A young man from North Vancouver was injured when he was rear ended while stopped in traffic. He suffered soft tissue injuries which required several months of physiotherapy and he missed some days of work. Mr. Yawney resolved his claim without a trial for $89,000.00 including costs.
Written by Krystin Kempton, Associate.
Airbnb is a website connecting people searching for short term accommodation with homeowners wishing to rent their homes or spare rooms. An increasingly popular alternative to hotels, Airbnb may bode well for many of us living in here paradise, as vacationers come to town for ski vacations in the winter and cottage life in the summer. Short term rentals—that is, rentals for less than 30 consecutive days—can lead to some extra pocket cash. However, that extra pocket cash leads to taxes.
First of all, rental income is added to regular income and is taxed at the same rate. It is in the homeowner’s best interest to put aside reserves to avoid unwelcome surprises when income taxes are due. Homeowners also need to be aware of goods and services tax (“GST”) implications. If rental income exceeds $30,000 in one year, the homeowner must register with Canada Customs and Revenue Agency. As a GST registrant, the homeowner is obligated to charge and remit GST and file returns. The homeowner may recover GST paid on operating expenses and capital improvements by claiming input tax credits (“ITCs”), based on the extent to which the property is used for taxable rentals.
If a homeowner uses his or her property for short term rentals and wishes to sell the property, it is important to determine whether GST will apply to the purchase of the property. GST is payable if:
– the seller has claimed ITCs for GST on the purchase of the property or improvements on the property;
– the property is used less than 50% of the time as the seller’s place of residence and all or substantially all (90% or more) of the rentals of the property are for periods of less than 60 days;
– the property is capital property (i.e., not designated as the owner’s primary residence and therefore subject to a capital gain or capital loss on disposition), and the property is used primarily in a rental-income business carried on by an individual or a personal trust with a reasonable expectation of profit and the owner is not a GST registrant; or
– the property is capital property and the property is used primarily in making taxable short-term rentals by an individual or a personal trust that is a GST registrant, even if that owner is not engaged in a business carried on with a reasonable expectation of profit.
If any of the above apply, the purchase contract for the property will need to specify whether GST is added to the purchase price or included in the purchase price to ensure the price has been negotiated properly by the buyer and seller and avoid lost revenue by the seller. If the purchaser is a GST registrant and intends to use the property for short term rentals, an ITC may be available to offset some or all of the GST payable on the property purchase. If the purchaser uses the property primarily (more than 50%) for personal use, that individual is not eligible to claim an ITC for GST paid or payable on the property purchase, even if there will be some taxable short term rentals of that property. Also, if the purchaser changes the use of the property to his or her personal use, the purchaser may be required to account for the GST.
Provided the homeowner is aware of tax obligations and implications of short term rentals on an eventual sale of the property, Airbnb offers a lucrative option for homeowners to offset mortgages and join the sharing economy.
A young woman from Salmon Arm suffered soft tissue injuries when her vehicle was rear ended on a residential street where snow plowing had not yet taken place. She was able to return to work in her sawmill job, but had some months of discomfort and difficulties managing work and home. Michael Yawney QC was able to resolve her claim without a trial for over $70,000.00 plus costs.
Written by Nixon Wenger Lawyer, Dan Poulin.
Not all contracts need to be written down or signed, an oral or spoken contract can generally be enforced by our court system, as long as there is enough evidence to convince the court that a contract actually existed. However, there are certain types of contracts which require that the parties sign the contract in order for it to be enforceable by our court system, such as Real Estate contracts. You may wonder whether a signature requirement means a person needs to put pen to paper, or if some kind of electronic signature would have the same effect. Further, you may wonder whether an electronic signature would be any more or less persuasive in court as proof that there actually was a contract.
First, electronic signatures have the same legal effect as handwritten signatures. Most provinces in Canada have passed legislation which clarifies that electronic signatures may be used, including the Electronic Transactions Act in British Columbia. This Act defines an electronic signature as “information in electronic form that a person has created or adopted in order to sign a record and that is in, attached to or associated with the record”. Therefore, an electronic signature does not need to look like a traditional signature, although sometimes images that have the appearance of a traditional signature are used.
