How Long Do You Have To File Your Law Suit?

If you have had an accident or encountered some other issue that might require legal action, it is important that you seek legal advice as soon as possible. In British Columbia, the limitation period for starting an action is generally 2 years. The BC Limitations Act [SBC 2012] Chapter 13 (the “Act”) states:

Basic limitation period

(1) Subject to this Act, a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.

The result of this section is that, subject to a few exceptions (e.g. minors or people with diminished capabilities), if you do not file a lawsuit within 2 years, you may be prevented from bringing a legal claim against the other party.

It can be difficult to determine when this 2 year period begins to run. Generally, again with a few exceptions, this 2 year period begins to run when the damage is discovered. The Act states

Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following:

(a) that injury, loss or damage had occurred;

(b) that the injury, loss or damage was caused by or contributed to by an act or omission;

(c) that the act or omission was that of the person against whom the claim is or may be made;

(d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage.

Given that the limitation period begins to run from when the action was discovered or reasonably ought to have been discovered, it can be very difficult to determine exactly when a limitation period begins to run. Due to the fact that it is not always apparent when the limitation period begins to run on an action, we recommend that you seek legal counsel as soon as possible.

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My Rented Suite is Damaged – Do I Have to Pay Rent? Residential Tenancy Act

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You have signed a one-year lease for a basement suite. The top floor is also rented out by the same landlord to another tenant. You come home from work to find that water has come through the floor above and ruined a number of your personal items. Extensive work is required to return the suite to livable standards. The landlord begins this work by undertaking extensive repairs on the walls and ceiling. As a result, you cannot live in the suite. You move in with a friend and wait for the repairs to be completed. It is now the first of the month. Your landlord is asking for the rent.

Are you legally obligated to pay rent while you are not living in the suite?

As a renter, you are bound by the BC Residential Tenancy Act (the “Act”).  There are only 5 specific instances where a Tenant can refuse to pay the full amount of rent. A Tenant can refuse to pay the full amount of rent only when:

  • An Arbitration Board has given an order to reduce the rent;
  • The tenant has followed the proper procedure to claim money spent on emergency repairs;
  • The landlord has illegally increased the rent;
  • The landlord has overcharged for a pet or security deposit; or
  • The tenant and the landlord have agreed in writing to reduce the rent due to one of the other sections of the Act (e.g. ending the tenancy early).

Since your situation does not fall into one of the 5 categories, it appears that you would have to pay rent to your landlord. If you do not pay rent, the landlord is entitled to file a file a Notice which enables them to end the tenancy after 10 days. The landlord is able to file this notice the day after rent is due.

While it appears that you have to pay rent, there might be other options available to you. For example, 1 option is that you could file a claim for dispute resolution under the Act and seek a rent reduction.

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Family Law – When does Excluded Property lose its Character as Excluded Property?

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Pursuant to s. 85(1)(a) of BC’s Family Law Act,SBC c 25 (the “FLA”), property acquired by a spouse before the relationship between two spouses begins is considered “excluded property.” Because of the language of s. 81 of the FLA,and unless the court makes a determination under s. 96, excluded property is not divided equally between spouses upon separation – in other words, each party leaves the relationship with the property they brought into the relationship.

However, what happens if one spouse (“Spouse 1”) gives a gift of excluded property, for example money or a house acquired by Spouse 1 prior to the relationship, to another spouse (“Spouse 2”) during the course of a relationship? Does the property lose its character as excluded property?

Once property loses its character as excluded property it becomes family property (see s. 84 of the FLA) and, pursuant to s. 81 of the FLA, will be subject to equal division on separation unless the court orders otherwise under s. 95.

Can Spouse 1 claim that the gift given to spouse 2 was a gift of excluded property which should be returned to Spouse 1 upon separation and u not be subject to equal division between the spouses?

In the recent BC case of VJF v SKW, 2016 BCCA 186, the BC Court of Appeal considered whether a $2 million gift of excluded property given by a husband to a wife lost its character as excluded property. The Court stated at paragraph 76: “…the $2 million gift received by Ms. W does “fall back into the communal pot” on separation and is divisible as family property in the normal way. The spouses are presumptively entitled to equal shares as tenants in common….”

How does a spouse protect him or herself from such a result? The Court noted at paragraph 78 that, subject to the other relevant provisions of the FLA, “the transferor can require the transferee to acknowledge that no gift of the excluded property (or its value) is intended.”

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When can a Court vary a Will? – Estate Litigation

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Under the British Columbia Wills and Estate Succession Act, a court has the power to vary a Will from the original intentions of the testator. In Hagan-Bourgeault v. Martens Estate (2016 BCSC 1096), a daughter applied to have her mother’s Will varied. Tataryn v Tataryn Estate, [1994] 2 SCR 807, 93 BCLR (2d) 145 (SCC) outlines the factors that a court must consider when varying a testator’s Will. Ultimately, the Court may vary the Will as long as it is ‘adequate, just and equitable’ in light of the circumstances.

