BC Take Five March 2011

604-879-4280 | [email protected]

March 2011

BRITISH COLUMBIA EDITION

Inside this Issue:

op

In our continuing cover series of photos from around the world...this month, a street scene from Buenas Aires. If you have a travel photo you would like to see on the cover of an upcoming edition of Take Five, please send it along.

ON PO I N TLEGAL RESEARCH

Featured Cases:

Aboriginal Law; Consultation and Accomodation; Environmental Law- p.3Wrongful Dismissal; Duty to Mitigate; Wallace Damages- p.5Commercial Law; Deceptive Marketing; Interpretation- p.6Family Law; Marital Property; Equalization or Division- p.8Damages; Torts; Fraud and Misrepresentation- p.10

Classified Section: Job opportunities, sales of law practices, and other law-related postings.- p.12

Prepare to Win.

mailto:[email protected]

OnPoint Legal Research | Take Five

604.879.4280 | [email protected]

2

2

\

OnPoint is not a “temp” agency. We

are a law firm of on-call lawyers actively involved in our clients’ files, albeit on a fractional basis. We have two divisions: legal research and on-call associates.

Who is OnPoint?

Legal Research Division: For over 10 years, our research division has completed research and writing projects for lawyers in the private and public sectors, from case summaries to complex memoranda and facta. Many of our clients consider using our services as equivalent to relying upon work completed by in-house associates, and add a measure of profit accordingly when billing their own clients.

On-Call Associates Division: Our on-call associates division responds to the need to control costs while effectively managing workload variances. Our litigators are available for a range of services, from background assistance and file management to court appearances

and locums. Whether we are engaged for a set period of time, a particular file or a specific project, our clients benefit from having access to temporary assistance from outstanding lawyers without the overhead associated with employing full-time associates.

“OnPoint has always performed in a timely, effective and professional manner and has done excellent work at a reasonable price. We do not hesitate to use their services.”

Larry Kahn, QC and Marvin Lithwick, Kahn

“OnPoint’s lawyers are knowledgeable, efficient, effective and reliable. Their work is always proficient and timely. It is a pleasure to work with them. They are an invaluable resource to our firm.” Angiola De Stefanis, Alliance Lex Law Corp.

Sarah Picciotto

“My clients appreciate that a research specialist is helping me with their file and they respect me for getting outside assistance.”

Raymond Bianchin, Raymond Bianchin Law Corp.

Sarah Picciotto, B.A., LL.B. Founder of OnPoint


March 2011


3

3

Email Us:Michael Thomas

Terry Robertson, QCMandeep Gill

Bernie Buettner

Did you know that Harper Grey llp has a significant plaintiff personal injury practice?! Here’s what we offer:

• Free consultations with clients and/or referring lawyers• An extensive list of trusted medical, economic, scientific

and other experts• A great reputation for trial expertise and client service• Financing to help clients through lengthy cases

We understand your reputation is at stake with any referral. We promise to respect your relationships.

Want to know more? Visit our website: www.hgpersonalinjury.com

Honouring Referrals. Respecting Relationships.

Nlaka’pamux Nation Tribal Council v. British Columbia (Project Assessment Director, Environmental Assessment Office), 2011 BCCA 78

Areas of Law: Aboriginal Law; Consultation and Accommodation; Environmental LawUnder Appeal: Justice Sewell

The appellant in this case was the Nlaka’pamux Nation Tribal Council. The respondents were Derek Griffin in his capacity as Project Assessment Director of the Environmental Assessment Office, Belkorp Environmental Services Inc. and the Village of Cache Creek. The appellant appealed a decision dismissing its application for judicial review of the respondents’ order under s. 11 of the Environmental Assessment Act SBC 2002, ch.43 regarding the extension of a landfill site. The proposed extension would have occupied land

over which the Nlaka’pamux First Nation claimed Aboriginal rights and title. The appellant argued that it had a right to be consulted regarding the proposal. It also argued that the respondents’ order setting out the methods and procedures for assessment was flawed because it lacked a provision requiring the Environmental Assessment Office or the proponents of the project to consult with the appellant. In response, the Project Assessment Director acknowledged a right to some consultation and amended the order to provide the appellant an opportunity to be consulted outside of the formal process established by the order. The chambers judge found that the respondent’s decision to exclude the appellant from the working group established pursuant to the order and to amend the order to provide that consultation with First Nations could be done on a government-to-government basis was not a failure on the part of the Crown to discharge its duty to consult.

