BC Take Five August 2010

OnPoint Legal Researcht. 604-879-4280

www.onpointlaw.com

604-879-4280 | [email protected]

1

August 2010

BRITISH COLUMBIA EDITION

Inside this Issue:

Due to popular demand, this month we are running another PinPoint contest. To enter, send us an email by Sept.15 with the name of the building on the right and its location. The winner (drawn from all the correct entries) will win a $100 gift certificate for the restaurant of his or her choice.

PINPOINT: What and Where?

Learn and Earn. We are excited to announce that we are holding our research course again this year. Earn 6 CPD credits while learning the latest research techniques. See pp.2-4 for details.

Featured Cases:Personal Injury; Witnesses; Credibility- p.5Employment; Defamation- p.6Estates; Remedies- p.7Personal Injury; Negligence; Joint Tortfeasors- p.9Employment; Wrongful Dismissal- p.11

mailto:[email protected]

Earn 6 CPD CrEDits

inCluDEs 1 hour EthiCs ComPonEnt


22

Who should attend?Senior lawyers wanting to be updated on the lastest techniques

Junior lawyers aspiring to become better researchers

Articling students looking to start off their careers with valuable tips from research specialists

Paralegals wishing to improve their research skills

OnPoint has been researching for other lawyers for over 10 years. In this second annual presentation of this course, we will draw from our experience to demonstrate how to

map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider” tips, discuss legislative research techniques, and walk though a sample issue, from start to finish.

Ellen Vandergrift, OnPoint Legal Research- Ellen has a winning combination of a keen analytical mind, a clerkship with the Alberta C.A., litigation experience at Fraser Milner, and a drive to keep digging until she finds the right answer. If it’s out there, Ellen will find it! You will learn from her years of experience when to use what resource and how best to use it.

Our Panel Knows ResearchChair: Sarah Picciotto, Founder of OnPoint Legal Research

Susan Caird, McCarthy Tétrault LLP - Susan has over 10 years of law library experience. She has recently joined McCarthy Tétrault after a lengthy stint as a librarian and Manager of Reference Services at Courthouse Libraries BC. Over the years, Susan has tackled her share of tricky legislative queries. During her presentation, she will answer some of the most common questions asked of her by lawyers and articling students.

Efrat Arbel, OnPoint Legal Research- Efrat served as a clerk to the British Columbia Supreme Court before practising with Fasken Martineau. She is currently a research lawyer for OnPoint and a Doctoral Candidate at Harvard Law School. Efrat will show you how to strategically map out a research plan and effectively present results to clients, other lawyers, and the court.

Legal Research: From Problems to Solutions 2010



33

Agenda8:30- 9:00- Registration and Continental Breakfast

9:00- 9:10- Welcome from Sarah Picciotto, Founder of OnPoint

9:10-10:00- Efrat Arbel- “Preparing for the Trek” - Determining the end goal to ensure you head down the right path - Considering your audience in constructing the journey - The importance of getting the proper facts, instructions, and scope of the research

10:00-10:45- Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course” - The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:45- 11:00-Coffee break (with pastries)

11:00- 12:00-Ellen Vandergrift- “Navigating the Electronic Terrain” - Insider tips from a research lawyer who performs computer research every day - Cost-efficient uses of electronic resources - Pointers on when to use which resource for what task - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool - Important resources for keeping current

12:00- 1:30- Lunch (on own)

1:30- 2:30- Susan Caird- “The Legislative Research Journey Made Painless” - Tracing legislation back to original provisions - Locating judicial consideration of legislation using different methods and sources - Ensuring legislation is current and in force - Using free and for-fee electronic sources and useful print materials - Pitfalls of legislative research and how to avoid them

2:30- 3:30- Ellen and Efrat- “Showing Someone Else the Way” - Keeping notes for future research or to defend research choices - A review of our Research Checklist - How to best create the product for another lawyer, a client, or the court 3:30- 3:45- Coffee break (with goodies)

3:45- 4:30- Ellen Vandergrift- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Earn 6 CPD CrEDits

inCluDEs 1 hour EthiCs ComPonEnt



44

Course Registration Form

Program Name: Legal Research: From Problems to Solutions 2010Date: November 25, 2010- 9:00 to 4:30 (continental breakfast starts at 8:30)Format: Live Program with MaterialsLocation: TBD, Vancouver Early Bird (paid before Oct.28): Regular: $425; Student $250 After Oct.28: Regular: $495; Student: $295 SURNAME GIVEN NAME INITIAL

