Claims Court Rules. Upon review of the Rules, it is not clear where the Court would get ability to reinstate an action after a Notice of Withdrawal has been filed.

Rule 8(4) of the Small Claims Court Rules states:

Withdrawal of claim or other filed document

(4)A party may withdraw a claim, counterclaim, reply or third party notice at any time by

 (a) filing a copy of the notice of withdrawal at the registry, and

 (b) promptly serving the notice on all the parties who were served with the claim, counterclaim, reply or third party notice.

Nothing in this rule would allow a Judge in Provincial Court to reinstate a claim after a Notice of Withdrawal has been filed. This rule only discusses the withdrawal of a “claim, counterclaim, reply, or third party notice”. Accordingly, there is a question as to whether the Provincial Court has the ability to reinstate an action once a Notice of Withdrawal is filed.

However, the Courts have determined that they do have the ability to withdraw a Notice of Withdrawal in the proper circumstances. In Pacific Centre Ltd. V. Micro Base Development et al, 49 BCLR (2d) 218, 43 CPC (2d) 203 the Court determined that it is within the Small Claim’s Court’s own jurisdiction to address this procedure. The Court in Wilson & ANJ Corp. v. Regoci & Global Securities, 2009 BCPC 170 cited Pacific Centre Ltd. and noted the need for a good reason to allow the withdrawal of the Notice of Withdrawal. Generally this reason appears to focus on a genuine mistake made on behalf of one of the parties. The Court in Wilson found that “in the absence of the establishment of any reason for the filing the notice of discontinuance, such as inadvertence, mistake or misapprehension, or of ‘other grounds’ which would be of a compelling nature, the discretion should not be exercised to set aside a notice of discontinuance” (Wilson, para 7). That is, it is not enough for the appellant to merely have a change of heart (Wilson, para 7).

It appears that a Court will recognize a true mistake when allowing Plaintiffs to continue with a Court action. However, given the need to prove a mistake (or something similar), it is necessary to be careful when filing a Notice of Withdrawal.

In BC, “spouses” are entitled to certain rights upon separation including support and a shared interest in “family property”.  Two people will qualify as spouses in BC if they live in a “marriage-like relationship” for a period of two years.

Whether or not two people qualify as one another’s “spouses” under the Family Law Act requires a legal analysis.  In the recent case of CFM v. GLM, 2018 BCSC 815 [CFM], Justice Baird adopted Dey v. Blackett, 2018 BCSC 244 for the principles used to determine whether a couple is in a marriage-like relationship:

[192]     The determination of whether a relationship was marriage-like requires a “holistic approach”, in which all of the relevant factors are considered and weighed, but none of them are treated as being determinative of the question: Austin v. Goerz, 2007 BCCA 586 at paras. 58 and 62.

[193]     While a “checklist” approach to this question is not appropriate, it can still be helpful during the analysis to consider the presence or absence of commonly-accepted “indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”:  Weber v. Leclerc, 2015 BCCA 492 at para. 25. A frequently-cited authority has identified these indicators as including “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple”: M. v. H., [1999] 2 S.C.R. 3 at para. 59, citing Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at para. 16 (Ont. Dist. Ct.).

[194]     While financial dependence was at one time considered an essential aspect of a marriage-like relationship, this is no longer so: Austin at paras. 55-56.

[195]     The intentions of the parties, particularly whether they saw the relationship as being “of a lengthy, indeterminate duration”, will be important to the determination of whether the relationship was marriage-like. However, evidence of their intentions must be tested against objective evidence of their lifestyle and interactions, which will provide direct guidance on the nature of the relationship: Weber, at paras. 23, 24. In other words, “subjective or conscious intentions may be overtaken by conduct such that whilst a person living with another might not say he or she was living in a marriage-like relationship, the reality is that the relationship has become such”: Takacs v. Gallo (1998), 48 B.C.L.R. (3d) 265 (C.A.) leave to appeal to SCC ref’d, [1998] S.C.C.A. No. 238, at para. 53.

[196]     In weighing the various factors, it is also an error to give undue emphasis to the future plans of a couple, in contrast to the current realities of their respective situations: Takacs at para. 58.

Applying these principles, Justice Baird found the Claimant and Respondent did not qualify as spouses because:

  • The parties’ relationship was a tumultuous liaison frequently interrupted by sometimes lengthy hiatuses brought on by illicit infidelities and betrayals that were divisive and hurtful;
  • The parties did not live together for a period of two years;
  • The Respondent had a “leading female” in his life who was not the Claimant in the two years prior to the parties’ final separation.

Noteworthy is that the Claimant sought that certain corporations in which the Respondent had an interest be considered “family property” in which the Claimant could also claim an interest.  As a result of the decision, the Claimant was incapable of advancing her claim against the property of the Respondent.

If you would like to book an appointment with any of our family law lawyers, namely Kathleen Sugiyama, Christopher Murphy or Nathan Seaward, please contact Heath Law LLP at 250-753-2202.

Consequences of Faulty Estate Planning

Wills are intricate instruments where details matter.  The preparation of a Will requires care and diligence.  If improper care is taken, certain gifts may not be received by the person or entity that the Will-maker intended.  This article will canvas two areas where the gifts in a Will may not be distributed in accordance with the Will-makers wishes.

