Issuu on Google+

604-879-4280 | info@onpointlaw.com

February 2012

BRITISH COLUMBIA EDITION EDITION

V INSIDE THIS

ISSUE:

Featured Cases:

op

3

Employment Law; Adequate Notice; Constructive Dismissal

5 12 7

Negligence; Standard of Care; Contributory Negligence

9

Contracts; Condition Precedent; Termination

11

International Agreements; Forum Selection Clause; Forum Non Conveniens

Damages; Causation; Expert Evidence; Mitigation

ONPOINT LEGAL RES EA RCH Prepare to Win.

Get 2012 off to a good start. Brush up on your skills and earn 2012 CPD Credits. Download the video of our Third Annual Legal Research Course, “From Problems to Solutions”. Learn and Earn 6 CDP credits, including 2 for Ethics/Prof Responsibility. Click here for more information about the course, and click here for a download form.


VIDEO NOW AVAILABLE FOR DOWNLOAD

Legal Research: From Problems to Solutions Held on Nov. 15, 2011

Earn 6 CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

Comments from this year’s attendees: “The course was excellent. The presenters were knowledgeable and animated which makes a huge difference in the delivery of complex subjects. I found the mixture of basic information with more advanced problem solving was effective, too.” “I will apply what we learned as I continue my work. My knowledge of the tools available for doing research has increased.”

“All the presenters did a wonderful job in drafting the power point presentation and in discussing the topics while relating with their own work experience.”

Click here for more info and here to download a form. Sponsored by:


604.879.4280 | info@onpointlaw.com

Giza v. Sechelt School Bus Service Ltd., 2012 BCCA 18 Areas of Law: Employment Law; Adequate Notice; Constructive Dismissal CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

that the five weeks’ notice given by the respondents was inadequate. However, the appellant was not entitled to damages as he was deemed to have repudiated his employment contract by failing to report for work during the notice period. The trial judge also declined to order statutory holiday pay, explaining that the rights conferred by the ESA can only be enforced through remedies provided by that legislation. Giza appealed, arguing in the main that the trial judge erred in finding that he had repudiated his employment contract when he failed to work during the notice period and lost his right to sue for reasonable notice. Giza further contended that the trial judge erred in holding that his claim for unpaid holiday pay could not be pursued in a civil action.

he appellant was Raymond Giza (“Giza”). The respondents were Sechelt School Bus Service Ltd. (“Sechelt”) and Randy Gould (“Gould”). Gould and his wife owned and operated Sechelt, which had employed Giza as a bus driver since September 2004. On September 30, 2009, the respondents gave Giza five weeks’ notice of his termination. Upon receipt of the notice, Giza drove the bus to Sechelt’s terminal and did not ever report back to work. He later filed a claim for unpaid holiday pay under the Employment Standards Act (“ESA”) which he subsequently withdrew. In February 2010, Giza sued the respondents for wrongful dismissal and non-payment of holiday pay. The trial judge held

The Quantum effect: two polarized parties, one dignified result. Quantum Mediation, a customized approach to resolving disputes. Call Renee Collins Goult at 604-924-1188 to book your mediation. Quantum Mediation | Decades of Resolving Disputes February 2012

604 924-1188

3

quantummediation.com


604.879.4280 | info@onpointlaw.com

Giza v. Sechelt School Bus Service Ltd., (cont.) APPELLATE DECISION

T

he appeal was allowed. The Court of Appeal agreed with the trial judge that the appellant was not constructively dismissed from his job and that he repudiated his employment contract when he refused to work during the notice period. The Court, however, held that the appellant’s repudiation did not serve to deprive him of his right to damages for the employer’s failure to give adequate notice. The Court declared that the appellant was entitled to six-months reasonable notice and that his damages should be calculated based on a notice period of five months (i.e., six months less the five weeks of notice actually given). The Court concurred with the trial judge that the appellant was not entitled to punitive

damages as there was no finding of wrongful dismissal. The appellant was awarded allowable disbursements in the Court of Appeal and in the Supreme Court. His claim for unpaid holiday pay was dismissed as it should have been enforced through the remedies provided under the ESA. The Court absolved Gould from personal liability and dismissed the action against him without costs.