FIRM NAME ADDRESS POSTAL CODE

PHONE FAX EMAIL

Position: SOLE PRACTIONER PARTNER ASSOCIATE STUDENT PARALEGAL

OTHER _____________

Year of Call: ______

o Early Bird Student-------------------------------$250 + $30.00 HST = $280.00

o Student ------------------------------------------- $295 + $35.40 HST = $330.40

o Early Bird Regular ------------------------------ $425 + $51.00 HST = $476.00

o Regular --------------------------------------------$495 + $59.40 HST = $554.40

I’m paying by: Cheque Money Order Credit CardCard Type: Visa MasterCard

CARDHOLDER NAME CARD NUMBER EXPIRY

SIGNATURE

By Fax: By Mail: By Phone:

604.648.8930 OnPoint Law Corporation, 178-2498 W.41st Ave, Vancouver, BC V6M2A7 t: 604.879.4280



55

The appellant’s vehicle struck the respondent as she was jaywalking across a roadway. The respondent suffered a head injury and has no memory of the accident. The appellant died prior to trial. In an action to apportion liability, the trial judge relied on two eyewitnesses. In direct examination, the version of events described by both witnesses indicated that the appellant should have seen the respondent far enough in advance of the accident to have taken evasive action and avoided the collision. The trial judge accepted this version

Duncan v. Mazurek, 2010 BCCA 344Areas of Law: Personal Injury; Witnesses; Credibility Under Appeal: Judge Silverman

of events and apportioned liability equally between the parties, even though both witnesses were confronted with disparities in their version of events on cross examination and admitted that their responses during examinations for discovery were likely more accurate.

The appeal was allowed. The Court ordered a new trial to determine how the accident occurred and to reconcile the discrepancies in the evidence. One of the appellant’s key arguments was that when the plaintiff

BACKGROUND

Engineers and Scientists specializing in

Transportation

Injury Biomechanics

Product

Property

Aviation

www.meaforensic.comMEA is an approved Continuing Education provider at the Law Society of BC.

APPELLATE DECISION

respondent read in answers from the examination for discovery- especially portions that were not favorable to her own case- the trial judge was bound to accept the aspects that were unfavorable to her rather than accept those that were more favourable. The Court disagreed with this argument, but did caution against reading in too much evidence from an examination for discovery as the trial judge is entitled to accept even parts of the evidence which are not favorable. The Court concluded that the trial judge erred in law by not adequately addressing the inconsistencies in the evidence.

BACKGROUND

CLICK HERE TO ACCESS THE JUDGMENT



66

The appeal was allowed in part and on a limited basis. The Court agreed that the evidence did not support a remedy of punitive damages. However, the Court concluded that the internal memo was both defamatory and only partially protected by qualified privilege. The appellant’s direct supervisor and members of the human resources department were entitled to receive the memo, and as such, the defence of qualified privilege protected that communication from allegations of defamation. However, the memo was also sent to another individual within the organization who had no duty to receive it. As such, the defence could not operate to immunize that communication from scrutiny. Because the defamation was limited to one person, the Court only granted the appellant nominal damages in the amount of $1,000.

The appellant was employed by the

respondent as a regional manager. During her maternity leave, she was terminated. The respondent employer reorganized the division in which she was previously employed and offered her the choice between two new positions in the same pay band as her previous role. The appellant failed to choose one of the positions.The respondent indicated to the appellant that she was terminated for failing to make a choice. The supervisor who

Dawydiuk v. ICBC, 2010 BCCA 353Areas of Law: Employment; Defamation Under Appeal: Justice Blair

terminated the appellant then sent an internal memo to the human resources department describing the termination, as per company policy. In the memo, the supervisor indicated that one reason for the termination was inadequate performance and he did not recommend her for rehire. The appellant sued for wrongful dismissal and claimed punitive damages arising from the mental distress caused by the termination. She also claimed the internal memo was defamatory. The trial

judge found no evidence to support an award of punitive damages and concluded that whether the memo was defamatory or not was moot because it was protected by qualified privilege.