The next question is whether an electronically signed document would be better or worse than a traditional signature if you needed to prove in court that a contract was signed. The answer is that neither electronic or traditional signatures are inherently better than the other, it depends on the circumstances in which the signature was made. For example, you may receive a contract document that appears to be signed by a person you expected to enter a contract with from a public fax service number. Alternatively, you may have the other party come to sign the contract document personally and also bring some other people to witness his signature. In the second scenario you would have much stronger proof that the other party entered the contract, as you would have the original document and people that could confirm the document was signed by the right person.
Similarly, some electronic signatures would be much better proof in court than others, as they can range from simply typing your name at the end of an email (which may not be very strong evidence, particularly if other people have access to your email) to verifiable digital signatures that can only be attached to electronic documents after the signor signs up for the digital signature service and passes verification procedures such as entering a password before signing. In fact, with the use of digital signature services like AuthentiSign or DocuSign some real estate agents and lawyers may not require a witness signature, as the digital signature service itself acts as a type of witness.
There is no need to be afraid of electronic signatures with respect to legality. However, just like regular signatures, you should ensure that if there would be significant consequences to a signature being challenged, there are safeguards in place that will provide you the evidence you need to enforce the legal document.
Written by Kylie Walman
Although you may intend to be living a free-wheeling/no-strings attached existence, if you’ve lived with your romantic partner for more than two years you may be spouses under the BC Family Law Act. And that means when you split, you could be on the hook for spousal support and dividing all of your property 50/50.
In 2013, the Family Law Act came into force and the laws for property division that are applied to married couples when they divorce are now also applied to unmarried couples who are found to be spouses. So how do you know if you’re spouses? In the recent decision of Weber v. Leclerc, 2015 BCCA 492, the British Columbia Court of Appeal made clear that the answer depends mostly on the nature or quality of your relationship, not on what either of you say you intended – particularly after-the-fact when you may have a lot to lose admitting that you intended to live as spouses. That was the situation in the Weber case, where Ms. Leclerc said, after-the-fact, that she never intended to be in a spousal relationship with Mr. Weber. The BC Supreme Court and the Court of Appeal rejected her evidence finding that it wasn’t consistent with the other evidence that made clear the couple were in a “marriage-like relationship” (like the fact that they lived together for 11 years, were sexually active and monogamous, raised their separate children together, went on family trips, and had family portraits taken). The Court of Appeal said that the question isn’t whether the couple intends to be bound by the laws applied to married couples; the question is – did the couple enter into the relationship intending to live together for an indeterminate amount of time, like a married couple? If so, they will be spouses.
Of course the question then is – what is living “like a married couple”? That’s where things can become more difficult to pin down. There is no checklist you can tick off to see if your relationship would be considered spousal – and rightfully so. All relationships, married or not, are different and there are infinite variations of relationships that could be considered spousal. For example, some couples maintain a sexual relationship, while others don’t; some couples mingle their finances while others keep their money and property separate; some couples holiday separately; some couples enjoy public displays of affection, while others are very private, etc. So if this feels like laws foisted on unmarried couples, without them specifically choosing that, as the Court of Appeal pointed out, unmarried couples can choose not to have those laws apply to their relationship – by entering into a legally binding contract, or cohabitation agreement – “opting out” of certain parts of the Family Law Act. So, if you’re approaching that two year mark living with your significant other, it may be time for a conversation and a trip to your family law lawyer.
Ms. Leclerc has since brought an application for leave to appeal the case to the Supreme Court of Canada. A decision from the Supreme Court of Canada as to whether they will hear the case is expected to take anywhere from two to four months.
HALLER v. GALEY
Jury Trial Conducted by James Cotter and Ryan Irving, December 2015
Our client, Mr. Haller, was 62 years old at the time he was injured in a high speed, rear-end motor vehicle accident. Following the accident, he suffered from a significant neck injury and debilitating headaches, as well as problems with balance and vertigo, requiring him to use a cane. At the time he was a logging truck driver who had taken time off of work for treatment of cancer. Mr. Haller intended to return to work in his chosen profession once he had finished his treatments. He had been driving a logging truck for nearly 40 years, and had no intention of retiring any time soon.
