Generally, when asking a Court to find that a promise between two parties is legally enforceable, the Court will require the elements of a contract to be present. The basic elements of a contract include, among other things, offer, acceptance, and consideration. While all of the elements are vital, consideration (some benefit flowing to both parties) is important as it is an objective measure that both parties intended to enter into a legal relationship. Without these elements present between a party, generally, a Court will not enforce a contract.  However, the Supreme Court of Canada, in Cowper-Smith v Morgan (2017 SCC 61) has recently affirmed the use of proprietary estoppel in Canada. Proprietary estoppel might allow people to protect their rights and interests without consideration being exchanged between the parties.

The SCC acknowledged that proprietary estoppel is commonly concerned with interests in land but acknowledged that the constraint is arbitrary. The court noted that the BC Court of Appeal in Sabey v. von Hopffgarten Estate (2014 BCCA 360 at para 32) entertained the question but did not make a decision on the issue. The Court will consider the following elements to determine whether equitable interests arises:

  1. a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;
  2. the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and
  3. the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word.
  • Cowper-Smith, supra, para. 15.

Unlike other forms of estoppel, proprietary estoppel can be the foundation for a lawsuit. The purpose of proprietary estoppel is to avoid unfairness or injustice that would result to one party if the other were to break their work and rely on their strict legal rights. For example, English courts have used the doctrine in relation to chattels, insurance policies, intellectual property rights, commercial assets, and other forms of property. However, the SCC did not make any decisions on this issue.

Currently, it is somewhat of an open question to determine how far Canadian Courts will extend proprietary estoppel. If you have relied on someone else’s promise to your detriment, please give us a call to discuss your possible legal remedies.


What is an Examination for Discovery?

In nearly all litigation matters, parties will undergo what is termed an “Examination for Discovery” or “Discovery” for short. Typically, a Discovery means that you will be questioned under oath by a lawyer acting for the other party in your legal action. The main purpose is to learn more about the case, assess your credibility and reliability as a witness, and to have evidence provided under oath to rebut contrary evidence that you may give at trial.

While the foregoing description makes many parties nervous, Discoveries are oftentimes quite casual. You will be in a room with the lawyers, often times the other party, and a Court Reporter. The lawyer who is conducting the Discovery will ask you a series of questions about your case in an effort to obtain admissions to prove certain facts at trial. The Court Reporter will record and transcribe the Discovery, and produce a transcript afterwards.

As everything you say is being recorded and transcribed, the following are important reminders:

  • Listen to each question carefully and think before your answer
    • It is always acceptable to answer with an “I don’t know” if you do not know an answer a question asked of you
  • If you do not understand a question, ask the lawyer to rephrase it for you
  • Disclose only as much information as necessary to answer the question asked of you;
    • For instance, if asked “what color was the car” it would not be in your best interest to provide a vivid description of the car, the surrounding circumstances, and the weather that day
  • Answer the question truthfully and to the best of your ability
    • You are under oath, and are legally obligated to tell the truth. Answers contrary to available evidence could lead to a Judge not accepting your evidence at trial due to credibility concerns
  • Make sure to answer with a verbal response
    • The transcript will not pick up cues such as “mhm” or “uh huh”, nor will the Court Report record that you made hand gestures

The best way for a witness to act at a Discovery is calm, collected, and with confidence. Lawyers know that parties who do well at Discovery will do well at trial.

If you require assistance with your legal matter, contact Heath Law LLP.

Hiring a contractor to perform work around your house or property can be a long and complicated process. It is worse when the work is not done properly, resulting in delays or requiring repairs to the work completed by the contractor. If a contractor refuses to remedy the defects, a lawsuit might be the best option to ensure that you are compensated appropriately for the breach of contract. If you ultimately decide to sue the contractor, a Court will determine if the contractor acted negligently when performing the work.

The Provincial  Court of British Columbia provides a good summation of the law in the case of Morgan and Gaiga v. Pacific Coast Floor Covering Inc., 2018 BCPC 236. In that case, the Court was considering if flooring had been installed negligently. When determining if the flooring had been installed negligently, the Court opined that a contractor is required to perform the work to a usually ascertained objective standard. A contractor, when completing a job, must ensure that:

  1. The materials are of proper quality
  2. The work is performed in a good and workmanlike manner;
  3. The materials and work, when completed, must be fit for their intended purposes; and
  4. The work must be completed without undue delay.

When determining if work is completed to the standard required by law, a Court will consider a broad category of factors. A Court will consider the industry standards associated with that particular type of construction, any regulatory standards for the work performed, or the manufacturer’s installation instructions for the product. When considering these elements, no one element will be determinative, but a Court will attempt to determine if the contractor performed the work negligently. Ultimately, the Court did find that the flooring was not installed with generallyaccepted practices and standards in the industry.For example, the Court reviewed the manufacturer’s Installation Instructions and the industry standards adopted by the Canadian Wood Flooring Association. Consequently, the Court awarded a judgment to repair the negligent flooring.

