Indian Act & common law result in case being dismissed

, ,

The Deceased, a member of the Okanagan Indian Band, left a will dividing the residue of his estate between five people, some of whom were not members of the Band.  Part of the estate consisted of interests in properties within the Okanagan Indian Reserve.  The beneficiaries reached an agreement between themselves providing for the sharing of income generated from the Reserve properties.  After many years, disputes arose between the member and non-member beneficiaries, and the member beneficiaries were sued for breaching the agreement.  Andrew Powell, with Tom Christensen, argued successfully that the agreement was void and unenforceable for offending the Indian Act and the common law, resulting in the case against their clients being dismissed.
Casimir v. Parker, 2019 BCSC 939 (June 12, 2019)

The Ironically Named “Minor Injury Cap”

, ,

As of April 1, 2019 the BC NDP government has brought into force legislative changes to the way motor vehicle accident claims are handled in British Columbia.
Under our old civil law system a person injured in a motor vehicle accident was entitled to claim for losses he/she suffered due to the negligence of the other driver.  This included damages for pain and suffering, income loss and rehabilitation expenses.  This concept has been around for hundreds of years and is focused on making the victim “whole.”  Each aspect of the victims claimed loss had to be proven based on the rules of evidence.  The majority of such claims would settle / resolve prior to going to trial on a compromised basis.  In fact, the majority of claims were so small that they would resolve directly between the accident victim and the insurance adjuster without any involvement of lawyers at all. 
This system was effective and fair for most years and ICBC was profitable.  It was a cash cow for many BC governments who sucked billions of dollars out of the company into general tax revenues.  In the recent past, in part due to mismanagement within ICBC, losses began to pile up.  The NDP has blamed personal injury lawyers for this sad state of affairs.  This has given the NDP government a reason to put into effect massive changes, influenced by the bureaucrats running ICBC.
This new program, effective as of April 1, 2019, has been masterfully marketed as a new system to process just the “minor claims” effectively and without the need for lawyers.  Such minor claims can only receive a maximum of $5,500.00 for pain and suffering.  Any other claimed losses associated with the minor injury would be decided by an online adjudicator, without an in person hearing and no set rules of evidence. 
On learning of the details of this new online means of “rough justice” for minor claims, I would suspect most people wouldn’t be too alarmed.  After all, this only applies to minor claims.  How much loss and damage could arise from an accident where the victim has suffered bruising or a sprain or slight whiplash that has resolved after a few months?  I would suspect public sentiment supports that such minor claims should be resolved online and free up our courts for more substantial claims that deserve our full justice system.  It all sounds reasonable…
Well here is where the masterful marketing comes in.  What is being promoted to BC citizens as a “minor injury cap” system, is really a means to prevent 80% of all BC motor vehicle accident claims from proceeding to our civil courts.  In other words ALMOST EVERYTHING IS A MINOR INJURY!  The new legislation is difficult to decipher, but it appears to define a minor injury as; any abrasion, contusion, laceration, sprain or strain; pain syndrome; or any psychological or psychiatric condition; unless it can be shown that that condition has resulted in a serious impairment or permanent serious disfiguration.  A serious impairment means that the condition lasts greater than 12 month; that the accident victim cannot do the essential tasks of employment or study (despite accommodation); and the condition is not expected to improve substantially.  The legislation also identifies any whiplash injury, TMJ (jaw) injury, or a concussion (that does not result in incapacity) as being automatically a minor injury.
Based on the above definition of minor injury, it would appear that there will be very few injuries that do not meet that definition.  Most injuries will heal within 12 months, and it is the continuing chronic pain that is so disabling and interfering in victims’ lives.   For instance, if you have a chronic pain syndrome arising from soft tissue injuries received in an accident, (not whiplash as those are automatically considered minor) even if those injuries continue well past 12 months, it will be considered minor if your employer can accommodate you at work.  It will also be considered minor if your doctor is of the view that in the future through rehabilitation, there will be improvement.  In my experience as a personal injury lawyer for over 20 years, most injuries that have resulted in a chronic pain syndrome would allow the accident victim to still perform some of his / her work duties, (albeit pain) and typically have a prognosis that the condition may improve in the future through various recommended attempts at rehabilitation.  Such injuries can be devastating for people and can last a very long time.  Under this new regime, such claims will be considered minor.  In fact most claims will be categorized as such.  This will mean that such accident victims will be subject to the online adjudication through what is called the Civil Resolution Tribunal (CRT), and will not be able to seek fair compensation through our courts.  This is a massive change which B.C. public is currently unaware.
Unfortunately, this system of “minor injury caps” is a prime example of government double speak.  The government will say that this new regime that is now in place since April 1, 2019 only applies to minor injuries, what they haven’t told you is that…ALMOST EVERYTHING IS A MINOR INJURY!
 