The contest in Hagen-Bourgeault was over a modest estate. The residue of the estate consisted of a structured settlement from ICBC, which paid a monthly income of about $2,200.00 per month. The mother left no immediate direct provision for her daughter in her Will, and did not disclose any reason for her failure to do so. Instead, the mother left the residue of her estate to her husband. The husband’s position was that it was the deceased’s intention that he should have the discretion to make payments to the daughter based on her needs. The Will also stated that if the husband predeceased the daughter, that the “residue of the estate was to be held in trust for the plaintiff” and to be paid at predetermined later dates.

In determining the appropriate division of the estate in Hagan-Bourgeault, the Court analyzed both the financial need of the daughter, and the moral claim that she had to the funds. The Court also reviewed the position of the husband. He only had a short relationship with the deceased and he was financially independent.

The Court held that it was just and equitable to vary the mother’s Will and give the residue to the daughter.

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What are your options if someone is defaming you online? – Defamation

Online defamation can have very harmful effects on your life. The power of the Internet means that information can be spread much more quickly and have far reaching personal and professional consequences. If someone is defaming you online, there are three options which might be open to pursue. These options are aimed at stopping individuals from continuing to post damaging information about you online.

The first option, although very difficult to obtain, is called an Anton Piller order. This remedy allows the court to seize the computer of the other person, so that they cannot continue to post online. However, courts are reticent to order the seizure of another person’s property, as the other party is not given notice and therefore cannot defend themselves in court. Therefore, generally, courts only award an Anton Piller order if the applicant can prove a number of different factors. Given the difficulty of proving the many factors, successfully obtaining an Anton Piller is unlikely.

A second option is to apply to the court for an interlocutory injunction. If granted, this order would prohibit someone from posting defamatory material online. To successfully apply for an interlocutory injunction, the court must be convinced, among other factors, that the applicant will suffer irreparable harm from the defamatory material published online. If a court has granted an interlocutory injunction against the individual and they continue to post online, then the applicant can apply for a contempt order for breaking the court order.

Third, it is also possible to apply for a permanent injunction against the individual posting defamatory material online. Courts have used this injunction to order individuals to permanently remove defamatory material from websites. By ordering the removal of the offending articles, the court has attempted to mitigate the damage caused by the defamatory articles.

The granting of one of these prohibitive orders might not the end of the road. It may be possible to argue that the individual posting defamatory material online should pay damages.

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Termination of Employees Without Cause – Wrongful Dismissal

The relationship between an employer and employee is contractual. As such, there is no general principle that an employer has to employ any particular person. Employment contracts, whether written or unwritten, can therefore be terminated provided certain requirements are met. To terminate an employee, an employer must give an employee notice that they are being let go or pay the employee compensation in lieu of giving notice.

Section 63 of the Employment Standards Act provides a severance formula for employees whose employment has been terminated. However, employees are frequently entitled to more than the amount stipulated in the Act.

In Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986 (S.C.C.) at paragraph 19, the Supreme Court of Canada stated “employment contracts for an indefinite period of time require the employer, absent express contractual language to the contrary, to give reasonable notice of an intention to terminate the contract if the dismissal is without cause.”

The Court then wrote at paragraph 22 that “what constitutes reasonable notice will vary in the circumstances of any particular case.” While calculating the exact amount of compensation varies from case to case, employees are frequently entitled to one month’s notice of termination or pay in lieu for each year they were employed with a company. In other words, if an employee worked at a company for 10 years and is dismissed without cause, the employee may be entitled to 10 months of notice or compensation in lieu of notice.

In van’t Slot v. Oncogenex Technologies Inc., 2010 BCPC 249 at paragraph 14, the court wrote that the Employment Standards Act sets out the “minimum notice” to which an employee is entitled upon being let go from a job. In van’t Slot, the court found that an employment contract can be drafted to expressly provide that an employee’s severance will correspond with the amounts in the Employment Standards Act.

The result of Machtinger and van’t Slot is that employers and employees can contract a specific time period for notice of termination or compensation in lieu. However, any provision setting out the notice or compensation period must line up with the termination sections of the Employment Standards Act, at a minimum. Employers and employees may wish to create certainty in the terms of employment by drafting a clause in the employment contract which provides that if an employee is dismissed without cause, the employee’s severance will mirror the termination sections of the Employment Standards Act. Without such a clause, an employee may be eligible for significantly more compensation than what is provided by the Act.

If you need legal advice on this subject or any other law related inquiry please contact us.

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What are you buying when you commission an original painting? Sale of Goods Act

In the recent British Columbia case of Brennan v. Burrow, 2016 BCPC 78, the purchasers of an original painting from an artist sued to recover the $9,000.00 purchase price.

The purchasers commissioned a painting for their West Kelowna home after viewing the artist’s work at the Calgary Stampede.  The purchasers noticed a problem immediately upon delivery of the painting – that there was a distorting glare due to the finish of the painting. They said that this glare makes it difficult to focus on the painting.  The artist denied the glare problem and stated that the painting had the same finish as the other paintings viewed by the purchasers.

In Court, the purchasers alleged there was an implied term in the contract – on the basis of s. 18 of the B.C. Sale of Goods Act – that the painting would be reasonably fit to hang in their living room.

