Is This Defamation? Understanding Defamation Law In BC

,

Defamation Law in BC: Libel, Slander & Online Reviews

Have you or your business suffered a loss as a result of someone else’s words? Conversely, is someone alleging that you have caused them harm because you shared a review online? It can be hard to tell whether a person has a legitimate claim for defamation under the law. This article provides basic information about defamation law in BC.

The basic elements of defamation in BC

There are three things which must be proved for a defamation claim to be successful. As set out in the case of Grant v. Torstar Corp., 2009 SCC 61, (1) there must be a defamatory statement, (2) the statement must refer to the plaintiff, (3) the statement must be communicated to a third party. Once these three things have been proved the person being accused of defamation must put forward a defence to escape liability. If it has been proved that a defamatory statement referring to the plaintiff was made to a third party, it is presumed that the statement was meant to cause harm to the reputation of the plaintiff.

Libel vs. slander 

Libel and slander both fall under defamation. The difference between libel and slander is the method by which the statement is communicated to third parties. Libel is typically recorded in some form and shared. Under BC’s Libel and Slander Act, RSBC 1996, c 263 defamatory words in a broadcast are deemed to be published and to constitute libel. Social media posts also fall under libel. Slander is shared with third parties in passing, typically through verbal statements. It is easier to prove damages for libel than for slander. This is because slander generally requires proof that a loss has resulted from the defamatory statement, whereas when libel is made out there is a presumption that the statement was meant to cause harm.

Key defences

There are a number of defences against a defamation claim. If the defendant can prove that the allegedly defamatory statement is true, this is the defence of truth or justification. There is also the fair comment defence, which can be found under s.6.1 of the Libel and Slander Act. The fair comment defence protects people expressing an opinion. The defence of qualified privilege applies where a person has a duty to communicate the allegedly defamatory statement to a third party. Finally, responsible communication on matters of public interest is a defence for making allegedly defamatory statements as well.

Online reviews and social media specifically 

The question then becomes whether a successful defamation claim can be brought against a person for posting reviews online and, specifically, on social media. There is tension between genuine consumer complaints and opinions, and defamatory claims. Courts are cautious about preventing legitimate criticism. Online reviews and posts to social media are often protected under the defence of fair comment (as described above). That being said, in the case of Level One Construction Ltd. v Burnham, 2018 BCSC 1354 it was explained that the fair comment defence can be defeated, if it is shown that the person who made the statement acted maliciously.

BC’s anti-SLAPP law 

The Protection of Public Participation Act allows for quicker dismissal of Strategic Lawsuits Against Public Participation (“SLAPP”). It lets defendants get early dismissal of lawsuits that target public-interest expression, which affects strategy on both sides. If an application to dismiss the proceedings is made under this legislation, it must be shown that the proceeding arises from an expression made by the person making the application and that the expression relates to a matter of public interest. If this first step is proved, the onus is then on the other side to prove that there are grounds to believe that the proceeding has merit. They must also prove that the applicant has no valid defence in the proceeding and that the likely harm to the respondent is serious enough that the public interest in continuing the proceeding outweighs the public interest in protecting that expression.

/by

How Does The Principal Residence Exemption Affect Spouses

, ,

The Scenario

Two spouses each own property in only their name alone, and go back and forth between living in their respective properties together. These spouses are not each other’s primary beneficiaries. If one of the spouses passes away, leaving a Last Will and Testament which appoints a person other than their spouse as the executor of their estate, this could lead to a problem when the deceased spouse’s final tax return is filed. If the principal residence exemption (“PRE”) is claimed for the deceased spouse’s property for every year they owned it, this can have implications for the surviving spouse. Although claiming the PRE for every year the deceased spouse owned the property may mean that there would be no tax owing to the CRA on the capital gains from the appreciation of that property, this may not be the best course of action.