James Cotter has been a trial lawyer for over 23 years, practicing in Personal Injury, Wills & Estates Litigation, Civil Litigation, Municipal and Health Law.

Variation of a will results in an increased inheritance

, ,

Andrew filed an action for the variation of a will on behalf of the child of a deceased: the child was one of four beneficiaries, was not in regular contact with the deceased, and had been left a sizeable inheritance already; however following examinations for discovery we were able to settle the matter and increased the inheritance to approximately 35% of the estate of the deceased.

Evidence confimed they were spouses

, ,

Andrew represented a bereaved woman whose relationship status with respect to a deceased man was challenged by the deceased’s family: they said that she was not his common law spouse, citing that she had a home in a different city, had been seeing the deceased only informally for a relatively short period of time, and that their many electronic communications indicated that the pair did not consider themselves as spouses and were not living together as spouses.  Against that, we were able to provide evidence of their relationship that indicated that the pair did consider themselves as spouses and would be found as such by law.  We were able to settle the matter on behalf of our client, receiving an award of approximately 50% of the estate.

Deaths in the Home, Hauntings, or Possessed Properties: Do you have to tell?

, ,

Written by: Andrew Powell, Partner
People often ask if there is any obligation on the part of the seller of a house to advise potential buyers that someone has died in the house; there may even be a sincerely-held belief that the house is haunted by a deceased person, or that the property is subject to a malevolent supernatural presence.  If so, do you have an obligation to disclose it?
Legally, probably not. 
Disclosure obligations relate to defects or qualities of a property that are fairly objective.  Patent defects require no disclosure, because they are obvious; latent defects are those that are not discoverable upon a reasonable investigation by the buyer.  If there are latent defects that directly relate to the intrinsic quality of the building or property which, objectively, materially affect the property’s use or value, then those must be disclosed.  Material defects are those that affect whether a property is dangerous or unfit for habitation. 
And therein lies the question.  There can be several qualities of a property which are not immediately apparent upon investigation, but which can nevertheless possibly affect the value of the property.   These qualities are called “stigma”.  
 Despite being subjective, stigma can be significant.  In order to lessen the stigmatic effect, for instance, the house in St. Catharines, Ontario, in which Paul Bernardo committed his assaults and murders had to be demolished by its owners.  A new home was constructed and was given a different street address, all in order to eradicate its association with Bernardo.
So stigma is real — but does the fact of a death, even a reported haunting, count as a latent defect, such that it must be disclosed?
The question has come under the consideration of the Courts a number of times, and the courts have usually held that stigma need not be disclosed.   In 1784773 Ontario Inc. v. K-W Labour Assn Inc, [2013] ONSC 5401, the Ontario Superior Court of Justice directly addressed the question:  if a property is haunted, does that fact need to be disclosed to a purchaser?  According to that court, it turns out the answer is “no”.  Having a ghost in the house is not a latent defect.
The case was appealed:  [2014] ONCA 288.  The Ontario Court of Appeal agreed with the Superior Court, adding: “there is no direct evidence of economic loss or damage as a result of the stigma of a haunted property, nor is there any direct evidence from anyone who observed any strange occurrences in the property.”  Hence, it may just be a question of having enough evidence.  If you can prove that the stigma, in that case a ghost, is actually causing or threatening harm, then you need to disclose it like any other latent defect.  If on the other hand it is friendly or harmless, you don’t.
 In the Real Estate Council of British Columbia’s Professional Standards manual, duties of disclosure are considered for “stigmatized” properties; these properties include (but are not limited to):
• Properties located in neighbourhoods where a sexual offender is reported to live;
• Properties formerly occupied by a member of a criminal organization or gang; and
• Properties that are reportedly haunted.

According to the manual, stigma do not affect the “appearance, function or use of the property”, but rather affect the psychological value of it based on the beliefs or background of the property owner.  Stigma are therefore not material latent defects.  However, the manual acknowledges that existence of certain stigma may still have serious impacts on the value of the property to certain buyers.  Therefore the manual advises that although there is no direct obligation to disclose stigma, the best practice for an agent is as follows:

— When asked by their client, a buyer’s agent must make the appropriate inquiries.
— When asked about the possible existence of stigmas that might affect the property the seller, or licensees representing the seller, may:
a) answer the question directly; or
b) decline to answer the question and advise the buyer to conduct their own investigation.