4

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Enviro West Inc. v. Copper Mountain Mining Corporation, 2012 BCCA 23  Areas of Law: Negligence; Standard of Care; Contributory Negligence CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

he appellants were Copper Mountain Mining Corporation, Similco Mines Ltd., Boundary Electric (1985) Ltd. and 0712603 B.C. Ltd. dba Canyon Electric. The respondent was Enviro West Inc. (“Enviro West”). The appellants engaged EnviroWest, a waste oil collection firm, to remove and transport waste oil from an old transformer at a mine site. The waste oil from the leaking transformer was later found to be heavily laden with polychlorinated biphenyls (“PCBs”) which contaminated Enviro West’s

truck, storage tank, and peripherals. Because of the PCB contamination, environmental protection agencies required Enviro West to clean up its facilities and ensure that the contaminated oil was destroyed. Enviro West subsequently sued the appellants to recover the costs of remediation. The trial judge found the appellants collectively liable in negligence in failing to inform Enviro Waste of the high levels of PCBs in the waste oil, and awarded damages to Enviro Waste in the amount of $655,337.81 plus interest. The trial judge also dismissed the appellants’

• Estate Litigation • Debt Recovery • Medical Malpractice • Shareholder Disputes 604-669-6609 hobbsgiroday.com 908-938 Howe Street, Vancouver, V6Z 1N9 February 2012

5


604.879.4280 | info@onpointlaw.com

Enviro West Inc. v. Copper Mountain Mining Corporation(cont.) claim of contributory negligence, finding that the actions of Enviro Waste’s truck driver did not constitute negligence. On appeal, the appellants

argued that the trial judge erred in failing to consider all relevant factors and evidence in determining the existence of contributory negligence.

APPELLATE DECISION

T

he appeal was allowed and the matter was remitted to the Supreme Court of British Columbia. The Court of Appeal explained that to establish contributory negligence, it must be shown that the plaintiff failed to take reasonable care of its own interests and that such failure was causally connected to the loss sustained. In the present case, the appellants’ claim of contributory negligence was based not only on the actions and omissions of Enviro West’s truck driver but also on the company’s conduct, including for instance, its response to information that the waste oil contained PCBs, its operating procedures and the training provided to its staff regarding safe practices. The Court found the trial judge’s reasons for judgment wanting as they focused only on the truck driver’s handling of the situation without consideration of the relevant criticisms raised against Enviro Waste’s conduct under the circumstances. The Court directed that a trial be conducted to consider all relevant factors bearing upon Enviro West’s compliance with its duty to take reasonable care of its own interests as a waste collector

and transporter. The Court also directed that should there be a finding of contributory negligence after trial, the judge must accordingly assign the respective degrees of fault among the parties.

6

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Cassells v. Ladolcetta, 2012 BCCA 27  Areas of Law: Damages; Causation; Expert Evidence; Mitigation CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

he appellants were Meeyoung Ladolcetta and Adrian Tatsuki Wilding. The respondent was John Franklin Cassells. In October 2005, the respondent, who was then a plumbing apprentice, suffered serious injuries as a result of a head-on collision. After trial, the judge held the appellants solely liable for the accident and ordered them to pay substantial damages to the respondent. The

judge reduced the amount of damages for the respondent’s non-pecuniary loss by 20% and his past income loss by 30% based on the finding that the respondent failed to mitigate those losses by taking recommended medication in the spring of 2007. The respondents challenged the award of damages, arguing that the trial judge erred in finding that the accident caused serious life-altering aggravation of the respondent’s pre-existing psoriasis and psoriatic arthritis. They also contended that the trial judge erred in not finding that the respondent failed to mitigate his loss to a greater extent by refusing recommended treatment in 2006. The appellants further asserted that the award of damages was inordinately excessive.

Honouring Referrals. Respecting Relationships. 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

February 2012

7

Email Us: Michael Thomas Terry Robertson, QC Mandeep Gill Bernie Buettner


Better care for a better life

604.879.4280Home | info@onpointlaw.com care

designed especially for you

Cassells v. Ladolcetta, (cont.) Vancouver office

APPELLATE DECISION

604.873.2545 1.866.227.3106

• Nursing • Personal Care • Home Support • Companionship

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

T

8

If you ar are requ that pro support you owe informa In this r Guide R which c

A Comp

www.bayshore.ca

he appeal was dismissed. The Court of Appeal upheld the trial judge’s finding of causation based mainly on expert evidence, concluding that the respondent’s medical condition was aggravated by the trauma and stress caused by the accident. The Court observed that the opinion of the expert witness was not mere uncertain theory but was based on years of experience. The expert’s conclusion was supported by other opinion evidence and was consistent with the evidence pertaining to the respondent’s medical condition and the deterioration of his quality of life after the accident. On the issue of mitigation, the Court observed that instead of using the “modified subjective” analysis, the trial judge should have considered mitigation on an objective basis. Nonetheless, any error in the analysis would not have materially altered the mitigation ratios applied by the trial judge, especially considering that the recommended treatment only had a 50% success rate. Having found

Records

Estate Litigation I can help. • Past President, TLABC • P ast Chair Wills & Trusts Section, CBA • O ver 36 years of litigation experience

Trevor Todd Wills Estates Estate Litigation Referrals Welcome. P | 604 264-8470 www.disinherited.com E | rttodd@disinherited.com

Another a compa legal en do busin own nam requirem taxes, a A comp than do

The where it through issues m choice.