The Problem

This scenario can lead to a problem due to s.54 of the Income Tax Act (“ITA”). S.54 of the ITA states that there can only be one principal residence per family unit in a given tax year. This means that if the executor for the deceased spouse claims the PRE on their property, the other spouse will not be entitled to claim the PRE on their own property during that period. If the surviving spouse’s property appreciates in value, they would have to pay a capital gains tax to the CRA following the sale of their property or the tax would need to be paid by their estate upon their death. Thus, if the executor of the deceased spouse claims the PRE on their property, it could create a situation which unfairly precludes the surviving spouse from claiming the PRE on their own property. It should be noted that this section of the ITA also applies to common law partners. Under the ITA, common law partners are defined as people who cohabitate in a conjugal relationship for at least 12-months.

The Solution

There are steps which can be taken to prevent a person from being deprived the opportunity to claim the PRE on their property. People who are married or in a common law partnership and do not have common beneficiaries should consider entering into an agreement regarding the allocation of PRE years. An agreement would allow spouses to arrange for the PRE to be claimed between them in a manner which minimizes the aggregate amount taxed on the gain attributed to each of their properties and take into consideration other possible tax consequences. If an agreement of this nature exists, the executors and trustees of the deceased spouse’s estate should make decisions regarding the PRE in accordance with the agreement.

/by

Do I Actually Need A Lawyer For Small Claims In BC?

,

If someone owes you money or a contractor did bad work, you may be asking yourself whether you really need to hire a lawyer or whether you can just handle it yourself. Cases which do not involve a lot of money and seem straightforward may or may not be worth hiring a lawyer. The question is, how do you know whether you will be able to navigate the dispute yourself. That is a highly fact dependent question, so here is some information about how claims of smaller monetary value are handled and some indications as to whether you should consider hiring a lawyer or whether you should represent yourself.

Two tracks in BC 

There are two tracks which are meant for people to make their civil claim without the assistance of a lawyer, depending on the monetary value of their claim. The Civil Resolution Tribunal (“CRT”) is meant for claims up to $5,000. The Provincial Court (“Small Claims”) is meant for claims up to $35,000. Both of these processes are meant to be straightforward, simple, and affordable.

What the CRT process actually looks like

The CRT is an online dispute resolution process intended for people to navigate themselves, without the assistance of lawyers. If parties cannot reach an agreement, the tribunal can make decisions about the dispute. Parties can make an agreement to settle at any point in the process. The first step is to either apply to get the process started (if you are the one making the claim) or respond to a claim brought by the other party. The next step is to negotiate to try to reach an agreement. If negotiations are not working, a CRT case manager will step in to help the parties reach an agreement. Finally, if an agreement still cannot be reached, the tribunal will make a decision about the dispute.

What Small Claims looks like

Small Claims is a court process meant for people to settle their disputes in a straightforward and simple manner. The first step to get started in Small Claims is to file a Notice of Claim. A Notice of Claim is a form that gets filed with the court registry and sets out basic information about the claim, such as who was involved, what happened, and how much the claim is for. You can file the Notice of Claim at the court registry location which is closest to either where the other party lives or carries on business, or where the event that led to the claim took place. The next steps are for the party who filed the Notice of Claim to serve the notice on the other party and wait for their reply. The registry will set a date for a settlement conference and notify the parties. At the settlement conference the judge will sit down with the parties and try to find a way to settle the matter. If the matter is not resolved, the next step is to begin the trial process. At trial each party makes their case to the judge, and the judge makes a decision. After the judge makes their decision, either party can make an appeal to BC Supreme Court if they disagree with the decision.

When self-representation works well 

Given that the CRT and Small Claims are designed to be straight forward and accessible enough to be used without the assistance of a lawyer, there are cases in which it makes more sense to represent yourself, such as clear-cut debt claims. Other factors which favour self-representation are if the claim is for a small dollar amount or if there is good documentation. The less complex the matter is, the more likely you are to successfully represent yourself.

When it doesn’t 

Despite the fact that the CRT and Small Claims are meant to be simple enough to navigate without a lawyer, there are still instances where a dispute may become complex enough that hiring a lawyer is worth it. One example of this is where there is disputed responsibility or liability, meaning the defendant does not  agree that it is in breach of certain obligations (or at fault). This may require obtaining expert evidence. Counterclaims also make matters more complicated because they are claims that the person who is being sued in the initial claim makes against the party suing them. Further, if there are evidence issues, it can become difficult to figure out what is good evidence for your case. If the opposing party lawyers up, this may also be incentive to hire your own lawyer, so you are not at a disadvantage. Another consideration is whether there is a chance your claim might exceed the CRT or Small Claims ceiling. If it is a possibility that your claim may need to be brought in Supreme Court, navigating the Supreme Court system may prove to be more of a challenge. These are all issues a lawyer can help you with.