ICBC was the insurer for the Defendant Galey, who hit Mr. Haller’s vehicle from behind. ICBC took the position that Mr. Haller was not going to return to work as a logging truck driver even if the accident had not occurred, as he was fighting cancer, he had diabetes, and he was too old. ICBC took this position despite the fact that Mr. Haller had evidence supporting the fact that he had worked all of his life, and that he wanted to continue working, and he did not have limitations to working prior to the accident. This was supported by his medical records, his financial records and his co-workers and friends.
ICBC set the matter down to be heard in front of a jury. James Cotter, a senior litigation partner at Nixon Wenger LLP and Ryan Irving, a litigation associate, conducted the trial on behalf of Mr. Haller. At the trial, the Defense argued that any continued problems that Mr. Haller had with regard to being unable to work related to his diabetes rather than injuries suffered in a high speed accident. Cotter and Irving obtained expert opinion evidence from a medical doctor with specialty in physical medicine and rehabilitation, as well as a doctor with a specialty in ear, nose and throat conditions (primarily balance related issues). Both of these medical experts provided opinions that Mr. Haller’s chronic, debilitating neck pain, headaches, and balance issues all stemmed from the trauma due to the accident. The Defense retained its own expert, who had the unique opinion that the accident was not a contributing factor for Mr. Haller’s current disability, rather it was his diabetes that was causing balance issues, which prevented him from working.
After a week-long trial, the jury verdict came back largely in agreement with Mr. Cotter’s submissions regarding Mr. Haller’s claim. The verdict was a fair result, which was far more than what ICBC had offered. The jury believed Mr. Haller and his medical experts in regard to his injuries and his intention to keep working. They did not accept the Defendant’s argument that he was too old or that his diabetes was preventing him from driving his logging truck. It was a just result for Mr. Haller, who showed courage to take this matter to a trial in the face of ICBC’s low offer. The jury applied common sense and arrived at a fair result.
Kylie Walman, was retained to go to the Court of Appeal on behalf of one of the parties in a family law dispute concerning whether he and his ex-partner were spouses. The opposing party (she) took the matter to the BC Supreme Court arguing that the couple were not spouses and consequently the Family Law Act should not apply, which would require her to pay spousal support and the couples’ property be divided. She lost at the Supreme Court and appealed the matter to the Court of Appeal. We were successful and the Court of Appeal upheld the Supreme Court’s decision finding that the couple were indeed spouses, having lived together for more than two years in a “marriage-like” relationship. The wife argued vigorously that the court should not find a spousal relationship unless it’s clear the couple intended to live as spouses and intended to have the same laws applied to them as are applied to married couples. The Court of Appeal disagreed and held that determining whether a couple are spouses requires an examination of the nature and quality of the relationship. The Court agreed that intention is important but it’s the intention to live together for an indeterminate amount of time, in a relationship similar to marriage; not the intention to be bound by particular laws. The Court also made clear that after-the-fact statements or evidence about the parties’ intentions during the relationship will only be given weight where it’s consistent with other objective evidence regarding the nature of their relationship.
She has now applied for leave to appeal the decision to the Supreme Court of Canada. A decision from the Supreme Court of Canada as to whether they will hear the matter is expected sometime between April – June 2016.
http://www.canlii.org/en/bc/bcca/doc/2015/2015bcca492/2015bcca492.html?autocompleteStr=weber%20v.%20lec&autocompletePos=2
Wills variation claim.
Senior Litigation Partner Mike Yawney was retained by the father of a 20 year old daughter who was severely injured in a motor vehicle accident to assist her in pursuing a claim for life changing injuries. She had no memory of the accident. She suffered a moderate to severe brain injury in the accident, along with other physical injuries that required a lengthy hospital stay and rehabilitation. The claim was difficult to pursue because the young woman was initially blamed for causing the accident. After retaining the involvement of accident reconstruction engineers, human factors experts, and an extensive investigation of the accident, our team was able to substantiate an argument that the young woman was not solely responsible for causing the accident; that other parties had some responsibility for it occurring.
In addition to a hard fight on liability, the assessment of the young woman’s injuries also required extensive work. Several medical specialists were retained to assess the plaintiff, including a physiatrist, neuropsychologist, neurologist, psychiatrist, occupational therapist and life planning/care experts, economists and life expectancy experts, along with a case manager to assist the plaintiff in her day to day life. The matter resolved shortly before a month long scheduled trial for approximately $2,200,000.00 including costs.
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