If you have concerns regarding work completed in or around your home, please give us a call to discuss the matter. Deciding on the best course of legal action will require a careful analysis of the specific circumstances.

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.

What is a Certificate of Pending Litigation and How it is Removed?

What is a Certificate of Pending Litigation?

A certificate of pending litigation (CPL) is available to a party to a proceeding where that party claims an estate or interest in land.  The party may register a CPL against the land in the land titles office in the same manner as a charge is registered.  The CPL burdens the land and warns the public of the pending litigation.

What is the Effect of a Certificate of Pending Litigation?

Once the CPL has been properly registered on the land, the Registrar of the land titles office must not make any entry in the register that has the effect of charging, transferring or otherwise affecting the land described in the certificate until registration of the certificate is cancelled.

How to Remove a Certificate of Pending Litigation?

  • S.252(1) of the BC Land Title Act states: “If a certificate of pending litigation has been registered and no step has been taken in the proceeding for one year, any person who is the registered owner of or claims to be entitled to an estate or interest in land against which the certificate has been registered may apply for an order that the registration of the certificate be cancelled”.
  • S.253 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been discontinued, the registrar must cancel the registration”.
  • S.254 of the BC Land Title Act states: “If an action in respect of which a certificate of pending litigation is registered has been dismissed, the registrar must cancel the registration as provided in the regulations”. This section is of course subject to any appeals that the parties to the action may bring.
  • S.255 of the BC Land Title Act allows for the cancellation of a CPL by a written request from the owner of the lands which have been burdened by the CPL or a written request from the owner’s solicitor.
  • S.256 of the BC Land Title Act provides another way of cancelling a CPL which is based on the hardship and inconvenience suffered by the owner of the land which is subject to the CPL. If the owner can prove that they are experiencing a particular hardship and inconvenience by virtue of the CPL, the court has the ability to cancel the CPL.

To summarize, once a CPL has been registered against a particular piece of land the BC Land Title Act supplies five different ways in which that CPL can be cancelled.

In addition to a CPL being cancelled through the BC Land Title Act, a CPL can be removed on the basis of having been improperly applied or filed (NextGen Energy Watervliet TWP, LLC v. Bremner, 2017 BCSC 2096).

A valid CPL requires the plaintiff in the hypothetical action to claim an interest in land.  The plaintiff must demonstrate that there is an arguable case or a triable issue.  If there is a prima facie case for an interest in land on the pleadings, a CPL may be registered, and the court should not embark upon a consideration of the merits of the claim (Quigley v. Robison, 2009 BCSC 1296 (B.C. S.C.) at para. 27).  If the owner of the lands who have been burdened by the CPL can show that the plaintiff has no merits to his or her claim, the CPL can be cancelled.

Under Section 18 of the Supreme Court Act of British Columbia and Section 29 of the Court of Appeal Act of British Columbia, a person can be deemed a vexatious litigant.  Section18 of the Supreme Court Act is stated below and Rule 29 is nearly identical.

18   If, on application by any person, the court is satisfied that a person has habitually, persistently and without reasonable grounds, instituted vexatious legal proceedings in the Supreme Court or in the Provincial Court against the same or different persons, the court may, after hearing that person or giving him or her an opportunity to be heard, order that a legal proceeding must not, without leave of the court, be instituted by that person in any court.

In a recent BC case, Hoessmann Estate v. Aldergrove Credit Union, 2018 BCSC 256, a litigant was deemed by the Court to be a vexatious litigant.  The circumstances of this case and the litigant are as follows.

The litigant was designated as the Executor of her father’s estate and proceeded to take legal action in regards to property that was devised in the Will.  The property had a mortgage that the litigant defaulted on which resulted in a subsequent foreclosure and sale.  The litigant sued the bank who foreclosed on the property as well as the purchaser of the property.   The litigant alleged fraud, bad faith and a multitude of other causes all without grounds to do so.  This commenced an over five year process of proceedings in which the litigant brought any possible proceeding she could even if the claim had no merit.

During all of this time, the other beneficiaries under the Will sought for a variation of the Will which was granted removing her as the Executor under the estate which meant that she no longer had standing to bring action on behalf of the estate with regard to the foreclosed property.

The Court stated at paragraph 57 of the decision: “As a result of the foreclosure and the choices she made in depleting the advances she received from the estate, the litigant is now destitute and lives in a women’s shelter.”  This is a very unfortunate result.  It is hard to know exactly what motivated the litigant to pursue so many frivolous claims, but it may be a lesson learned for her and other persons with similar proclivities.

When all was said and done, over 23 Masters and Judges had heard applications resulting in costs of over $200,000 being awarded against the litigant.  The costs awarded against her were more than three times the value of the mortgage on the property that was the subject of all the litigation.

The litigant was deemed a vexatious litigant which meant that she would be unable to bring action against the bank or the purchaser of the property without first seeking leave form the court.