Background

Under the Franchises Act, franchisors must provide potential franchisees with a disclosure document at least 14 days before either the signing by the prospective franchisee of the franchise agreement, or the payment by the prospective franchisee of any consideration relating to the franchise (whichever is earlier). This disclosure document must be delivered as one complete document, at one time. A disclosure document must contain all material facts, and the following:

• prescribed financial statements;
• copies of all proposed franchise agreements, and other agreements relating to the franchise, to be signed by a prospective franchisee;
• prescribed statements that have the purpose of assisting a prospective franchisee to make informed investment decisions;
• other prescribed information;
• copies of other prescribed documents.

A franchisor must also keep the potential franchisee up to date by providing them with a written statement of any material change. The potential franchisee must receive this statement as soon as practicable after the change has occurred and before the signing of the franchise agreement, or the payment of any consideration relating to the franchise (whichever is earlier).

Prescribed Information

Under the Franchises Regulation, BC Reg 238/2016, a Franchise Disclosure Document must specifically contain the information below.

Risk warning statements

Presented together at the beginning of the document, the following statements:

A prospective franchisee should seek information on the franchisor and on the franchisor’s business background, banking affairs, credit history and trade references.

A prospective franchisee should seek expert independent legal and financial advice in relation to franchising and the franchise agreement before entering into the franchise agreement.

A prospective franchisee should contact current and previous franchisees before entering into the franchise agreement.

Lists of current and previous franchisees and their contact information can be found in this disclosure document.

Dispute resolution description

Requirements under the franchise agreement with respect to arbitration, mediation or other alternative dispute resolution processes, including requirements relating to location.

Financial statements

Financial statements of the franchisor that are prepared in accordance with the generally accepted accounting principles of the jurisdiction in which the franchisor is based. The financial statements of the franchisor must be either audited in accordance with the generally accepted auditing standards or reviewed in accordance with the generally accepted standards that are applicable to review engagements. The financial statements must be for the most recently completed year, unless an exception applies.

Required information about the franchisor

• the business background of the franchisor;
• the business background of the directors, the officers and the general partners;
• previous convictions and pending charges of the franchisor, the franchisor’s associate or a director, an officer or a general partner;
• whether, during the 10-year period immediately preceding the date of the disclosure document, the franchisor, the franchisor’s associate or a director, an officer or a general partner of the franchisor was subject to an administrative order or penalty;
• whether, during the 10-year period immediately preceding the date of the disclosure document, the franchisor, the franchisor’s associate or a director, an officer or a general partner of the franchisor was found liable in a civil action for misrepresentation or engaging in unfair or deceptive business practices;
• details of any bankruptcy or insolvency proceedings, any part of which took place during the 6-year period immediately preceding the date of the disclosure document.

Required information about the franchise

• costs of establishing the franchise and other fees;
• the franchisor’s policies and practices, if any, regarding guarantees and security interests required of franchisees;
• estimate of operating costs;
• earnings projection;
• the terms and conditions of any financing arrangements that the franchisor offers;
• a description of any training offered to the franchisee by or on behalf of the franchisor;
• if the franchisee will be required to operate in accordance with manuals provided by the franchisor, the table of contents of each manual or information about where the manuals can be found;
• information about advertising, if the franchisee will be required to contribute to an advertising fund;
• purchase and sale restrictions;
• rebates, commissions, payments or other benefits;
• the franchisee’s rights to the territory, if there are any;
• trademarks and other proprietary rights;
• licences, registrations, authorizations and other permissions;
• a description of the extent to which the franchisee will be required to participate personally and directly in the operation of the franchise;
• a list of all the provisions in the franchise agreement that deal with the termination of the franchise agreement, the renewal of the franchise agreement and the transfer of the franchise.

Lists of franchisees, businesses and closures

• a list of all franchisees of the franchisor or of the franchisor’s affiliates that currently operate franchises in Canada of the same type as the franchise being offered, including the name, business address and telephone number of each franchisee;
• a list of all businesses of the same type as the franchise being offered that the franchisor or the franchisor’s affiliates currently operate in Canada, including the name and business address of each business;
• a list of all former franchisees of the franchisor or of the franchisor’s affiliates that previously operated, in Canada and, if applicable, in any foreign jurisdiction;
• the total number of franchises in Canada of the franchisor or of the franchisor’s affiliates of the same type as the franchise being offered within the previous 3 fiscal years that have
  • been terminated or cancelled by the franchisor or the franchisor’s affiliates,
  • not been renewed by the franchisor or the franchisor’s affiliates,
  • been reacquired by the franchisor or the franchisor’s affiliates, or
  • not been renewed by the franchisee or otherwise left the franchise system.

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Family law in BC is governed by two different pieces of legislation. The federal Divorce Act (the “DA”) and BC’s Family Law Act (the “FLA”). The DA pertains to married spouses and the FLA is applicable to both married and common-law spouses and provides guidance about property division, parenting arrangements and support issues.

Who counts as a “spouse” in BC 

Under the FLA, people are spouses if they are married to one another or have lived in a marriage-like relationship for at least 2 years. For the purposes of the FLA, the term spouse includes a former spouse. The relationship between the spouses begins on the earlier of either the date on which they began to live together in a marriage-like relationship or the date of their marriage. Under the DA, people are only spouses if they are legally married to each other. In certain circumstances, a former spouse may be included under the definition of spouse for the purposes of the DA.

Property division basics 

Under the FLA, spouses are both entitled to family property and responsible for family debt and, on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common and is equally responsible for family debt. Family property on the date the spouses separate includes property that is owned by at least one spouse, or a beneficial interest of at least one spouse in property.

