Claim resolved before trial

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A young lady in her early 20s suffered debilitating back and neck injuries, along with psychological problems as a result of a motor vehicle collision on a rural secondary road near Armstrong, BC.  Liability was admitted for the collision after Michael Yawney QC and his team investigated the collision. Mr. Yawney was able to resolve the claim prior to trial for $590,000.00 including costs.

Whiplash injuries settle before trial for $210,000

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The daughter of a corporate client of the firm retained Michael Yawney QC to assist her with a claim for injuries suffered in an accident where the plaintiff had been hit hard from behind. The whiplash injuries she suffered impacted her sports and ability to work as a hair dresser, limiting how many clients she could see. The medical evidence supported that her capacity to work was partially impaired and that that would not get better as she aged. Mr. Yawney with his partner Allyson Edwards settled the claim prior to the start of a 5 day trial for over $210,000.00 plus costs.

Muliple roll over accident resolves for over $850,000 plus costs

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Michael Yawney QC was retained by the father of a 16 year old girl who was involved in a multiple roll over accident on a highway in the Kootenays where her mother was driving and passed away as a result of the accident. The client suffered a mild brain injury and psychological injuries that impacted her ability to finish high school and to work with any consistency. Mr. Yawney had to assist with retaining treating therapists and arranging rehabilitation for the girl because her life was turned upside down with the loss of her parent and the injuries she suffered in the accident. After 4 years of assessments and preparing the matter for trial, the claim was resolved for over $850,000.00 plus costs.

Intersection accident resolves for over $185,000

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A Vernon man in his 40’s suffered soft tissue injuries in an accident at a controlled intersection. The man retained Michael Yawney QC to pursue his claim for injuries. Mr. Yawney, along with his partner Allyson Edwards, was able to resolve the claim just prior to trial for over $185,000.00 plus costs.

Complicated claim resolves for $100,000 with no legal action

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A Kelowna man was pinned between a cube van and a wall when trying to help a young driver back out of an underground parking area. He retained Michael Yawney QC to pursue a claim against the corporate owner and driver of the cube van. The claim was complicated by the fact that the van was self insured by the company that owned it. The client suffered contusion injuries and soft tissue injuries to his leg and hip. The man’s injury claim was resolved before legal action was even filed for over $100,000.00.

Accident results in $150,000 plus costs for client

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A Vernon woman suffered soft tissue injuries, neck and back, in an accident in the North Okanagan. Michael Yawney QC and Allyson Edwards pursued the claim on the client’s behalf and were able to settle it shortly before trial for over $150,000.00 plus costs.

Small Business Week 2018: Director Duties

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Written by Krystin Kempton, Associate
Directors are elected by shareholders of a company to manage or supervise the management of the affairs of the company. Directors set the company’s overall direction and goals and directors appoint officers to carry out those goals. Directors of Canadian companies are required to fulfill certain duties, which can be broken down into two types: 
1. fiduciary duties, which are duties that result from being in a trust position; and
2. the duty of care, which is the expectation that a director will perform his or her duties in accordance with a certain standard.
Directors have duties imposed on them regardless of whether that person is a director of a company or a not-for-profit organization – there is no immunity for volunteers. 

Fiduciary Duties
A director is a fiduciary of their company. Fiduciary duties exist to provide protection to shareholders. There is a duty to act in good faith and in the best interests of the company, a duty to avoid conflicts and potential conflicts of duty and interest and a duty to not take advantage of company opportunities. A director is not permitted to act in his or her own self-interest or those of other people – the interests of
the company must be put first. A conflict of interest exists when there is the potential to favour personal interests, or those of other people, over the interests of the company.
Examples of conflicts of interest include:

  •     • any contract between a director and the company which could result in profit for that director,
          or which furthers the interests of that director’s relatives or friends;
  •     • accepting a gift as a token of friendship from an employee of the company before a vote about 
          that employee takes place;
  •     • disclosing confidential information about the company for personal use;
  •     • and taking part in a decision to terminate an employee of a company who has had personal issues 
          with that director’s child or spouse.
So what happens if there’s a conflict?

  •    • disclose the interest to the other directors;
  •    • leave the meeting when the matter is discussed and voted on;
  •    • don’t do anything that might influence the discussion or vote; and
  •    • ensure the conflict has been recorded in the meeting minutes.

    The other directors may approve a transaction that involves a conflict for a director, but the interested director must abstain from voting.

Duty of Care
The duty of care requires a director to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. Directors with special knowledge and experience are expected to apply those skills when making decisions.
In practice, a director fulfills this duty of care by making informed decisions. Directors should always spend the time necessary to make reasonable decisions. This includes attending board meetings, learning about the issue, seeking input from the company’s officers, asking necessary questions and assessing the implications of a decision before voting.

Major highway collision resolves for over $14,000,000 for infant girl

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Michael Yawney QC was asked by an Alberta lawyer to take on a complex injury claim from a collision that occurred on Hwy # 1 in BC, near the Alberta border. A tractor trailer lost control on winter roads and hit a family travelling back to Alberta. A young baby was severely injured in the collision, suffering a severe brain injury and other injuries that compromised her development. The effect on the little girl and her family had been devastating. After many years of work on the file, one trial and a pending further trial, the infant girl’s claim was resolved for over $14,000,000.00; most of that amount was to cover her daily care needs for the rest of her life because she would never be able to live on her own or have her own life. Mr. Yawney’s team included a case manager/paralegal, many legal assistants lawyers and two of his partners, Allyson Edwards and Ryan Irving.

Seller Beware!

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Written by: Krystin Kempton, Associate
A recent case in the British Columbia Supreme Court allowed a buyer to back out of a contract to buy a $6.5 million house in West Vancouver based on a standard contract clause dealing with permitted encumbrances. 
The contract stated that the land would be transferred “free and clear of all encumbrances” except for “restrictive covenants and rights of way in favour of utilities and public authorities.” Title to the property contained an old restrictive covenant that imposed restrictions on the use of the property and alterations to the property. The restrictive covenant was in favour of a developer. 
The seller was not able to obtain a release of the restrictive covenant and the buyer refused to close. The seller sued the buyer for the $300,000 deposit. The seller argued that the buyer was aware of the restrictive covenant and approved a title search of the property, and therefore should not be able to back out on that basis. 
The court ruled in favour of the buyer. The buyer was allowed to rely on a literal reading of the contract which did not include the restrictive covenant as a permitted encumbrance since it was not in favour of a utility or public authority. 
As a seller, it is important to carefully draft purchase and sale agreements to set out every encumbrance which will remain on title following closing. 

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

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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

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