The incorpor a decisi conside carrying and com would b

Prof recomm this ass

Caution

This arti a compl requirem in busin prelimin commen on inform of writin We reco consult acting o this artic specific legislatio

Kathryn with Pag Account

Kathy@ 52

The Society of Notaries Public of British Columbia

no error in the trial judge’s findings regarding causation and mitigation, the Court declined to interfere with his award of damages.

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Peier v. Cressey Whistler Townhomes Limited Partnership, 2012 BCCA 28 Areas of Law: Contracts; Condition Precedent; Termination CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

he appellants were Cressey Whistler Townhomes Limited Partnership and 629220 B.C. Ltd. The respondent was Michael Peier (“Peier”). In 2007, Peier purchased from the appellants a townhouse which was to be completed by December 1, 2009 (the “Outside Date”). As Peier was concerned about the overhead power lines along the road where the townhouse was to be constructed, the parties executed an addendum to the purchase agreement providing that it was a condition of the contract that the power lines would be buried prior to completion. It was also agreed that if the power lines could not be buried, Peier could, at his option, cancel the contract and recover the deposit he paid, including interest. The power company agreed to bury the power lines February 2012

and the appellants paid it to do so in July 2008. However, the lines were not buried until December 11, 2009. In the meantime, the construction of the townhouse was delayed as several deficiencies identified by Peier had to be rectified. Under the agreement, the purchaser was bound to complete the purchase despite outstanding deficiencies, and the vendor could extend the completion date for up to 120 days. As the purchase of the townhouse did not close on November 18, 2009, the completion date first set by the appellants, Peier commenced legal action on November 23, 2009, to recover his deposit on the basis that the purchase agreement was terminated. This development notwithstanding, the appellants sought to close the transaction by extending the completion date to December 21, 2009. As Peier refused to complete the purchase, the appellants filed a counterclaim for damages. After a summary trial, the judge ruled in favour of Peier, holding that he was entitled to terminate the agreement and the appellants were not entitled to delay the completion date because the condition that the power lines would be buried was not satisfied on the November 18, 2009 completion date. On appeal, the appellants contended that their delay in satisfying the condition precedent served only to suspend the parties’ obligations to complete the purchase; it did not give Peier the right to terminate the agreement.

9


604.879.4280 | info@onpointlaw.com

Peier v. Cressey Whistler Townhomes Limited Partnership, (cont.) APPELLATE DECISION

T

he appeal was allowed and Peier’s action was dismissed. The Court of Appeal held that the delay in burying the power lines did not entitle the purchaser to cancel the contract, as such requirement was a condition precedent that merely served to suspend the parties’ obligation to complete the transaction until the condition was met. The Court ruled that Peier was bound to complete the purchase on December 21, 2009, the subsequent completion date fixed by the appellants, as the power

lines had been buried by this date. The question pertaining to the remedies available to the appellants was remitted to the trial court for determination based on the existing record.

10

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Preymann v. Ayus Technology Corporation, 2012 BCCA 30 Areas of Law: International Agreements; Forum Selection Clause; Forum Non Conveniens CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

were in German and contained forum selection clauses referring to Salzburg, Austria as the forum in the event of disputes arising from the contract. The parties also agreed that the laws of Austria would govern the agreement. Ayus defaulted on the loan in 2010. Consequently, Preymann sued Ayus in British Columbia. The chambers judge stayed the action on the basis that while the British Columbia Supreme Court had territorial competence over the proceeding, jurisdiction should be declined in light of the forum selection

he appellant was Hans-Christian Preymann (“Preymann”). The respondent was Ayus Technology Corporation (“Ayus”). In May 2008, Preymann, a resident of Salzburg, Austria agreed to lend Ayus, a British Columbia company, one million Euros. Both the original and amended versions of the agreement between the parties

O

1

N P 1

3

O

1

I

1

N

1

T

1

Sometimes, your next move is obvious. LEGAL MEMORANDA

op

FA C TA CPD RESEARCH VIDEOS

www.onpointlaw.com

February 2012

ONPOINT

LEGAL RESEARCH

Lawyers helping lawyers for over 12 years.

