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August 2010

BRITISH COLUMBIA EDITION

PINPOINT: What and Where?

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.

Inside this Issue: 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.5 Employment; Defamation- p.6 Estates; Remedies- p.7 Personal Injury; Negligence; Joint Tortfeasors- p.9 Employment; Wrongful Dismissal- p.11

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Legal Research: From Problems to Solutions 2010

O

nPoint 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.

Who should attend?

Earn 6 CPD Credits includes 1 hour ethics component

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

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

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.

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.

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.

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Agenda 8:30- 9:00-

Registration and Continental Breakfast

9:00- 9:10-

Welcome from Sarah Picciotto, Founder of OnPoint

Earn 6 CPD Credits

9:10-10:00- Efrat Arbel- “Preparing for the Trek”

includes 1 hour ethics component

- 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”

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Course Registration Form

Program Name: Date: Format: Location:

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

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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: Card Type:

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

BACKGROUND 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

CLICK HERE TO ACCESS THE JUDGMENT

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.

APPELLATE DECISION 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

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.

Engineers and Scientists specializing in

Transportation Injury Biomechanics Product Property Aviation MEA is an approved Continuing Education provider at the Law Society of BC.

www.meaforensic.com

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

T

he 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

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. CLICK HERE TO ACCESS THE JUDGMENT

APPELLATE DECISION 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.

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Antrobus v. Antrobus, 2010 BCCA 356 Areas of Law: Estates, Remedies Under Appeal: Justice Smith

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT

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BACKGROUND

T

he 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]

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

T

he 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 valuesurvived 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.

CLICK HERE TO ACCESS THE ENTIRE JUDGMENT.

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Bradley v. Groves, 2010 BCCA 361 Areas of Law: Personal Injury; Negligence; Joint Tortfeasors BACKGROUND

T

he 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]

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O

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


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• Nursing Funding Investigations plaintiff to seek recovery The Court•concluded • Personal Care • Free Assessments from any or all of the • Home Supportthat the Athey • Nurse decision Supervised Staff Vancouver office Hour/7 Day Service tortfeasors so long as• Companionship necessarily• 24overruled the 604.873.2545 the plaintiff did not approach in Long. 1.866.227.3106 contribute www.bayshore.ca to her injury.

APPELLATE DECISION

T

he 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

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Lewis v. Terrace Tourism Society, 2010 BCCA 346 Areas of Law: Employment; Wrongful Dismissal

Under Appeal: Justice Joyce CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

T

he 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. APPELLATE DECISION

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.

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BC Take Five August 2010  

The August 2010 British Columbia edtion of OnPoint Legal Research's monthly newsletter, summarizing the top five cases from the British Colu...

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