Sellers and their licensees who choose to answer such questions are expected to use reasonable skill and care to ensure the accuracy and completeness of the information provided to buyers.
It seems though that despite the lack of a specific legal obligation, a safer practice and one which would avoid risky lawsuits would be to err on the side of disclosure, especially if there is any concern that the particular buyer would be sensitive to the particular stigma associated with the property

Full ownership of property received

, ,

Andrew represented the widow of a man who died leaving her all his property, which was a very significant amount of land.  The Deceased’s siblings sued, arguing that in fact the man had not owned the property, but rather had held in trust for them for decades, following the death of their own parents.  They argued that they had transferred their rights in the property to the deceased many years previously, and that a trust resulted from that transfer.  At trial, we argued that if there was any transfer at all, it was not one that could be impressed with a trust.  We succeeded at trial, and the widow received full ownership of the property at issue.

Petitioners Seek to Have Logging Cutting Permit Quashed

,

Penner v. British Columbia (Forests, Lands and Natural Resource Operations)
We represent Sechelt Community Projects Inc which operates as Sechelt Community Forest (SCF).  SCF complied with all regulatory and procedural steps to obtain a cutting permit which allowed them to harvest timber on the lower slopes of Mt. Elphinstone.  The Petitioners, Messr’s Muirhead and Penner and Ms. Bloom call themselves Elphinstone Logging Focus and have been trying to have a Provincial Park on Mt. Elphinstone expanded to include areas within SCF’s logging tenure.  They are very active in opposing logging in this area.  Their opposition has previously been limited to blockades.  In this case they decided to attack the legislative authority for logging by saying that the Ministry of Forests District Manager’s decision to grant the cutting permit in question was issued without proper consultation with the community and in particular ELF.  They sought to have the cutting permit quashed and an injunction preventing further logging.
ELF was initially successful in obtaining an injunction to prevent logging but when they refused to give an undertaking as to damages as required by the Rules of Court their injunction was lifted and logging continued. 
At the hearing we argued that there was no obligation to consult and that the Petitioners could not effectively rewrite the legislation to impose one.  Madame Justice Iyer agreed, dismissed the Petition and awarded costs to SCF.

To read the full court decision, click here.

Commercial Arbitration

,

Written by Kent Burnham, Partner
Many Contracts have a clause that says that disputes shall be resolved by arbitration and then make reference to the British Columbia Commercial Arbitration Act.  If this clause exists, or if the parties agree, the parties are able to have their dispute resolved by way of arbitration without the necessity of going through the entire Court process.
Arbitration is, essentially, a private judicial process whereby disputes are resolved by an appointed Arbitrator instead of a Judge.  The Arbitrator’s decision is in accordance with established law.
In its simplest description, arbitration is effectively hiring a private judge to hear the dispute and make a binding decision.  It can be much more complex than that as the parties can agree on the extent to which the Rules of Court apply, how much or how little evidence will be given by way of written statements, oral evidence, the extent of cross-examination, or even how rigidly the Rules of Evidence will apply.  The parties can incorporate other rules or values upon which they agree or by which their business, trade, or profession is governed.  The Arbitrator assists the parties in agreeing to the parameters by which they will resolve their dispute.  Once they are agreed upon, the process is very similar to the usual Court process with the parties presenting their cases, being submitted to cross-examination or some other test of the evidence, each party having an opportunity to present their argument, and then the decision being rendered by the Arbitrator.
Arbitral awards can be subject to appeal, or the parties can agree to have the one decision be final.
If there is improper conduct on the part of the Arbitrator, it is always reviewable by the Courts and, as a general rule the Courts have the jurisdiction to review decisions where there has been an error in law.
Arbitration is not inexpensive.  It is, however, more accessible to the parties and can be structured in such a manner as to proceed more quickly than matters would through the Courts.  It allows for the parties to select a decision maker (the “Arbitrator”) or a panel of decision makers (the “Tribunal”) in whom they have confidence and who have special knowledge of the kind of claim being arbitrated.
With the increasing costs of litigation and the inaccessibility of the Courts due to overbooking and too few judges, arbitration is an option that should be considered to resolve commercial disputes.  It permits a flexibility unknown to the Court and allows  resolutions to be fashioned in a matter that best serves the parties’ interests.  Properly prepared and organized, the Rules of Court and Rules of Evidence can be utilized to their best advantage and a decision maker selected that provides consistency and predictability.
If you are involved in a legal dispute, consider and discuss the possibility of resolving it through arbitration with your lawyer.

Ciarniello v. James, 2015 BCSC 2148

,

Wills variation claim.

#301-2706 30th Avenue
Vernon, B.C. Canada V1T 2B6

Get Directions

Hours: 8:00 am to 4:30 pm
Monday to Friday

Wheelchair Accessible

Telephone: 250-542-5353
Toll-Free: 1-800-243-5353
Fax: 250-542-7273