Litigation Archives - Nixon Wenger LLP

Deceased does not mean debt free

You may be forgiven for thinking that, once you pass away, your earthly cares are over. In British Columbia, however, the mere fact that you have died will not necessarily save you from being sued.

Many causes of action will survive the death of a defendant. If you die owing money, then that debt is still owing, and still collectible from your estate after your death. Your creditor’s security will still be sound, and your estate will have to either pay the bill or risk judgment and collections.

Actions against a deceased person are governed by Rule 20-6 of the Supreme Court Rules and by s.150 of the Wills, Estates and Succession Act. Rule 20-6 provides instruction for how person with a claim against a deceased person may bring that claim against the deceased’s estate. If there is no personal representative, then the claimant may apply to have a litigation guardian appointed for the estate in order for there to be someone to sue; or, the claimant may apply to permit the matter to proceed in the absence of a personal representative of the estate.

But there is an easier way.

Notwithstanding Rule 20-6, there is specific statutory authority to bring actions against the estates of deceased people, whether the estates are being actively administered or not: you may simply sue the deceased person in their own name.

Section 150 of the Wills, Estates and Succession Act (called “WESA”) provides authority for proceedings taken by or against estates. After confirming, in subsection (1), that the death of a party will not annul a legal proceeding, the section provides as follows:
150 (5) A person may commence or continue a proceeding against a deceased person that could have been commenced or continued against the deceased person if living, whether or not a personal representative has been appointed for the deceased person.
(6) A proceeding under subsection (5) may be commenced naming as defendant or respondent
(a) the personal representative, if any, or
(b) the deceased person.
(7) A proceeding under subsection (5) in which the deceased person is named as defendant or respondent is valid despite the fact that the deceased person is not living when the action or proceeding is commenced.
(8) All proceedings under this section bind the estate of the deceased person, despite any previous or subsequent appointment of a personal representative.

In other words, you can take action directly against a deceased person, by suing them in their own name.

I have personally used this section to start proceedings against people who have passed away but whose estates were not being administered by executors. It is simple to start the proceeding, and requires no application. However, when the time eventually comes to serve documents on the deceased person, then you can run into some tricky business. It will not do to simply affix your documents to the cemetery gate. You will have to find an alternate service method somehow – for instance by applying to serve the people who might be expected to benefit from the estate.

So deceased people can be sued, certainly. But they can also sue. Estate representatives are entitled to bring actions in the name of the deceased. Section 150 of WESA also provides:

“Subject to this section, the personal representative of a deceased person may commence or continue a proceeding the deceased person could have commenced or continued, with the same rights and remedies to which the deceased person would have been entitled, if living.”

There are statutory and common law restrictions to the right to sue on behalf of a deceased person. You can still sue for money owed or for the return of property, so your estate’s financial claims will be available. But an estate cannot sue for libel, or for breach of privacy. An estate cannot claim remedies for breaches of Charter rights or human rights, and cannot collect punitive or aggravated damages. In short: money actions are permitted, but all those types of actions that reward damages for pain and suffering, indignity, and hurt feelings are no longer available as claims.

The law, it appears, assumes that once you have died, you are strictly business, and no longer take things personally.
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.

October 2, 2020

How does Occupiers Liability apply during the COVID-19 pandemic?