Strata matters

Strata matters are typically initially addressed by the CRT. The CRT can help resolve a number of strata dispute issues including, non-payment of strata fees, non-enforcement of strata bylaws, and issues regarding common property. That being said, the CRT cannot address certain issues, such as matters that affect land, specific significant issues in a strata complex, and disputes outside of their jurisdiction (i.e. outside BC, claims against the government, etc.).

/by

“Can My Landlord Do That?”

,

“Can My Landlord Do That?” — A Plain-Language Guide To BC’S Residential Tenancy Act

The statute that governs this 

Tenancy agreements and rental units are governed by BC’s Residential Tenancy Act (“RTA”). When there is a dispute between a landlord and a tenant, the Residential Tenancy Branch (“RTB”) is the tribunal that resolves these disputes (most of the time). The RTB applies the RTA, to resolve disagreements between landlords and tenants.

Entry into the rental unit 

A landlord must not enter a rental unit unless the tenant gives permission at the time of the entry. Otherwise, the landlord must give the tenant written notice at least 24 hours and not more than 30 days before the entry, and it must be for a reasonable purpose. The landlord may also enter the unit if they have an order of the director authorizing the entry, the tenant has abandoned the rental unit, or an emergency exists and the entry is necessary to protect life or property. A landlord may inspect a rental unit monthly. Under the RTA, emergency repairs mean repairs which are urgent, necessary for health or safety, or for the preservation of the residential property. They must be made for the purpose of repairing:

  • major leaks in pipes or the roof,
  • damaged or blocked water or sewer pipes or plumbing fixtures,
  • the primary heating system,
  • damaged or defective locks that give access to a rental unit,
  • the electrical systems, or
  • in prescribed circumstances, a rental unit or residential property.

Security and pet damage deposits 

A landlord must not require or accept either a security deposit or a pet damage deposit that is greater than half of one month’s rent. If a landlord accepts a security deposit or a pet damage deposit that is greater than half a month’s rent, the tenant may deduct the overpayment from rent or otherwise recover the overpayment. Within 15 days after either the date the tenancy ends or the date the landlord receives the tenant’s forwarding address in writing (whichever is later) the landlord must either repay any security deposit or pet damage deposit to the tenant with interest or make an application for dispute resolution claiming against the security deposit or pet damage deposit.

Rent increases 

Under the RTA, landlords can only increase the rent once every 12 months. Landlords must give tenants at least 3 months notice before the date that the increase in rent is effective. There is also only a certain annual allowable percentage that the landlord can raise the rent by. The percentage amount is equal to the current inflation rate.

“Renovictions” and landlord’s use evictions 

A “renoviction” occurs when a landlord ends a tenancy for the purpose of preforming renovations or repairs on the rental unit. In 2021 residential tenancy changes were made to protect tenants from “renovictions”.  Landlords are now required to apply to the RTB for pre-approval before ending a tenancy to carry out renovations. Further, tenants can argue that the tenancy does not need to be ended for the work to be done. In response, landlords must have the necessary permits and approvals, as well as proof that the work is necessary and that the tenancy must be ended to complete it. Further, if a landlord does not carryout the renovations after the tenant has moved out, it is now easier for tenants to receive compensation for this.

When to go to the RTB vs. when to call a lawyer 

The RTB is designed for self-representation and is an affordable and accessible way for landlords and tenants to resolve their disputes. While the RTB is a great option for straightforward disputes with relatively small monetary amounts, there are times when getting a lawyer is worth it. Cases involving a large deposit, complex tenancies, or an unlawful eviction with resistance may be difficult to navigate on your own without the help of a lawyer.