[continued on the next page]

BACKGROUND

CLICK HERE TO ACCESS THE JUDGMENT


http://courts.gov.bc.ca/jdb-txt/CA/11/00/2011BCCA0078.htm


mailto:mthomas%40harpergrey.com?subject=

mailto:mgill%40harpergrey.com?subject=

mailto:bbuettner%40harpergrey.com?subject=

http://www.hgpersonalinjury.com



The appeal was allowed. The Court of Appeal determined that the chambers judge erred in finding that adequate consultation could occur outside the bounds of a s. 11 order. The Crown was not entitled to balance its obligation to consult with its obligation to carry out its statutory duty in an effective manner. Specifically, the Crown’s duty to act honourably toward First Nations made consultation a constitu-tional imperative that could not be compromised in order to make the process more efficient. The Court further held that while the respondents did nothing wrong in drafting the initial order and terms of reference, they had ongoing obligations to consult with the appellant. When

the respondents became aware of the appellant band’s demands to be brought into the process, it was incumbent upon them to consider whether consultation was required, and, if it was, to establish an appropriate procedure for such consultation. While consultation outside of the

environmental assessment was possible, it could not substitute for consultation within the assessment process itself. The Court held that to deny the appellant a role within the assessment process would be to deny it access to an important part of the high-level planning process.

TAKE FIVE CLASSIFIED

Have a law-related job opportunity, looking to sell your firm or to share

office space?

Our Classified Section reaches an audience of over 2,000 lawyers who have opted in to receive Take Five.

Please contact us for more information.


4

4

Nlaka’pamux Nation Tribal Council v. British Columbia (Project Assessment Director, Environmental Assessment Office) (cont.)

APPELLATE DECISION



March 2011


5

5

The appeal was allowed in part. The Court of Appeal upheld the trial judge’s finding that the respondent was dismissed by the employer. However, she did not provide any analysis to support this determination, and in so doing, failed to fully address the factual complexities of the case. In addition, the trial judge correctly found that the respondent had not failed to mitigate her damages when she refused the appellant’s offer of re-employment as the offer was equivocal in its terms and was made after the appellant had already rejected her explanation of her absence. The Court maintained that any chance of repairing the employment relationship was irretrievably lost after the parties’ lawyers became involved, and that it was therefore not surprising that the respondent no longer had any interest in returning to the workplace. A reasonable person would not have been expected to accept the offer in these circumstances. The Court further held that the trial judge erred in her application of the test for compensatory damages by adopting a one-sided approach and relying only on the respondent’s evidence. Such damages were not warranted on grounds that both parties contributed to the circumstances that ended the employment relationship. Moreover, the respondent’s medical evidence did not establish a link between the manner of her dismissal and the anxiety and depression she experienced. As a result, an award of compensatory damages was not justified.

The appellant in this case was Westport Foods

Ltd. The respondent was its employee Ms. Beggs. In 2009, the respondent, then aged 52, was employed by the appellant. She had worked for the respondent in various positions for 10 years and had a good record of employment. After a fire destroyed the respondent’s home, she advised her supervisor that she would not be coming into work as scheduled and did not know when she would return. In the week immediately following the fire, the respondent’s supervisor attempted to contact her