Real Estate, Business Law, Litigation, Blog

In British Columbia, the Occupiers Liability Act, RSBC 1996 c 337, sets out the legal obligations that occupiers owe to people visiting their premises. Occupiers can be individuals or businesses who are in physical control of the premises, or those who have responsibility for, and control over, the condition of the premises, the activities conducted on the premises, and who is allowed to enter the premises. This can include business owners, landlords, tenants, and home owners.
Occupiers owe a legal duty to ensure visitors are reasonably safe in using their premises. This duty applies to the condition of the premises, activities on the premises, or conduct of others on the premises. It is important to note that there are many factors to assess when determining where the responsibility falls in the event of injury or loss. How far this duty extends will depend on the circumstances of each situation.
You may be wondering: how does this apply during a pandemic and the current context of COVID-19?
Generally, the liability of occupiers remains the same. However, be aware that occupiers may be found liable for the spread of the virus at their premises. If an occupier fails to take reasonable care to respond after a person known to have been infected with COVID-19 attended the premises, the occupier may well have breached its legal obligations under the Occupiers Liability Act.
Reasonable response efforts to ensure the safety of visitors may include:
•    immediate sterilization of the premises;
•    closure of the premises during sterilization efforts; and
•    clear and timely warnings to visitors and employees.

It is important for occupiers not to ignore applicable privacy laws in these circumstances. While appropriate information may need to be shared, specific names should not be released.

Occupiers should also consider having a formal COVID-19 plan in place that sets out response efforts in the event of virus exposure.

We stress that all cases are fact specific. The information above is intended to provide some guidance during these uncertain times. You should obtain legal advice specific to your situation if you have had a potential exposure at your premises or if you have been exposed to the virus while attending premises.

Allison is an Associate in the Civil Litigation practice group at Nixon Wenger LLP. She has a general civil and commercial litigation practice, with an emphasis on tort related disputes, contract disputes, personal injury litigation, employment matters, and maritime, shipping, and environmental law. Allison has represented clients at all levels of court in British Columbia, and works with her clients to find solutions that work best for them within the litigation process.

April 9, 2020

Force majeure: Can Covid 19 release you from your contract obligations?

Real Estate, Business Law, Employment Law, Litigation, Blog

Under general principals of contract law, a party has a defense against performing under a contract where that performance becomes impossible due to unforeseeable events outside of the parties’ control. If disaster strikes, a non-performing party can resort to a claim of “force majeure”, sometimes called “acts of God”, to forgive them from living up to their responsibilities.

A pandemic can be one of those events. Some commonly listed force majeure events include natural disasters such as floods, earthquakes, or hurricanes; war; terrorist acts; government action such as expropriations or changes in laws; union activities such as strikes and slow-downs; shortages of necessary materials… and, if the contract provides for them, also epidemics and quarantines.

General economic conditions are not force majeure events. Governmental restrictions may qualify, if directly related to the force majeure event, and if they directly relate to the alleged breach of contract, but reduced demand and business are usually found to be more a fact of life than an act of God:

While relatively few cases have interpreted the impact of pandemic on force majeure clauses, previous cases do offer some guidance. Courts have found that generalized economic hardship or increase in expenses, without more, does not constitute a force majeure event. As a result, it will be difficult to avoid an obligation to purchase goods or services merely because customer demand has decreased. Also, even if an unforeseeable and extreme disaster occurs, a contract’s force majeure provision will still control with regard to the parties obligations and may override other common law defenses used to avoid performance. For this reason, it is imperative that companies read contracts closely, or consider engaging counsel, to determine what rights they have before acting (or not acting) on a contract. Finally, courts are split as to whether intervening governmental acts (such as changes of regulations, emergency declarations, etc.) will excuse performance under contract, but the contract itself will still likely control as to which party bears the risk of the nonperformance.

National Law Review: COVID-19: Force Majere Event? March 19, 2020

If a contract’s force majeure clause includes terms such as “epidemic” or “quarantine” or “pandemic”, then the clause can be invoked during the current Covid-19 crisis to avoid living up to contractual responsibilities that have been rendered impossible. Even if a contract has a force majeure clause that does not include such terms, it may still be possible to defend against an action for breach relying on the force majeure clause, if the language of the clause is broad enough to encapsulate disasters such as pandemics.

However, in any case where such a clause is invoked, in order for the defense to work, the party invoking it must also show that they took steps to mitigate the damage and that full performance was truly impossible – together with any other contractual obligations that might be necessary to adhere to when invoking the clause.