Landlord termination of tenancy on a sale of the property

Under s.49 of the RTA, a landlord can end a tenancy if the landlord has entered into an agreement to sell the rental unit. All the conditions for the sale must be met before the tenancy can be ended. It is the right of the purchaser of the property to ask the landlord to give notice to end the tenancy if the purchaser, or a close family member of the purchaser, intends to occupy the rental unit.

/by

Can I Get Out of a Contract in BC?

, ,

Can I Get Out of a Contract? Cooling-Off Periods and Contract Basics in BC

You’ve entered into an agreement with another party, and now you would like to back out of the contract. What are your options? This article will provide an overview of contract law in BC, including the general rule when it comes to trying to get out of a contract, when there are specified windows for cancelling a contract after signing, and how to get out of a contract when there is no specified window to do so.

The General Rule 

In Canada, the general rule is that once you sign a contract, you’re bound by the terms of that agreement. You cannot back out of the contract once it has been signed and becomes binding, regardless of whether you no longer wish to be a part of the agreement. Unless you can get out of the contract by relying on the terms of the contract itself or a statutory right to cancel the contract, you are liable to preform your obligations under it. There is no universal right to cancel a contract within a specified period after the contract has been signed. However, there are specific instances in which a “cooling-off period” may exist, which entitles a party to cancel the contract within a certain amount of time after it has been signed.

Where cooling-off periods DO exist in BC

A cooling-off period exists in real estate law. Under s.42 of the Property Law Act, BC has a 3-business-day Home Buyer Rescission Period, which was introduced in 2023. Meaning, a purchaser of residential property can cancel the contract of purchase and sale for the property by serving written notice on the seller within 3 business days after the date that the acceptance of the offer was signed. This cooling-off period does not apply to property that is located on leased land, a leasehold interest in residential property, property that is sold at auction, and property that is sold under a court order or the supervision of a court. If a purchaser cancels a contract of purchase and sale, they must pay 0.25% of the purchase price set out in the contract to the seller.

Direct sales (such as door-to-door sales) contracts and distance sales (such as online shopping) contracts also have a cooling-off period. Under BC’s Business Practices and Consumer Protection Act (the “BPCPA”), a consumer can cancel a direct sales contract by giving notice of cancellation to the supplier within 10 days of receiving a copy of the contract. A consumer can cancel a distance sales contract by giving notice of cancellation to the supplier within 7 days after they receive a copy of the contract, if the sales contract does not contain all of the necessary information, the supplier does not give the consumer the opportunity to correct errors in the contract, or the supplier does not give the consumer the opportunity to accept or decline the contract. A consumer has 30 days to cancel the contract, if the supplier does not provide the consumer with a copy of the contract.

Timeshares and continuing services (such as a gym membership) contracts also have specific cancellation rights under the BPCPA. Consumers can cancel time share contracts and continuing services contracts by giving notice of cancellation to the supplier within 10 days of receiving a copy of the contract. A consumer can cancel a time share contract within one year after the date that the consumer receives a copy of the contract, if the contract does not contain the information required under the BPCPA. A consumer can cancel a continuing services contract at any time if there has been a material change in the circumstances of the consumer or the services provided by the supplier.

Contracts with NO cooling-off period

Contracts which are not included as having a cooling-off period under the BPCPA, do not have a window designated by legislation for parties to cancel the contract. Common types of contracts which are not mentioned in the BPCPA include most retail purchases and service agreements. However, even if a contract does not have a cooling-off period, there may still be a way to back out of it.

Grounds to get out of a contract that has no cooling-off right 

Even if there is no cooling-off period, you may be able to get out of a contract if the other party has made a misrepresentation. A misrepresentation is a statement that a party to the contract represents as a fact but is untrue and misleading. If you have relied on a misrepresentation by the other party, you may be entitled to a remedy, potentially including the cancellation of the contract.

Another reason a contract may be cancelled is on the grounds of unconscionability. Under the BPCPA, if an unconscionable act or practice has occurred, that transaction is not binding on the consumer. An unconscionable act can happen before, during, or after the consumer transaction. A court will look at all the circumstances the supplier knew or ought to have known about. This includes whether the supplier subjected the consumer to undue pressure to enter into the transaction or if the supplier took advantage of the consumer’s inability or incapacity to reasonably protect their own interest.