The Court had to decide whether the contract for the painting is for the work and labour of the artist (separate from the actual painting) or whether it is for the original painting itself? The Court held that in British Columbia contracts for original paintings are for the work and labour of the painter. In other words the contract is not for the actual painting, it is for the time the artist spends on the production of the painting. Since s. 18 of the B.C. Sale of Goods Act only applies to goods, the Court held that there is no implied term in the contract regarding the painting being reasonably fit for the living room and dismissed the purchaser’s claim.

If you need legal advice on this subject or any other law related inquiry please contact us.

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Parenting time right of first refusal; court find disruptive to children when parent only away for short time – Family Law

Hannaford v. Hannaford, 2016 BCSC 398

One issue dealt with in this decision was whether a “right of first refusal” (regarding parenting time) adopted by the parties first in Minutes of Settlement, and later incorporated into a consent order remained appropriate.

The “right of first refusal” required that if one parent was unable to care for the children for a period of at least four hours during their parenting time they must offer the other parent the opportunity to care for the children during that period. At the time of this decision the children were 15, 13, and 9 years old.

The father argued that the “right of first refusal” was impairing his ability to normally parent the children when combined with his work schedule and required commuting time. The mother maintained that it was best for the children if they were with her while the father was not available. A section 211 report prepared by a psychologist recommended that the “right of first refusal” be abandoned. There was no concern about whether the children would be adequately cared for in the absence of the father.

Justice Gray found that requiring the “right of first refusal” after only four hours was disruptive to the children under the circumstances decided that the period for invoking it should be extended from four hours to twenty-four hours. How this number was arrived at was not explained.

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Court clarifies child support calculations for disabled adult children – Child Support

Sindaco v. Sindaco, 2016 BCSC 389

This case involved the determination of the appropriate amount of child support for an adult who remained a child of the marriage due to psychological disability. The adult child was estranged from his father, who was the payor, and lived with his mother, who was the recipient.

The father earned approximately $53,000 per year, and the mother $10,890. Their proportionate split of their incomes were 83% and 17% respectively. If the Federal Child Support Table were applied the father would pay table child support of $488 per month.

The adult child received $906 per month in disability benefits.

Justice Steeves applied the approach from Kohlmuss v. Kohlmuss, 2015 BCSC 1101 in determining appropriate child support, which requires the

-calculation of reasonable costs of the child;

-deduction of the amount of the disability benefit; and

-division between the parents proportionate to income of any shortfall.

One topic of discussion was to what extent the adult child should be afforded discretionary spending money. Justice Steeves determined that inclusion of some spending money was an appropriate expense, despite the child’s history of using such money wastefully, or in some case for purposes harmful to himself.

Ultimately, Justice Steeves found that the current situation where the child was allowed to spend much of his disability benefit as discretionary funds was not appropriate; however, determined that an amount of $50 per week for discretionary spending was appropriate.

The child’s expenses were calculate as $1,140 per month leaving a shortfall of $234 after the disability benefit was applied. The father’s proportionate share based on income was therefore $194.

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Tenant’s grow-ops and knowledge: when will your insurance be invalid? Insurance Law

Bahniwal v. The Mutual Fire Insurance Company of British Columbia, 2016 BCSC 422

The plaintiff’s owned and operated a garden center in Oliver, BC, which was severely damaged by fire. The plaintiff’s also operated a residential rental suite on the property. In the course of responding to the fire it was discovered that the rental suite contained a marijuana grow-op conducted by the suite’s tenant.

There was no indication that the fire was at all related to the grow-op, though the cause of the fire was undetermined. The plaintiff’s insurer refused to cover the fire damage on the basis that they believed the plaintiff was aware of the grow-up, but failed to disclose it to the insurer. The insurer maintained that had the grow-up been disclosed they would have declined to renew the plaintiff’s insurance.

Statutory conditions 1 and 4 of fire insurance policies allow the insurer to void the insurance where there is a misrepresentation, or a failure  to disclose a material change to the risk to insured property.

The main issue was whether the evidence supported a finding that the plaintiff was aware of the grow-op either directly, or through her husband. The plaintiff denied any such knowledge.

While neither the plaintiff or her husband conducted period inspections of the suite, they had on one occasion attended to inspect the suite to determine whether it would be suitable for housing seasonal farm workers, and on other occasions attended to complete repairs and modifications to the suite. The evidence supported that the plaintiff’s husband attended the suite roughly every few months, and either entered the suite, or looked in through the window. The plaintiff and the defendant denied that anything ever appeared amiss.

The hydro bills for the suite went directly to the plaintiff’s husband, who then gave them to the tenant to pay. Some of these bills showed substantial fluctuations in the power used by the suite, which a police officer indicated was consistent with a grow-op existing many months before the fire. The husband testified that as the tenant always paid the bills he did not pay attention to the amounts.

Justice Joyce found the plaintiff and her husband to be credible, and accepted their testimony that they were not aware of the grow-op. As such, the insurer was required to honour their insurance contract.

The plaintiff sought punitive damage based, however they were not successful as Justice Joyce found that the insurer had not acted in bad faith, or with undue haste, and that based on the evidence they had a reasonable, though ultimately incorrect, basis for denying coverage.

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