If there is no force majeure clause at all, or if there is no reasonable way to bring the COVID-19 pandemic within the terms of the force majeure claus, then there still will be defenses to breach or non-performance on the commonlaw bases of impossibility or frustration of purpose.

All of these defenses are pretty strict. The general principle of contract law is that the parties to an agreement assume the risk of their own non-performance unless the contract itself says otherwise. In order to claim impossibility or frustration, the defending party has to show that the event offends, in a way that was unforeseen to the contracting parties, a foundational assumption of the agreement. For instance: if the subject matter of the contract turns out to be non-existent, then the contract will be impossible to perform. However, it is not a basic assumption of the parties that market conditions or financial situations will remain favourable to the parties.

In this case the event is a global pandemic. The problem with pandemics (well, one of the many problems with pandemics) is that they only indirectly affect businesses. A pandemic is not that kind of natural event that destroys infrastructure or physically prevents businesses from operating. Instead, it is the social and governmental response to the pandemic that has the effect of interfering with business viability. Laws that are changed to address it are laws of general application that only affect your ability to live up to your contracts.

At the end of the day: contracts are enforceable. Rent is payable. If rent is not paid, that is a breach of contract. Force majeure is a defense available to a claim for that breach. As identified above, general economic effects do not constitute a force majeure event.

Unless the contract specifically defines pandemic as a force-majeure escape hatch, it seems unlikely that it would be considered one.

However, the global nature of the coronavirus crisis lends itself to other practical considerations. Unless there are particular circumstances that are quite significantly different than those being faced by most businesses today, it may not be in anyone’s business interests to force strict compliance with contracts right now. After all, if all contracts are strictly enforced, that may have uncomfortable effects on the very parties who insist on strict enforcement:

As the COVID-19 pandemic continues to develop, businesses should take proactive steps to ensure continuity of operations sufficient to meet existing contractual obligations and evaluate whether their counterparties are doing the same. If companies expect that COVID-19 may result in their own or their counterparties’ inability to satisfy contractual obligations, they should assess the viability of either force majeure or common law principles of nonperformance excusal. This assessment may also be rendered more complicated by the fact that many companies will be on both sides of this issue, as the performing party in some cases or the receiving party in others… Businesses may wish to avail themselves of a force majeure clause or the common law principles in connection with certain contracts, but resist such a claim by their counterparties to other contracts. Companies will therefore need to be mindful of the broader implications of asserting these provisions and principles.

P.Weiss: Force Majeure under the coronavirus Pandemic: March 16, 2020

COVID-19 related contract breaches will cut in all directions. If you insist on strict compliance with others, they may insist on strict compliance with you.
Andrew Powell practices a wide range of civil litigation with a focus on business or commercial disputes, including breach of contract, lease and land use issues, corporate disputes including liquidations and shareholder issues, and realization and enforcement. Andrew also practices estate litigation, including wills variation claims.

March 28, 2020

Employment Issues During COVID-19

Business Law, Employment Law, Litigation, Blog

The COVID-19 pandemic has created unprecedented circumstances for Employers and Employees. Many people have questions with respect to their rights as Employers and Employees, and, particularly for Employers, potential liabilities.

The British Columbia Employment Standards Act sets out minimum standards that employers must adhere to. COVID-19 does not change or suspend statutory rights or obligations. Failure to adhere to these standards may result in claims against Employers and even personal liability for directors and owners of companies. Being pro-active and getting good advice now can help avoid problems and encourage creative and pro-active solutions to preserve goodwill and morale in the workplace, and to make the best of a bad situation for all.

Don’t be fooled by one size fits all solutions. Each situation is different and requires careful review and planning.

Don’t get caught out. Call for assistance.

March 27, 2020

COVID-19, Child Support and Layoffs

Family Law, Employment Law, Litigation, Blog

When parents separate, their children are entitled to child support. The Child Support Guidelines set out how child support is determined.

The amount of child support depends on the income of the parent who pays the support, or both parents’ incomes if they share time with the children. If income goes up, or down, normally this will result in an adjustment to child support payments.