Beggs v. Westport Foods Ltd., 2011 BCCA 76

Areas of Law: Wrongful Dismissal; Duty to Mitigate; Wallace Damages Under Appeal: Justice Morrison

on two occasions, but her phone was disconnected. After not having heard from the respondent for almost a month, the appellant prepared a record of employment for the respondent, which indicated that she had quit. After the fire, the respondent suffered from anxiety and depression. She obtained a note from her doctor indicating that she was unfit to return to work for an additional two months. She phoned the appellant to request that a record of employment be prepared for her, so that she could go on medical leave, and was advised

that one had already been prepared indicating that she had quit. The respondent interpreted this as a dismissal and contacted a lawyer. After the lawyer contacted the appellant, the respondent was advised that she was welcome to return to work and would be advised of her schedule and the job expectations. The respondent did not return to work, but instead issued a claim for wrongful dismissal. The trial judge found that the respondent did not quit, but was terminated. In addition, she found that the respondent had not failed to take steps to mitigate her losses, and awarded her damages equivalent to reasonable notice of 11 months, and $20,000 as compensatory damages for mental distress related to the manner of dismissal.

BACKGROUND

APPELLATE DECISION







6

6

BACKGROUND

Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69

Areas of Law: Commercial Law; Deceptive Marketing; Interpretation Under Appeal: Justice Gaul

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT

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

The appellant in this case was the Private Career Training Institutions Agency, the regulatory body responsible for overseeing career-training institutions in British Columbia. The respondent was Vancouver Career College. The respondent College had purchased numerous keywords from internet search engines in order for its name to come

up first among sponsored links in a web search. Among the keywords purchased by the respondent were the names of other career institutions in British Columbia offering similar programs of study. In response to complaints from these other institutions, the appellant Agency issued bylaws prohibiting member institutions from engaging

in misleading advertising. The appellant further filed a petition for a permanent injunction restraining the respondent from using the business names of other private career training institutions in its internet advertising strategy. In support of its petition, the appellant presented evidence from two prospective students who mistakenly contacted the respondent after searching the internet for information on other institutions. Neither student ended up attending the respondent College, nor did they lose any tuition money to the College. The chambers judge concluded that the appellant Agency had not established that the respondent College’s use of its competitors’ names was misleading or was likely to mislead. The chambers judge held the practice was akin to a business paying to have its name placed next to a competitor’s name in the Yellow Pages. On appeal, the appellant argued that the chambers judge erred by applying principles of trademark law to the interpretation of a consumer protection statute.





March 2011


7

7

Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc. (cont.)

The appeal was dismissed. The Court of Appeal clarified that the issue in dispute required the chambers judge to consider whether there were reasonable grounds to believe that the results of the use of technology in this case misled or were likely to mislead. Specifically, the chambers judge was asked to determine whether using a competitor’s name as a keyword to electronically produce a webpage showing the

respondent College’s website in priority on a list of possible career colleges was misleading or likely to mislead. The Court determined that the chambers judge’s reference to trademark cases did not undermine his consideration of the appropriate consumer. He was alive to the need to consider the applicable consumer in context, and did not err in concluding that the consumer had to be given credit for having normal intelligence. The Court

further found that the chambers judge had correctly focused on the definition of “misleading”, and clarified that simply because advertising was confusing did not mean it was misleading. The chambers judge was not required to go beyond that to determine whether there were reasonable grounds to believe that the respondent’s keyword advertising contravened the appellant’s bylaw.

APPELLATE DECISION

Speed

ScenePHOTOGRAPHS & DIAGRAMS

Unbiased pictorial and diagrammatic views for MVA and personal injury scenes

Photography day or night, rain or shine | Scale diagrams

Courtroom-ready packages | Witness experience | Video

Serving British Columbia Since 1986

Phone/Fax: Toll-Free from Vancouver604.856.3888

Email:[email protected]

Website:www.speedscene.ca

Address:35155 High Drive,Abbotsford, BCV2S 2X7




8

8

Haring v. Haring, 2011 BCCA 65

Areas of Law: Family Law; Marital Property; Equalization or DivisionUnder Appeal: Justice Wong