There are also specific contract terms which are prohibited under the BPCPA, such as terms which prevent consumers from posting reviews online. The inclusion of one of these terms would void the contract. Frustration of the contract may also void the contract. Frustration is where circumstances the contract did not anticipate occur and carrying out the contract as it was intended is no longer possible. It should be noted that financial hardship or the inability to make payments under the contract are not sufficient to engage frustration.

/by

Does a Named Beneficiary Automatically Inherit your TFSA, RRSP, RRIF or FHSA? Not Always in BC

, , ,

Many people assume that naming a beneficiary on a benefit plan, such as a Tax-Free Savings
Account (TFSA), Registered Retirement Savings Plan (RRSP), Registered Retirement Income
Fund (RRIF), or First Home Savings Account (FHSA), guarantees that the funds will pass
directly to that person upon death.

It seems straightforward. However, in British Columbia, it is not quite that simple.

In British Columbia, the law surrounding beneficiary designations is more complicated than
most people, and even some advisors, realize. A long-standing legal doctrine called the
presumption of resulting trust can sometimes override a named beneficiary, meaning the funds
may end up back in the estate instead of going to the intended recipient.

What Is the Presumption of Resulting Trust?

The presumption of resulting trust arises where someone transfers property to another person,
other than a spouse, in exchange for nothing and without clearly demonstrating the intention to
gift the property to the recipient. If the person’s intention is unclear, the law presumes that the
recipient is merely holding the property in trust for the original owner.

The doctrine appears most frequently in estate disputes involving joint bank accounts or jointly
held real estate between parents and children. If the child cannot prove that the parent intended
them to keep the asset after the parent’s death, then the property will be treated as being held in
trust for the estate.

How the Presumption Applies to Beneficiary Designations

Across Canada, courts have disagreed on whether the presumption of resulting trust applies to
registered accounts with designated beneficiaries. In Manitoba, the presumption applies to
benefit plans with designated beneficiaries, 1 whereas in Saskatchewan, it does not. 2 In British
Columbia, the courts have consistently held that the presumption does apply in these
circumstances.

FHSA, the law presumes that the beneficiary holds the money in trust for your estate, unless they as a result, in British Columbia, if you designate a beneficiary on a TFSA, RRSP, RRIF, or can prove that you intended the funds as a gift. If there is no evidence of intention at the time of the designation, the money will likely be held in trust for the estate.

The Unresolved Question: Section 95 of WESA

British Columbia courts have yet to resolve a major issue: section 95 of the Wills, Estates and
Succession Act, which states that a benefit payable to a designated beneficiary under a benefit
plan does not form part of the account holder’s estate. While this may appear definitive, the
courts have not squarely addressed how this section affects the presumption of resulting trust.
Several cases have noted the potential impact of the section but have declined to decide the issue
because they were able to decide the case on other grounds.

Ramifications and Practical Implications

Since a designated beneficiary may still need to prove that the account was a gift, account
holders should ensure that their intentions are clearly documented at the time the beneficiary is
designated.

Courts may look for written notes, conversations witnessed by others, the consistency of the
overall estate plan, and instructions given to financial advisors. Without evidence, the
presumption can be hard to rebut.

If you intend for the account to transfer to the designated beneficiary upon your passing, you
should make your intention clear, which may include:

  1. Putting your intention in writing
  2.  Communicating your wishes to your executor, estate planner, and family
  3.  Ensuring your overall estate plan is consistent

Until the courts clarify how section 95 affects the current analysis, you should not solely rely on
the designation form provided by your financial institution. Taking proactive steps now can help
ensure that your intentions are honoured later.

1 Dreger (Litigation Guardian of) v Dreger, 1994 CanLII 16643 (MBCA).
2 Nelson v Little Estate, 2005 SKCA 120.
3 Neufeld v Neufeld, 2004 BCSC 25; Stade Estate (Re), 2017 BCSC 2354; Williams v Williams Estate, 2018 BCSC
711; Simard v Simard Estate, 2021 BCSC 1836; Chappell v Chappell, 2024 BCSC 268.