What Happens to Child Support if the Parent Paying Child Support Loses His / Her Employment?

The COVID-19 pandemic has had a significant impact on all of our lives. Most sectors of the economy have been affected and many businesses and employees will face a significant decrease in earnings.

So, what happens if a parent is laid off or terminated from their job during the COVID-19 pandemic but has been paying child support?

All parents in British Columbia should be aware that as of March 20, 2020 the various courts in this province have suspended regular operations. Accordingly, child support disputes likely will not be heard by the courts until they resume regular operations following the COVID-19 pandemic. Thus, parents are encouraged to find a workable solution to any child support disputes during this time.

If you are paying child support and find yourself laid off or terminated from your employment, the best course of action is to immediately inform the other parent. Be open and transparent and let them know if you will be receiving any of the benefits offered by the provincial or federal government, such as employment insurance. Try to find a mutually agreeable solution so that you can still pay some support rather than stopping support altogether.

If you are paying support payments to the Family Maintenance Enforcement Program (FMEP), also inform them if your employment status changes. On March 19, 2020, FMEP posted the following update on its website in regards to the COVID-19 pandemic:

“If you are a payor, we acknowledge you may have difficulty [during the COVID-19 pandemic] paying your full amount of maintenance that is due. You are, however, still required to pay the maintenance owing under your order or agreement. If you are unable to make full payments it is very important that you contact us by signing into your web account and sending a web message …” https://www.fmep.gov.bc.ca/whats-new/

If you are concerned about paying or receiving child support payments, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward in this uncertain time.

Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.

March 24, 2020

Impacts of COVID-19 on Parenting and Custody Matters

Family Law, Litigation, Blog

The COVID-19 pandemic has caused unprecedented levels of uncertainty in all aspects of our lives, including in the operation of our courts. As of March 20th, the various courts in British Columbia have suspended most of their operations.

Currently, the courts in BC are only hearing essential and urgent matters. These matters include issues relating to the safety of a child or parent due to a risk of violence; wrongful removal of a child from a jurisdiction; or matters relating to the well being of a child. All other matters are suspended and will not be heard by the courts until at least May, 2020.

My ex and I share time with our child – what can we do in an age of “social distancing”?

For most of us, the phrase “social distancing” didn’t exist until a few weeks ago. It’s now become our reality.

If you and your ex spouse have kids and share them between your two homes, what do you do? Do you exchange the kids between two houses? Do you send the kids to your ex’s house? Should you protest if your ex won’t send the kids to spend time with you?

The only clear answer is that there isn’t a clear answer. Each case will be dependent on your specific circumstances.

The best approach parents can take is to consider only the best interests of the kids. In fact, this is the only thing a court will consider when deciding an appropriate parenting arrangement. Section 37 of the British Columbia Family Law Act sets out a number of factors a court must consider when deciding what is in the best interests of a child. The most important factors in light of the COVID-19 outbreak are:

• the child’s health and emotional well-being;
• the ability of each person … who has parenting time or contact with the child, to exercise his or her responsibilities;

Although the COVID-19 pandemic is new, courts in BC have considered the issue of when a parent has a contagious virus and seeks parenting time with a child. In D.M.M. v. D.F., 2015 BCPC 0310, the father previously had the Hepatitis C virus and the evidence at trial showed he did not take sufficient care of his hygiene such that his daughter may have been exposed. The father said he had recovered from the virus but the court said “while his freedom from the virus is obviously very good news, I remain concerned about [his] attitude towards [the daughter’s] safety, since he was contagious at the time he was with her.” (para 72). This finding, among other findings at trial, resulted in an order that the mother have primary care of the daughter.