Property excluded from family property includes

• property acquired by a spouse before the relationship between the spouses began;
• inheritances to a spouse;
• gifts to a spouse from a third party;
• a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for loss to both spouses, or lost income of a spouse;
• money paid or payable under an insurance policy;
• excluded property that is held in trust for the benefit of a spouse;
• a spouse’s beneficial interest in property held in a discretionary trust to which the spouse did not contribute, and that is settled by a person other than the spouse;
• property derived from excluded property or the disposition of excluded property.

Parenting arrangements 

In family law there has been a shift away from using language like “custody” or “access” and a move towards using neutral language like “parenting time” and “parental responsibilities”. Under the FLA, parenting arrangements or contact with a child must be decided based on the consideration of the best interests of the child only. Only a guardian may have parental responsibilities and parenting time with a child. Generally, if a child’s parents are living together and they separate, each parent of the child is the child’s guardian. A parent who has never resided with their child is typically not the child’s guardian unless the parent and all the child’s guardians make an agreement providing that the parent is also a guardian, or the parent regularly cares for the child. If a child’s guardian and a person who is not the child’s guardian marry or enter into a marriage-like relationship, the person does not become a guardian of that child only because of the marriage or marriage-like relationship.

Child and spousal support basics

Child and spousal support can be granted under the DA or the FLA. Under the DA, child and spousal support can be granted if a court, on application by either or both spouses, makes an order requiring a spouse to pay the support. The federal Child Support Guidelines dictate the amount of child support to be paid and the circumstances in which discretion may be used in the making of an order for child support, in addition to authorizing courts to make other determinations. These federal child support guidelines also address the determination of income and authorize a court to impute income for the purposes of the application of the guidelines. In making a determination about spousal support the court will look at factors such as the length of time the spouses cohabited; the duties of each spouse during cohabitation; and any order, agreement or arrangement relating to support of either spouse.

Under the FLA, each parent and guardian of a child has a duty to provide support for the child, unless the child is a spouse or is under 19 and has voluntarily withdrawn from the parents’ or guardians’ charge for reasons other than family violence. A stepparent does not have to provide child support for a child unless the stepparent contributed to the support of the child for at least one year. A child support agreement is only binding if the agreement is made after separation, or when the parties are about to separate. A court must at least consider the federal child support guidelines when making a determination about the amount of child support. When making a decision regarding spousal support, the court must consider the conditions, means, needs and other circumstances of each spouse. This includes the length of time the spouses lived together, the functions performed by each spouse during the period they lived together, and an agreement between the spouses relating to the support of either spouse.

Why “DIY” separation agreements are risky 

Separation agreements drawn up and entered into by parties without consultation with a lawyer are risky because the court may set them aside if they are not adequate. One example of this is, under the FLA, property division agreements may be set aside if the court finds that a spouse did not disclose property or debts, took advantage of the other spouse’s vulnerability, or did not understand the nature of the agreement.

The post Separation And Divorce In BC: Property, Parenting Time, And Support Basics appeared first on Nanaimo Law | Heath Law.

How boundaries are legally determined 

Land registered with the Land Title and Survey Authority (“LTSA”) will have a legal description and survey plans, which set out the exact boundaries of your property. Information about these records can easily be accessed through the LTSA website. Encroachments, meaning physical objects put on your property by your neighbour, don’t create ownership rights in BC. Adverse possession is when a person acquires rights to a piece of land by using it openly for a given amount of time, without the legal owner stopping them. This is NOT the law in BC, although it may be elsewhere. BC abolished adverse possession against registered titleholders long ago.

The role of a BC Land Surveyor 

If there is a dispute about where a property line is, the first professional you should contact is a surveyor, not a lawyer. A surveyor will be able to determine the boundaries of your property. If the surveyor is unable to determine the existing boundaries, they will investigate and establish where the property lines should be.

Encroachments 

BC’s Property Law Act governs what should happen to land which is subject to an encroachment. If your neighbour has put a fence, shed, or driveway on your side of the property line, there are a few different things which may happen. The court can order, on application, that the owner of the land has an easement on the land encroached, vest title to the land encroached on in the owner of the land encroaching (on making the compensation that the court determines), or order the owner to remove the encroachment or the fence so that it no longer encroaches on any part of the adjoining land.

Trees and Fences

A landowner has the right to trim branches and roots that cross onto their property up to the property line, given that they do not enter onto their neighbour’s land or trim branches or roots on their neighbour’s property. When a tree is growing on the boundary line it is considered jointly owned between the neighbours. Due to this joint ownership, one neighbour cannot remove or destroy the tree without the consent of the other neighbour or legal grounds to do so. There is no general BC statute forcing cost-sharing of boundary fences (unlike some other provinces), so fences typically come down to an agreement between the neighbours or local bylaws.

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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.

The post Is This Defamation? Understanding Defamation Law In BC appeared first on Nanaimo Law | Heath Law.

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.

The post How Does The Principal Residence Exemption Affect Spouses appeared first on Nanaimo Law | Heath Law.

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.).

The post Do I Actually Need A Lawyer For Small Claims In BC? appeared first on Nanaimo Law | Heath Law.

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.

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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.

The post Can I Get Out of a Contract in BC? appeared first on Nanaimo Law | Heath Law.

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.

The post Does a Named Beneficiary Automatically Inherit your TFSA, RRSP, RRIF or FHSA? Not Always in BC appeared first on Nanaimo Law | Heath Law.

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.

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