/by

Did a Text Message Change a Will?

, ,

When a loved one passes away, we rely on their will to provide certainty and finality regarding the distribution of property.

Historically, legal systems required strict compliance with formalities for a will to be considered valid, thereby ensuring the necessary certainty.

However, modern estate law in British Columbia includes a significant curative power under section 58 of the Wills, Estates, and Succession Act (WESA). This power allows the court to order that a “record, document, or writing” be fully effective as a will, or an alteration or revocation of a will, if it determines that the record represents the deceased’s testamentary intentions. This “record” can include text messages and emails.

This raises a crucial question about trust and certainty in estate planning: can an informal message expressing a desire to change a will change the will? The British Columbia Court of Appeal considered this question recently in Paige v. Noel, 2025 BCCA 358

The Core Dispute: Messages vs. Formal Will

The appeal involved the estate of Barbara Ann Kissel, who died on January 7, 2023. Her 2014 will named her goddaughter, Jennifer Elise Paige (the Appellant), and Adrian Joseph Kissel (a Respondent), as equal residual beneficiaries.

After a conflict developed between the deceased and Jennifer Paige, the deceased sent a series of electronic messages (the “Messages”) to her executor, Michelle Dianne Noel, in October 2022. These Messages outlined her intent to “redo” her will and said, “Jennifer is out”.

Crucially, the subsequent email sent on October 15, 2022, detailed her meeting with a notary and her decision not to destroy her current will immediately, explicitly stating: “the current will that you have will stand until I get a new one.” She passed away months later without executing a new will.

The Chambers Judge’s Finding

The chambers judge, applying the curative power found in section 58 of WESA, concluded that the Messages represented the deceased’s “fixed and final intention” to remove Jennifer Paige as a beneficiary. The judge placed significant weight on the deceased’s consistent, stated intention to remove Jennifer, even though she was taking steps to accomplish this via a notary. The judge reasoned that the statement that the current will would stand was simply to prevent the estate from being tied up in probate should the deceased die intestate before the new will was completed. Consequently, the judge ordered the Messages to be fully effective to alter the 2014 will.

The BCCA Rejects Informal Revocation

The BCCA allowed the appeal, finding that the chambers judge erred in law regarding the interpretation and application of s. 58 of WESA.

The Court focused on the necessity for a “deliberate or fixed and final expression of intention as to the disposal of property on death”. Madam Justice Fisher, writing for the Court, explained that under s. 58, this standard means that the deceased must have intended the record itself—in this case, the text and email communications—to be legally operative as a revocation or alteration.

The court cautioned that while electronic documents such as texts and emails can technically be “records” under s. 58(1), informal communications that are simply a recording of a conversation are unlikely to meet the required threshold unless the content demonstrates a fixed and final intention to effect a testamentary disposition.

The court found the chambers judge made a palpable and overriding error in concluding the Messages represented a fixed and final alteration, particularly because the deceased herself clearly expressed a conditional intention:

1. The deceased stated she had an appointment to “redo my will”.

2. She expressly declared that the “current will… will stand until I get a new one”.

The BCCA emphasized that the deceased intended to effect the alteration by making a new will, and until that new will was made, her existing will was to remain operative. The fact that the Messages contemplated the preparation of a formal new will meant they were not intended to be the alteration themselves.

In contrast to a case where an informal document was admitted because the deceased had never made a will and the extrinsic evidence supported the document’s finality, the deceased here had an operative will and was aware of the formalities required to change it.

The Takeaway

The decision reaffirms the high bar for using section 58 of WESA to validate informal documents, particularly when those documents express an intention to later create a formal will. While WESA provides a curative power to overcome technical non-compliance, that power cannot transform a record of a conversation or future intent into a legally binding testamentary document unless the deceased intended the communication itself to operate as the alteration or revocation.

The case serves as a crucial reminder: A record must not only express a desire to dispose of property differently, but it must also be intended by the deceased to operate as the final testamentary act at that material time, like an anchor securing a boat’s fixed position, rather than merely a navigational note detailing where the boat intends to go next.