Thus, it is imperative that parents take all precautions and follow the advice from governments and health authorities during the COVID-19 pandemic. Our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to move forward in this uncertain time.
Darren maintains a broad practice in family law including divorce, common law separation, division of assets, parenting, custody, mobility/relocation, and child and spousal support. His diverse litigation background serves him well when acting for clients in more complex family law disputes. Darren always strives to provide tailored, down-to-earth advice for his clients.

March 20, 2020

It’s time to privatize auto insurance in BC!

Personal Injury, Litigation, Blog

The vast majority of British Columbians are sick and tired of ICBC and its excuses. We have been through a year of ICBC blaming claimants, the courts and lawyers for its allegedly poor financial performance. At the same time insiders of ICBC have publicly said that there was no “financial mess” and that the corporation was actually going to make a profit in 2018. ICBC used the excuse of financial performance to have the government change the legislation that applied to it so that it could unload costs onto private insurers and reduce claims costs by circumventing the law of damages with an injury cap. And after doing that ICBC significantly raised rates for everyone.

Over the last few years in my practice as a senior litigation lawyer I have dealt with ICBC on multiple claims where they have taken very unreasonable positions and caused matters to go to trial, only to cost the corporation hundreds of thousands of dollars more for a particular claim. In some cases millions of dollars more. Recently there was another example of this in a case that went to trial (and is now public record) called Bonneau v. Neate et al. The ICBC adjuster took a very unreasonable position on damages, even though liability was admitted, and refused to put any more money on the table to resolve the claim. The end result was that ICBC paid over $100,000 more than it could have resolved the claim for, and also will have to pay double costs on top of that. The Supreme Court rules provide for an increase in costs where a party unreasonably failed to accept a reasonable offer to resolve the claim. In the last few years the number of claims where ICBC has taken a similar position has increased significantly. It appears to be an intentional plan to run up the costs and the only conclusion one can reach is that they’re doing so because they have easy targets to blame: claimants, or injured people, the courts and of course lawyers. It also allows them to hide their poor business practices because they can blame others and not take responsibility for their failed performance.

All of this supports the need to privatize auto insurance in British Columbia and get rid of the ICBC monopoly. At the end of the day, ICBC as a monopoly is just another form of indirect taxation of consumers in British Columbia. The profits it has made over the years has gone to the government’s general revenues and not been kept in the corporation. Both main political parties are guilty of this. The politicians do ICBC’s bidding to cover up its inefficient business practices and give it more tools to take away the rights of injured people in B.C. and so there’s no solution politically between either of the parties. The simple reality is ICBC should be privatized and an open market for competition for auto insurance should be in place in British Columbia. It works in other jurisdictions in Canada to lower auto insurance premiums; it should happen here.
Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

November 17, 2019

More ICBC Misinformation…

Personal Injury, Litigation, Blog

A recent court decision by Chief Justice Hinkson where the government’s unilateral changes to the Supreme Court Rules without the usual consultation with the legal profession and the judiciary was found unconstitutional has resulted in more political rhetoric, ICBC excuses and misinformation. The Attorney General David Eby responded to the ruling by alleging that the government would now be out $400 million in revenue and would no longer have a surplus. He also alleged that ICBC paid out $1.9 billion to law firms (as part of a smear tactic to mislead the public as to lawyers and judges being the problem, not the actions of ICBC!). We pay taxes to the government to fund it’s operations; to suggest that a court case means no government surplus is absurd and exposes the real basis for ICBC: indirect taxation!