The appellant in this case was the husband Mr. Haring. The respondent was the wife Mrs. Haring. The parties separated after 36 years of marriage when the wife, due to longstanding conflict with the husband, left the matrimonial home and moved in with her daughter. For approximately 15 years prior to their separation, the parties ran a bakery business. The wife closed the business when the husband went into the hospital for an operation, and sold the business assets for what she could obtain. At the time of trial, the parties owned the matrimonial home, various chattel, three vehicles, and a bank account containing monies from the sale of their previous matrimonial home. In addition, the wife held stocks worth $379,600 in the Bank of Nova Scotia, TransCanada and the Bank of Montreal, which she had inherited, along with cash, from three different family members. The wife kept the Bank of Nova Scotia stocks intact, but used the inherited money and the

cashed-out stocks in TransCanada and the Bank of Montreal for family purposes. The trial judge found that the parties’ family assets included the former matrimonial home, chattels, bank accounts and vehicles. He held that each party was entitled to a one-half interest of those assets as tenants in common. He ordered that the matrimonial home be sold. The trial judge further found that the wife’s stocks were not family assets as they remained intact, although cash from cashed out stocks in TransCanada and the Bank of Montreal were used for family purposes. The husband appealed this decision on the basis that the trial judge erred in finding that the wife’s stocks were not family assets or, in the alternative, erred in not reapportioning the family assets in his favour.


BACKGROUND


1. Outsource legal researc

h to OnPoint

2. wash car

3. buy milk

4. order sushi

5. pick up dry cleaning

Make it a priority.

ON PO I N TL E G A L R E S E A R C H

op MEMORANDAFAC TA

P L E AD I NG S

www.onpointlaw.com 1.888.894.4280 [email protected]




March 2011

The appeal was allowed in part. The Court of Appeal held that the trial judge had correctly determined the Bank of Nova Scotia stocks were non-family assets, as they had been set aside and never used by the family. With respect to the issue of reapportionment, the husband had failed to demonstrate any misapprehension of the evidence and had not shown any error in principle. The Court found that the trial judge’s conclusion that the Bank of Nova Scotia shares were “a non-family asset” accorded with the provisions of Part 5 of the Family Relations Act, RSBC 1996, ch.128 and the jurisprudence. However, the Court also determined that the trial judge erred in finding that the TransCanada and Bank of Montreal stocks were not family assets. While parts of both the Bank of Montreal and TransCanada stocks remained intact as of the date of trial, there was some evidence from which it could be found, either directly or by inference, that both the capital and the income were used for general family purposes during the marriage. As well, it was reasonable to infer that dividends from those stocks, unlike the dividends from the Bank of Nova Scotia stock, were used from time to time for general family purposes. In light of this finding, the Court set aside the orders that the TransCanada and the Bank of Montreal stock were not family assets and substituted an order that those shares were each family assets to which each party was entitled to a one-half interest as a tenant-in-common.


9

9

Web-based Search & Registration

Open

Close the deal.

Visit

www.dyedurhambc.com or connect through BC Online

No faxes. No Couriers. No Paper.

No Footprint.

Information & Legal Support ServicesCORPORATIONLand TitleLitigationCorporatePPSADue DiligenceProcess ServingContinuing Legal Education

Haring v. Haring (cont.)

APPELLATE DECISION




10

10

The appellant in this case was Landstar Properties Inc. Mr. McCutcheon was the president and principal shareholder of the appellant company. The respondent was Ms. Smith, a retired school teacher. In 2004, Mr. McCutcheon offered the respondent an opportunity to invest in the appellant company for an 8% return. He promised her that her funds would be secured by a mortgage against properties being developed by the company. In November 2005, the respondent loaned the appellant $100,000. The loan was for a term of two years, callable after one year with full price and accrued interest at 8% per annum, payable quarterly in arrears. The appellant failed to provide the security for the loan, and the market interest rate for an unsecured loan was at least three times higher than the contracted amount. Eventually, the appellant repaid the loan

Smith v. Landstar Properties Inc., 2011 BCCA 44

Areas of Law: Damages; Tort Law; Fraud and Misrepresentation Under Appeal: Justice Willcock

BACKGROUND

BACKGROUND


Deponent’s office not near yours?

Witnessing affidavits at the offices of doctors, engineers, or any busy professional.