604.879.4280

11

info@onpointlaw.com


604.879.4280 | info@onpointlaw.com

Preymann v. Ayus Technology Corporation, Rubber, (cont.) clause specifying Austria as the parties’ forum of choice to resolve any disputes arising from their contract. Preymann appealed the stay order arguing that the forum selection clause was ambiguous and hence unenforceable. He also asserted that the forum selection clause should not be considered in determining a court’s territorial

competence because the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) codified the law on territorial competence, and was silent on the effect of a forum selection clause. Preymann argued in the alternative that the venue clause could be considered as one of the factors to be considered in the forum non conveniens analysis under s. 11 of the CJPTA and, given the facts of the case, the appropriate forum was British Columbia.

Collision Reconstruction Product Liability Safety Systems Madymo Modeling Injury Biomechanics Human Factors 43 Skyline Crescent NE Calgary, AB T2K 5X2 P (403) 250-7533 F (403) 250-5347

4640 Admiralty Way, 5th Floor Marina del Rey, CA 90292 P (888) 427-2747 F (866) 550-5347

www.collisionanalysis.com mail@collisionanalysis.com

Putting the Pieces Together for You

APPELLATE DECISION

T

he appeal was dismissed. Upholding the stay order, the Court of Appeal agreed with the chambers judge that the forum selection clause in the loan agreement should be enforced. The Court explained that in a dispute involving a forum selection clause, if the court had determined that it has territorial competence, the next step was

to examine whether the subject clause was clear, unambiguous and enforceable. In the present case, the Court interpreted the forum selection clause as clearly reflecting the parties’ intention to make Salzburg, Austria their forum of choice. The appellant was thus left with the burden of proving that there was strong cause to refuse enforcement of the clause. However, no evidence was presented to show that Austria was not the most convenient forum. The Court further observed that neither of the parties sought a transfer of the proceedings to another jurisdiction.

12

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Take Five Classified MANAGER, REAL PROPERTY LEGAL SUPPORT SERVICES New Westminster, BC

The Manager will be responsible for overseeing the Real Property practice area including the day-to-day operations of the division. The incumbent will be directly responsible for managing a team of approximately 12 people. As a member of the senior leadership team, the Manager will also be responsible for developing and implementing effective strategies to ensure the financial well being and growth of the division. This role requires either a solicitor or professional notary who is currently eligible to practice in British Columbia. The successful candidate will have natural leadership abilities, and the ability to coach and mentor others. Additionally, the incumbent must have strong client-relation skills; be results driven with the demonstrated ability to influence others; entrepreneurial with the ability to execute on new ideas; strong business acumen and superior communication skills. From time-to-time the incumbent will be required to spend time outside of the office in order to develop client and industry-related relationships. Attendance at industry events, outside of regular business hours will be required. Occasional travel to other Company office locations (Vancouver, Victoria) may also be required from time-to-time. If this career opportunity is of interest, please forward a cover letter and resume to jobs@dyedurhambc.com attention: Manager, Human Resources. Please indicate the title of the position you are applying for in the subject line of your email. While all applications are reviewed, only those candidates who are being considered for a short-list will be contacted. No phone calls please.

February 2012

13


604.879.4280 | info@onpointlaw.com

Take Five Classified LEGAL RESEARCH LAWYER

OnPoint Legal Research Law Corporation is looking for an excellent and experienced research lawyer to join its team. The successful candidate must possess top-notch research skills and analytical ability, and be an exceptional writer. We require our research lawyers to have practised law in British Columbia for at least two years. Preference will be given to candidates who have completed a clerkship. The position is for a part-time research lawyer. It is particularly suitable for an LL.M. student or other professional who has other part-time commitments and is looking to add to his or her existing workload. Please apply, in confidence, to Sarah Picciotto at spicciotto@onpointlaw.com.

Searching for an associate, selling a practice, or renting office space? Take Five is received by over 1,600 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.

14

OnPoint Legal Research | Take Five


604.879.4280 | info@onpointlaw.com

Who is OnPoint?

O

nPoint is a law firm of on-call research lawyers, all of whom have completed clerkships and litigated with downtown law firms. “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 Zack Ehrlich

For over 12 years, our firm 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. T.604.879.4280 F.604.648.8930 info@onpointlaw.com www.onpointlaw.com

Sarah Picciotto, B.A., LL.B. Founder of OnPoint Legal Research Law Corp.

“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.”

“All of us at Taylor Veinotte Sullivan use OnPoint’s researchers on our cases. OnPoint’s expertise in a wide range of complicated commercial litigation is invaluable to a firm of our size and is also a real costs savings to our clients”

Angiola De Stefanis, Alliance Lex Law Corp. February 2012

Carey Veinotte, Taylor Veinotte Sullivan

15


BC Take Five February 2012