This misinformation has to stop. ICBC’s own employees have said there is no dumpster fire at ICBC and that the losses claimed are not correct. ICBC regularly uses “numbers” it creates to lobby the government to do it’s bidding. For example, within the last year magically creating almost $700 million in “estimates for losses” with a stroke of a pen (by re-assessing claim exposures – allowing it to adjust up an exposure to create a picture of more financial loss). From the last financial statement published by ICBC in March of 2019, it has an arbitrary “change in estimates for losses” of over $1.2 billion. It also notes that it’s revenues are nearly $6 billion dollars with total assets of over $16 billion….yet it claims that law firms were paid $1.9 billion with the impression that they are sucking the corporation dry! This is simply misinformation to deflect responsibility! Neither Eby or ICBC have told you that litigated claims with law firms representing plaintiffs is only a small proportion of the claims it pays out in any given year; this isn’t stated because they want the public to blame lawyers, judges and injured people for the high cost of premiums and not tell you the real truth of it’s financial operation. ICBC doesn’t tell you how it has created millions and millions of unnecessary extra costs by refusing to deal fairly with claims; running claims to trial that should resolve and costing the corporation significant extra costs. I have many clear examples of this, in particular with two claims within the last year that went to trial; ICBC’s refusal to consider fair offers to resolve the claims has resulted in over $600,000.00 in unnecessary expense for the Corporation. That is only on two claims, there are many more examples of the same thing and it happens all the time. Right now ICBC’s strategy is to run every claim to trial to increase the costs to help continue the blame game and deflection of responsibility.

ICBC gets away with this because it is not accountable. It simply blames claimants, lawyers and judges…and doesn’t take responsibility. Ask yourself why we pay the highest rates in the country and why ICBC would lie about it’s financial performance? So it can continue to deflect responsibility and blame others… and carry on providing government with revenue that amounts to indirect taxation, while raising insurance rates.

Michael Yawney QC is a senior litigation partner at Nixon Wenger LLP, the North Okanagan’s largest law firm. He has been a member of the Association for Injured Motorcyclists (AIM) for many years, on the Board of Governors for the Trial Lawyers Association of British Columbia, is a member of the Canadian Bar Association and has represented many personal injury clients. The opinions expressed herein are the opinions of the writer and are based solely on his views and experience over the many years he has practiced personal injury law in British Columbia.

October 29, 2019

Builders Liens and Time Limits

Business Law, Litigation, Blog

Under the Builders Lien Act, contractors, sub-contractors, workers, and material suppliers are provided with two distinct types of liens. The first type of lien, known as a “builders lien” or a “lien against land”, is a lien against the land and buildings to which the construction professional have contributed labour or materials. The second type of lien, known as the Shimco lien (named after the case that first recognized such a lien in British Columbia) or the “holdback lien”, provides construction professionals with a lien against the holdback funds that should be retained by the person that is next highest in the construction pyramid (i.e. the funds that arise from the required deduction of 10% of the value or material as they are actually provided, or 10% of the amount of any payment made on account of the contract or subcontract).
The rights which flow from both the lien against land and the Shimco lien are powerful tools which enable unpaid construction professionals to seek compensation directly from the owner of the land to which they contributed labour or materials. However, there is a crucial catch: time limits must be respected in order for a construction professional to exercise these lien rights. If the time limits are not respected, lien rights are extinguished.
The Time Limits:
As a practical matter, if a construction professional has not provided any labour or materials to a construction site in 30 days, and payment has not yet been made by the owner, contractor, or subcontractor, that construction professional should consider having a conversation with his lawyer. As discussed below, for both legal and practical reasons, the process needed to exercise both a lien against land or a Shimco lien should be commenced as quickly as possible, as lien rights expire very quickly.
With respect to a traditonal builders lien / lien against land, the timelines that must be respected depend on whether the owner had hired a head contractor (meaning, a contractor that is engaged to perform substantially all of the construction work, or, in other words, a general contractor), whether there is an owner-developer or construction management relationship (i.e. the owner has direct contracts with all construction professionals), and whether the construction project is on a strata lot.
For contracts where the owner had hired a head contractor, construction professionals must file a document, entitled, “claim of lien”, with British Columbia’s Land Title Office, with respect to the land where materials or services were provided. The claim of lien document must be filed 45 days after the earliest of:
1. substantial completion of the head contract;

2. termination of the head contract;

3. abandonment of the head contract;

4. issuance of a certificate of completion for the head contract or any subcontract under which the construction professional had been retained; or

5. for strata lots, the date the strata lot is conveyed to the purchaser or the date that strata unit is occupied.
Similarly, where there is there is an owner-developer or construction management relationship, the claim of lien document must be filed 45 days after the earliest of:
1. substantial completion of the construction project;

2. abandonment of the construction project;

3. issuance of a certificate of completion for any contract or subcontract under which the construction professional had been retained; or

4. for strata lots, the date the strata lot is conveyed to the purchaser or the date that strata unit is occupied.