/by

Buying a Strata? Essential Strata Documents To Review

,

Buying a strata/condo, whether a townhouse or an apartment, isn’t just about choosing the right home – it is also about understanding the strata corporation that comes with it.

The building’s financial health, governance, and long-term planning directly affect your investment. That is why a thorough strata document review is one of the most important steps in the purchase of a strata property.

Strata documents are important for a purchaser of a strata property as they give you a behind-the-scenes look at:

• How well the building is maintained

• The financial strength of the strata

• Whether major repairs are coming soon

• How the community operates, behaves and makes decisions

• Whether you will face unexpected costs or special levies

Strata documents may be thought of as the “home inspection” for the entire building, not just your unit.

Essential Strata Documents Every Buyer Should Review

1. Form B Information Certificate

Provides a snapshot of the strata’s overall health, including monthly fees paid by owners, upcoming special assessments, summary of insurance coverage, bylaw updates, ongoing legal proceedings, and parking and storage allocations.

2. The Strata Plan

Shows exactly what you are purchasing, and includes the layout of the building, common property, limited common property, and the size and boundaries of your unit.

3. Meeting Minutes

Perhaps the most revealing documents. Minutes highlight ongoing disputes, maintenance concerns, owner complaints, budget discussions, and upcoming projects. Buyers should obtain at least two years of meeting minutes to get a fulsome understanding of the strata.

4. Strata Bylaws and Rules

Outline how residents may use their property. Common topics include pets, rentals, renovations, noise, smoking, parking, and storage.

5. Depreciation Report

One of the most critical documents. It outlines the condition of major building components, estimated replacement timelines, projected repair costs, and long-term funding. This document helps buyers anticipate future special levies/assessments. A very negative report may affect mortgage eligibility.

6. Engineering and Consultant Reports

These reports dig deeper into structural and mechanical issues. Pay close attention to end-of-warranty reports, water ingress issues, envelope concerns, and mechanical system assessments. Problems arising in these reports may not yet be present in the strata’s meeting minutes.

7. Strata Insurance Documents

Review the strata’s deductibles, coverage limits, exclusions and claims history. High deductibles may result in significant out-of-pocket costs for owners. Obtaining your own insurance policy is essential to mitigate these deductible expenses.

8. Financial Statements

Assess the financial statements to ensure that the operating budget makes sense, the contingency reserve fund is adequately funded, and that expenses are not rising faster than fees. If the strata has low reserves, it may rely on frequent special levies.

9. Annual Operating Budget

Shows how your monthly fees are used and whether the strata is planning responsibly.

10. Disclosure Statement (if applicable)

A disclosure statement is applicable for new buildings. It is an important document for understanding parking and storage allocations, long-term contracts and shared facility arrangements. These details may impact your use and costs for years.

11. Long-Term Lease or License Agreements

Some parking stalls or storage lockers may be under special agreements and not owned in conjunction with your strata unit. Review the terms carefully.

12. Air Space Parcel Easement Agreements

If your building shares land or amenities, such as parking, with another development, this document explains the cost-sharing and responsibilities.

13. New Home Warranty Documents and Claims History

For newer buildings, review remaining warranty coverage, if any claims have been filed, and whether any issues remain unresolved. Warranty disputes may signal broader issues with the building.

14. Legal Proceedings

Any lawsuits involving the strata may lead to significant financial implications for owners.

Red Flags Buyers Should Watch For

When reviewing the above documents, buyers should be alert for:

• Compliance with the Strata Property Act (a lawyer can assist you in determining whether the strata is in compliance with the SPA)

• Low contingency reserves

• Repeated or escalating complaints

• Evidence of water leaks or building envelope problems

• A history of special levies

• Upcoming major repairs

• Conflicts within council or with owners

/by

Why Should a Parent Document a Loan to a Family Member?

, , , , ,

In today’s housing market, it is increasingly common for parents to help their children financially when buying a home. Although the parent’s intention—whether the funds are meant as a gift or a loan—may be clear at the outset, circumstances such as death or changing family relationships can create uncertainty over time. This is why proper documentation is essential. Clear records protect all involved and preserve family relationships by preventing misunderstandings down the road.