Send our mobile lawyers to them.

One flat rate includes attendance at deponent’s office to witness signature, mileage, parking, and courier delivery to your office of completed documents.

Tel: 604-879-4280 Email: [email protected] Fax: 604-648-8930 Website: www.onpointlaw.com

plus interest and argued that the respondent suffered no damages. In January 2007, the respondent commenced an action claiming damages for negligent misrepresenta-tion and breach of contract for the appellant’s failure to secure her loan as promised. She also claimed indemnity for costs related to the filing and removal of the

caveat and general damages measured as the difference between the interest she was paid by the appellant and the interest she would have been paid on an unsecured loan. The trial judge found in favour of the respondent and awarded her $31,990 in damages for negligent mis-representation and breach of contract.




March 2011

The appeal was dismissed. The Court of Appeal upheld the trial judge’s finding on the negligent misrepresentation claim, finding that the appellant had to have foreseen that the respondent would rely on its promise of security for the loan. The appellant owed the respondent a duty of care not to misrepresent its intentions with respect to the execution of the loan agreement. The appellant clearly fell below the required standard and breached its duty of care. With respect to the breach

of contract claim, the Court determined that damages based on an interest rate differential were appropriate. In the unique circumstances of this case, such damages would compensate the respondent for the effect of the appellant’s wrongdoing. The Court held that the appropriate measure of damages in this case was based on the commercial value of the right infringed, and assessed the sum payable by reference to the interest rate than might have been payable between the parties. The Court also upheld the trial judge’s award of indemnity for costs in relation to the filing of the caveat to obtain the security

provided for in the contract. The Court concluded that it must have been in the reasonable contemplation of the appellant that if security for the loan were not delivered, the respondent would attempt to secure the loan trough other means. Finally, the Court clarified that the expenses incurred in filing caveats are not properly considered mitigation damages, on grounds that the caveat could not reduce the liability of the appellant, only aid the respondent in realizing on her loan to the appellant.


11

11

Smith v. Landstar Properties Inc.

APPELLATE DECISION

http://www.hobbsgiroday.com




12

12

If you are looking to move your established practice, DuMoulin Boskovich LLP may be the right place for you. Being established since 1972, we are an active and collegial law firm offering significant leveraging opportunities for the right person. Our well established infrastructure will allow you to focus on your clients and enhance your practice. We offer clients a broad range of services within three main practice areas: Business Law, Insurance Defence and General Litigation, including Personal Injury. Visit our website at: www.dubo.com

For more information, please don’t hesitate to call Jon Walsh at 604-669-5500 or email him at: [email protected].

Take Five Classified

Personal Injury Junior Lawyer Required

Murphy’s Law is looking for a junior lawyer to join our well-established, busy and successful litigation firm located in Nanaimo, BC. We have one senior lawyer working in the field of personal injury litigation and three part-time lawyers who are supported by a team of dedicated and experienced legal assistants.

The lawyer we seek will have an interest in litigation of all types, be motivated, well-organized and be able to multi-task in a professional and friendly work environment. 1 to 3 years litigation experience is desirable.

Apply in confidence to [email protected].

Lawyer looking for a change?


March 2011


13

13

OFFICE SPACE FOR RENT OR LEASE

GREAT LOCATION: BOWER BUILDING- 543 GRANVILLE ST. Between Pender and Dunsmuir

- located between two skytrain stations

NEW CONSTRUCTION - Two window offices available from MAY 2011 (Take one or both.) - Spacious offices (one is 15’ 6” x 12’ and the other is 14’ 6” X 11’) - There is also room for a receptionist and secretary/legal assistant.

To view, call Edward Bowes at 604-817-5323, or email: [email protected]

Searching for an associate, selling a practice, or renting office space? Take Five is received by over 1,400 lawyers in B.C. and over 600 lawyers in Alberta and Ontario

who have signed up to receive the newsletter every month.

Contact us to find out more about placing an ad in our Take Five Classifieds.

op


BC Take Five March 2011

Documents

Transcript of BC Take Five March 2011