A gift could be deemed ineffective for many reasons including the beneficiary of a gift pre-deceasing the Will-maker or if the beneficiary mistakenly signs the Will as a witness to the Will.  British Columbia has enacted legislation found in s. 46 of the Wills Estates and Succession Act (“WESA”) to deal with these ineffective gifts.  A Will can provide for alternative beneficiaries to the gift, in which case, if the gift was deemed ineffective for any reason, the gift would go to that alternative beneficiary.  There is also a special rule if the ineffective gift was made to a special class of person.  The special class under the WESA consists of siblings of the Will-maker or descendants of the Will-maker.  In that scenario, the ineffective gift would go to that special class member’s descendants.  If there are no alternative beneficiaries mentioned and the gift is not to a special class of person, the ineffective gift will go to the surviving residuary beneficiaries in proportion to their interests.

Ademption is another consideration for the Will-maker.  Ademption arises when a “specific gift” is no longer part of the Will-makers estate or has been converted into something else.  This often happens when a Will-maker has gifted a car (or some other specific piece of property) to someone many years earlier but before the death of the Will-maker the car is sold to someone other than the person designated under the Will.  In that scenario, the gift under the Will would fail.  However, as stated in the seminal British Columbia authority on ademption, Trebett v Arlotti-Wood, 2004 BCCA 556, ademption will not occur where the specific property in question has been changed “in name or form only” so that it “exists as substantially the same thing, although in a different shape.”  What is considered a change “in name or form only” has been a litigious matter where answers vary considerably.

In regards to ademption, if the specific gift was sold by a nominee (attorney or representative) before the death of the Will-maker, the beneficiary of the gift is entitled to receive from the Will-maker’s estate an amount equivalent to the proceeds of the gift as if the will had contained a specific gift to the beneficiary of that amount.  In other words, the beneficiary will not receive the exact gift stipulated in the Will but will receive the cash proceeds of the sale of that specific gift.  This scenario is governed by s. 48 of the WESA.

“It has often been said that the other bank of the river Styx is lined with the shades of dissatisfied testators waiting to receive their judicial parsonages from those who have misconstrued their wills”  

BC Limitations Act

In 2013 the new BC Limitation Act (“BCLA”) came into force.  There are many differences between the BCLA and the old BC Limitation Act.  Two of these differences are in relation to s. 14 and s. 15 of the BCLA.

S.14 of the BCLA relates to the limitation period for demand obligations. S. 14 states: “A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made.” In other words, the countdown period for the limitation period does not start until the borrower under an agreement fails to pay an obligation once a demand has been made.  The old BC limitation act had a six year limitation period for demand obligations in which the countdown period for the limitation period would start from the date the initial obligation arose.

S.15 of the BCLA relates to the limitation period for realizing or redeeming security.  S. 15 states: “A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises.”  This is a marked difference from the old BC Limitation Act which had a six year limitation period for bringing action on collateral that was not in the secured party’s possession.  Lenders in secured transactions need to be aware of this striking change.

These two provisions of the BCLA were judicially scrutinized for the first time since their enactment in the recent British Columbia Court of Appeal decision Leatherman v 0969708 BC Ltd., 2018 BCCA 33.  This case is illustrative of the wariness lenders should have in regards to the new BCLA.

In Leatherman a mortgage was granted to secure a debt.  Under the mortgage the loan was payable on demand, with payments of interest to be paid annually.  The Mortgagor failed to make a required interest payment on Oct 31, 2013.  This is effectively the date of default.  No further action was taken by the mortgagees until Nov, 2015.  At that time correspondence was exchanged between the parties in relation to the debt and its repayment.  A demand was made by the mortgagees on Nov 9, 2016.

The Court stated “This Mortgage, like most mortgages, includes both a covenant to pay and security for the debt. The covenant to pay the principal, considered on its face, and alone, is a demand obligation. With respect to it, s. 14 applies; that is, it is not payable until demand. The obligation to pay interest, however, is not a demand obligation because it was payable without demand on October 31 of each year. The Mortgage also provides that the property mortgaged is security for the debt. With respect to security for the debt, s. 15 of the Act applies. The right to realize on the security arises upon discovery of that right.”  In other words, the mortgage became enforceable as of the date of default, Oct 31, 2013, and would be statute barred two years later.  However, the mortgagor was still liable for his personal covenant as two years has not elapsed since demand for payment was made.

Going forward, where there is a default on a mortgage a lender must foreclose within two years of that default even if the loan, which is supported by the mortgage, is payable on demand, and no demand has been made.

The limitation period could be extended beyond two years after default where a mortgagor acknowledges liability.  This is governed by s.24 of the BCLA.  S. 24(1)(a) states “If, before the expiry of either of the limitation periods that, under this Act, apply to a claim, a person acknowledges liability in respect of the claim, the claim must not be considered to have been discovered on any day earlier than the day on which the acknowledgement is made.”

Acknowledgement under s .24 includes a debtor’s performance of an obligation under or in respect of a security agreement (s. 24(8)).  In other words, for a conventional mortgage where there are specified payments, when the mortgagor under a mortgage makes a payment after their initial default this will postpone the date of discovery to the date on which the mortgagor made the after default payment.