BACKGROUND

APPELLATE DECISION



http://www.courts.gov.bc.ca/jdb-txt/CA/10/03/2010BCCA0353.htm



77

Antrobus v. Antrobus, 2010 BCCA 356

Areas of Law: Estates, Remedies Under Appeal: Justice Smith

The respondent provided care, housework and

unpaid work in the family business to her parents (the appellants) over the course of three decades. The appellants acknowledged the value of her contributions and promised her their entire estate in return. In 1999, the relationship disintegrated and the respondent ceased her work for the family. The appellants made a trust agreement with their other children that the estate would be conveyed to them instead. When the respondent learned of this agreement, she brought an action seeking a constructive trust over the appellants’ assets or to have the conveyance to her siblings declared void as a fraudulent conveyance. The respondent was successful at trial and was awarded $190,000 in damages on the basis of restitution. A constructive trust was not awarded despite the existence of the three preconditions (an enrichment, a corresponding deprivation, and no juristic reason for the enrichment) because the link between the assets and the respondent’s contribution was not sufficiently strong.

[continued on the next page]

From land and court �lings to local and global process serving to corporate, personal property, manufactured homes, motor vehicles, vital statistics and every other registry, West Coast rolls out the red carpet, because we know that ever-changing rules and regulations often make �ling seem like a never-ending maze.

It’s why we put our reputation for service and quality behind each and every �ling we do – online or on paper.

And our three o�ces are only a phone call away to help you �nd the best solution for all your �ling and serving needs.

Vancouver 604-659-8700New Westminster 604-659-8600Victoria 250-405-6000

West Coast Title Search Ltd.Telephone: 1-800-553-1936 www.wcts.com

West Coast Title Search rolls out the red carpet for all our clients

on all our services!

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT

BACKGROUND




The appeal was allowed, but only to the extent of reducing the award of damages to $100,000. The Court indicated that either of two approaches for quantifying

remedies for unjust enrichment is acceptable in British Columbia: “value received” or “value survived”. This differs from Ontario, where the courts only calculate a monetary award with the value-received approach. The Court found that the trial judge erred in her assessment of damages by combining both approaches and making an award based on the present assets of the appellants, which were found not to be strongly connected with the enrichment at issue. In cases where the enrichment is strongly connected to property of the enriched party, the value- survived approach of looking to the present assets of the enriched party may be appropriate. The Court concluded that there were too many variables in this case to use the trial judge’s approach, which was to award roughly one-quarter of the appellants’ current assets. A strict accounting is not required in the quantification of damages using the value-received approach; the goal instead is to obtain a fair result. On the available evidence, the Court concluded that an award of $100,000 achieved a fair result and represented approximately the value of the benefits the appellants received.


88

Back to photos of books and scales of justice....

Antrobus v. Antrobus, 2010 BCCA 299 (cont.)

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT.

APPELLATE DECISION


www.courts.gov.bc.ca/jdb-txt/CA/09/02/2009BCCA0294.htm

www.courts.gov.bc.ca/jdb-txt/CA/09/02/2009BCCA0294.htm


99

Our research

lawyers all have experience as litigators with major firms and have completed clerkships in B.C. or Alberta.

Bradley v. Groves, 2010 BCCA 361

Areas of Law: Personal Injury; Negligence; Joint Tortfeasors

The respondent was injured in two

separate motor vehicle accidents. She sustained soft-tissue injuries in the first accident and was not fully recovered by the time of the second accident, which aggravated her pre-existing injury. The appellant admitted to full liability in the first accident. At trial, the only issue was the extent to which the appellant was responsible for a damage award representing the full extent of the respondent’s injuries in both accidents. The trial judge concluded that the respondent’s injury

was “indivisible” and as such, the appellant was liable for the full amount of damages awarded to the respondent flowing from both accidents. Apportionment was unnecessary because there was no finding of contributory negligence on the part of the respondent.

[continued on the next page]

BACKGROUND CLICK HERE TO ACCESS THE JUDGMENT





1010

Bradley v. Groves (Cont.)