Understanding the Legal Presumption

When a parent transfers money to an adult child without receiving anything in return, the law generally presumes that the transfer is not a gift but is instead held on trust by the child for the parent.

This is because the law presumes bargains, not gifts to adult independent children. In other words, while the child may have legal ownership of the money, the parent is considered the beneficial owner.

This is called the presumption of resulting trust. It applies unless evidence shows that the transfer was intended as a gift.

The presumption can lead to complications if a dispute arises later, particularly when there is no clear record of what the transferring parent intended (gift versus loan) at the time of the transfer.

Making Your Intentions Clear

To avoid confusion and potential disputes, it is critical to establish, from the outset, whether the money is intended as a gift or a loan. If the parent intends the funds to be a loan, certain steps should be taken to document this clearly:

  1. Create a Written Loan Agreement: Courts focus on the intention of the parent at the time of the transfer. A written document illustrating the parent’s intention, prepared contemporaneously with the transfer of funds, provides the strongest evidence of this intent.
  2. Specify Repayment Terms: The loan agreement should outline the terms of repayment, including any interest, schedule of payments, and consequences of default. Even a simple repayment plan reduces ambiguity as it demonstrates the expectation of repayment.
  3. Keep Documentation Accessible: Retain copies of the loan agreement, bank transfers, and any correspondence discussing the loan. This documentation can be invaluable if disagreements arise later.

If the funds are intended as a gift, it is equally important to document that intent. A simple Deed of Gift, gift letter or other written declaration can help to evidence the intention of the parent to give the money with no expectation of repayment. This protects both parties and can be used to rebut the legal presumption of resulting trust.

Common Pitfalls

Problems most often occur when nothing is documented at the time of transfer of funds. What begins as a clear oral agreement can become muddled over the years, especially as family dynamics shift – for example, if the child separates from a partner, if siblings become involved, if the parent’s financial situation changes or if someone dies.

Without clear evidence, one party may later claim that the funds were a gift, while the other insists they were a loan. This can lead to costly legal battles and lasting strain on family relationships.

Final Thoughts

Providing financial assistance to family members can be a generous and helpful gesture, but it comes with potential legal and relational complexities. By clearly documenting gifts or loans (specifying repayment terms), and keeping thorough records, parents can protect their interests and maintain harmony within the family. Clear communication and proper documentation ensure that everyone understands the nature of the transaction, preventing misunderstandings down the road.

If you are considering providing financial help to a child or another family member, it’s important to make sure your intentions are clearly documented. The lawyers at Heath Law LLP in Nanaimo can guide you through preparing a loan agreement or gift documentation to protect both your interests and your family relationships. Contact us today to schedule a consultation.

/by

Real Estate in BC: Misrepresentation in Property Disclosure

, ,

In real estate transactions, parties rely on the information provided by one another to form a clear understanding of the deal.

Mutual trust and honest communication are essential for meaningful engagement among all involved. The act of misrepresentation, whether through a false statement or the omission of a material fact, undermines that trust. Misrepresentation can significantly influence a party’s decision and expose the other to serious legal consequences.

A recent decision, Sewell v. Abadian, a 2025 British Columbia Court of Appeal ruling, illustrates how courts in BC address the issue of misrepresentation by omission.

In Sewell, the seller, a former realtor, failed to disclose in the disclosure statement that an addition to the home did not have a permit, even though it was known to him. He crossed out relevant sections of the disclosure statement stating only that he had not lived in the home himself. The Court concluded that the buyer had reasonably relied on the seller to disclose everything he knew about the property. By crossing out parts of the disclosure statement, the buyer believed the seller was indicating he was unaware of the answers to those questions.

The seller’s omission was found to constitute misrepresentation, entitling the buyer to rescind the deal and recover a $300,000 deposit. The Sewell decision reinforces the legal and ethical responsibility of full disclosure in real estate transactions. It makes clear that silence or selective omission can amount to misrepresentation with serious consequences, and that courts will scrutinize attempts to obscure or withhold material information.

For anyone involved in real estate, this case underscores the importance of transparency and the potential risks of failing to disclose known issues.

/by