Though there are a variety of complications that arise from these timelines, the practical questions that should be asked are:
i) has a certificate of completion been issued (this will invariably be issued by a third party engineer or architect) with respect to any part of the project?
ii) has the general contractor completed, abandoned, or terminated its contract with the owner?
iii) has the construction project been completed or abandoned? and
iv) if dealing with a strata lot, has someone bought the lot is living in the unit?
If the answer to any of these questions is “yes”, and, as a construction professional, you are unpaid, your lien rights may be on the way to expiring, and you should quickly seek to speak with your lawyer.
Finally, even after a claim of lien document is filed, an action to enforce that claim of lien, along with an associated certificate of pending litigation, must be filed within one year of the filing of the claim of lien.
With respect to the Shimco lien, the Builders Lien Act provides no express timelines that must be satisfied. However, from a practical perspective, swiftness of foot in advancing the Shimco lien is critical, because the Shimco lien can only be advanced before holdback funds have been dispersed, and the strategic usefulness of the Shimco lien lies in the fact that it can be advanced even when the typical builders lien / lien against land has expired.
The law is quite clear that the Shimco lien is extinguished if the holdback funds have been disbursed before the lien is advanced. As stated by the British Columbia Court of Appeal, in Wah Fai Plumbing & Heating Inc. v. Ma, 2011 BCCA 26:
[40]           Shimco does not deal with these circumstances. Nor can the Act be interpreted to provide that where there is no holdback, or a holdback has been wrongfully paid out, a person whose land lien has been extinguished may later commence proceedings to enforce a lien against a nonexistent holdback.
[41]           The appellant argues there is no limitation in the Act for enforcing a lien against the holdback. It claims that proceedings to enforce a lien against a holdback may be commenced any time before the holdback is paid out, subject only to the six-year limitation period provided in s. 3(5) of the Limitation Act, R.S.B.C. 1996, c. 266. It argues further, citing s. 4(4) of the Limitation Act, that the amendment to the statement of claim in August 2006 to claim the holdback lien did not have the effect of commencing a new action, and its claim against the holdback should be considered to have arisen when it originally filed the writ and statement of claim in August 2002.
[42]           The appellant cites no authority for its suggestion that s. 4(4) of the Limitation Act should be given retroactive effect, and I see no basis in principle to so find in this case. In any event, it would not change the result: the appellant is not entitled to claim a lien against a nonexistent holdback.
Or, in other words, once the holdback funds are gone, they’re gone: The claim associated with the Shimco lien must be advanced before the holdback funds are paid out.
Considered together, the time limits associated with the liens provided under the Builders Lien Act are traps for the unwary. Whether considering a typical builders lien, or whether considering a Shimco lien, construction professionals have limited time to act to ensure that lien rights are not extinguished.
Christopher Hart is an Associate at Nixon Wenger LLP where he enjoys a wide ranging civil litigation practice, with a particular emphasis on estate litigation, commercial litigation, property litigation, and construction law.

August 28, 2019

Varying the will results in an increase to 50% of the estate

Family Law, Litigation, Decisions and Settlements

A property owner died leaving a will that provided for his common law spouse to receive, from his estate, only the increase in value of his property while the two were living together. This value amounted to a total of about 7% of the value of the man’s estate. Andrew sued to vary the will, alleging that given the history and nature of their relationship, she was entitled to much more as the spouse of the deceased. After a trial, the court agreed, and varied the will, increasing her share from approximately 7% to 50% of the estate.

June 27, 2019