The appeal was dismissed. The

appellant argued that Long v. Thiessen required an assessment of the plaintiff’s damages on the day before the second tortious act and the allocation of only that amount of damages to the first tortfeasor. The Court was required to determine whether the Supreme Court’s decision in Athey v. Leonati overruled the Long approach. The Athey case states that a tortfeasor who contributes to an “indivisible injury” will be jointly and severally liable for the full injury of a plaintiff. The Negligence Act permits tortfeasors to seek indemnity or contribution from one another, but permits the

Records and DocumentationIf you are carrying on a business, you are required to keep adequate records that provide sufficient details and support to determine how much tax you owe. Estimates and incomplete information are not acceptable to CRA. In this regard, I refer you to CRA’s Guide RC4409 Keeping Records, which can be found on CRA’s Website.

A CompanyAnother way to do business is through a company. A company is a separate legal entity that can undertake to do business and own property in its own name. A company has its own requirements to file tax returns, pay taxes, and meet other obligations. A company pays tax at different rates than does an individual proprietor.

There may be circumstances where it is tax-efficient to do business through a company or where liability issues make incorporation a prudent choice.

There are costs associated with incorporation, however. Before making a decision, you should carefully consider the costs of incorporating and carrying on an incorporated business and compare them to the benefits that would be gained by doing so.

Professional advice is recommended to assist you in making this assessment.

CautionThis article is not intended to provide a complete summary of issues and requirements relating to individuals in business; it highlights a few preliminary considerations. The comments provided herein are based on information available at the time of writing and are general in nature. We recommend that individuals consult their own tax advisors before acting on information contained in this article, to ensure that their own specific circumstances and current tax legislation are taken into account. s

Kathryn G. Edwards, CA, is a Partner with Pagnanini Edwards Lam Chartered Accountants.

[email protected]

Estate Litigation

I can help.

• PastPresident,TLABC

• PastChairWills&TrustsSection,CBA

• Over36yearsoflitigationexperience

TrevorToddWills

EstatesEstate Litigation

ReferralsWelcome.

P | 604 264-8470 www.disinherited.comE | [email protected]

Better care for a better life

Home care designed especially for you

• Nursing• Personal Care• Home Support• Companionship

• Funding Investigations• Free Assessments• Nurse Supervised Staff • 24 Hour/7 Day Service

Vancouver office

604.873.25451.866.227.3106 www.bayshore.ca

52 The Society of Notaries Public of British Columbia Volume 19 Number 2 Summer 2010

plaintiff to seek recovery from any or all of the tortfeasors so long as the plaintiff did not contribute to her injury.

The Court concluded that the Athey decision necessarily overruled the approach in Long.

APPELLATE DECISION



1111

Back to photos of books and scales of justice....

The appellant was the executive director of the respondent society. During her unpaid maternity leave, the society decided to wind down its operations.

Although the society acknowledged some obligation to pay severance to the appellant, it did not do so prior to taking active steps to shutting down the society, including changing signing authority on bank accounts, voting to dissolve the society, terminating the interim executive director and terminating the position of executive director. On learning of the society’s decision, the appellant brought a claim in small claims court claiming constructive dismissal. The respondent formally terminated the appellant as a result of her claim and the appellant then brought an action in Supreme Court for wrongful dismissal, or in the alternative, constructive dismissal. The summary trial judge concluded that the appellant was not constructively dismissed, and even if she was, she repudiated her contract of employment by bringing the small claims action.

Lewis v. Terrace Tourism Society, 2010 BCCA 346

Areas of Law: Employment; Wrongful Dismissal Under Appeal: Justice Joyce

The appeal was allowed. The Court divided on both issues under appeal. The majority concluded that the rights of an employee as they relate to termination are the same whether the employee is on leave or not. The unilateral and fundamental changes to the appellant’s workplace constituted constructive dismissal because no actual notice of her upcoming termination was provided to the appellant. Such conduct on the part of the employer amounted to a repudiation of the employment contract, even though the respondent was on leave at the time and, as a result, could not be given working notice. The trial judge both misapprehended the evidence and incorrectly applied the law by determining that the appellant’s employment contract was not repudiated. The majority found it unnecessary to determine whether the appellant’s small


claims action constituted repudiation of her employment contract. In obiter, the majority stated that even if constructive dismissal had not occurred, bringing the small claims action would not have amounted to repudiation because no notice was provided to the appellant of her dismissal.

APPELLATE DECISION

BACKGROUND




BC Take Five August 2010

Documents

Transcript of BC Take Five August 2010