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October 2011

BRITISH COLUMBIA EDITION EDITION

INSIDE THIS ISSUE: Featured Cases: 6

op

Family Law; Child Support; Conspiracy

ONPOINT

8 12 10

Abuse of Process; Estoppel; Res judicata; Fresh Evidence

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Constructive Trust; Negligence of Counsel

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Class Actions; Settlement Agreements; Variation of Consent Orders

Workers’ Compensation; Opportunity to be Heard

LEGAL RESEA RCH Prepare to Win.

Legal Research Seminar - Early Bird Pricing Ending October 15: 2

Learn and Earn 6 CPD credits while learning from a panel of research experts on November 15, 2011


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Legal Research: From Problems to Solutions 2011 Earn 6 CPD Credits INCLUDES 2 HOURS ETHICS/PRACTICE MGMT COMPONENT

Comments from 2010 attendees: “For a lawyer in private practice who wants to research the law

November 15, 2011 The Sutton Place Hotel 9:00 am - 4:00 pm

with confidence, it was well worth the price of admission.”

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Legal Research: From Problems to Solutions 2011

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nPoint Legal Research L.C. has been researching for other lawyers for over 12 years. In the third annual presentation of this course, OnPoint research lawyers and guest research experts will draw from their 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 lead an interactive session on how to approach a sample legal issue.

Who should attend?

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

We have created this course for all levels. It is appropriate for senior lawyers wanting a refresher course or needing to be updated on the lastest techniques, junior lawyers wishing to become better researchers, and students wanting to start off their careers with valuable tips from research specialists. Paralegals will also benefit from this course.

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., a stint 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.

Gregory Pun, Alexander Holburn Beaudin & Lang, LLP- Greg is Alexander Holburn’s Director of Research and heads the Appeals Practice Advisory Team. As research lawyer, his practice is primarily focused on providing research memoranda to colleagues, and assisting in the preparation and drafting of opinion letters and trial arguments. As head of the Appeals Practice Advisory Team, he assists lawyers inside and outside of the firm with the preparation of all appeal materials and with appellate advocacy.

Meghan Maddigan, Legal Community Liason, Courthouse Libraries BC- Meghan is the point person for training at the library and is committed to

helping lawyers succeed in their practice through outreach. Meghan will show you ways that you can conduct legislative research effectively and efficiently. Prior to joining Courthouse Libraries BC in 2010, Meghan practiced law for five years with a small firm where she gained first-hand experience learning what is required to conduct successful legal research in private practice.


Agenda- Legal Research: From Problems to Solutions 2011 8:30- 9:00

Registration and Pastries and Coffee

9:00- 9:20

Welcome from Sarah Picciotto, Founder of OnPoint

9:20-10:00 Gregory Pun- “Preparing for the Trek”

- The How and Why of legal research - The importance of obtaining the proper facts, instructions, and scope of the research - Ethical and practice management considerations

10:00- 10:30 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

10:30- 10:45 Coffee break (with pastries) 10:45- 12:00 Ellen and Gregory- “Navigating the Electronic Terrain”

- Insider tips from research lawyers 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- 1:00 Lunch (on own) 1:00- 2:00

Meghan Maddigan- “Tackling Legislative Research Like a Pro”

- Making it modern: How to ensure you are looking at the most current, in-force laws - So many sources, so little time: Where to start and finish when looking at legislation - Working backwards: How to trace specific provisions through time - Who said what: Finding judicial consideration of legislation


Agenda (cont.) 2:00- 2:20

Gregory- “Legislative Research- Some Roads Less Travelled”

- Points on legislative research (electronic and paper) - Hansard, bills, proclamations, regulations, Court Rules - Old and repealed statutes

2:20- 2:45

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

Ellen- “Mapping Your Route”

- Keeping notes for future research or defend research choices - A review of our Research Checklist

2:45- 3:00

Coffee break (with goodies)

3:00- 4:00

Ellen and Gregory- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Course Registration Form Date: Format: Location: Price:

November 15, 2011- 9:00 to 4:00 (continental breakfast starts at 8:30) Live Program with Materials The Sutton Place Hotel, Vancouver Early Bird (register before Oct.15): Regular: $425; Paralegal: $375; Student: $250 After Oct.15: Regular: $495; Paralegal: $425; Student: $295

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Waters v. Michie, 2011 BCCA 364 Areas of Law: Family Law; Child Support; Conspiracy Under Appeal: Justice Loo

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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as Ms. Waters. Ms. Waters asserted that Ms. Michie held a 50% in the properties transferred by Mr. Michie, or alternatively, that the said transfers were void under the Fraudulent Conveyance Act. Ms. Waters also sought damages for fraudulent misrepresentation and conspiracy. Ms. Michie subsequently filed an application to strike the plea of conspiracy as it raised no reasonable claim. The chambers judge allowed the application and ordered the conspiracy claim struck. On appeal, Ms. Waters argued that the conspiracy plea should have been allowed as against Ms. Michie because the claim was based not on a breach by Ms. Michie of a family law obligation, but on her breach of creditor protection laws. Ms. Waters also cited jurisprudence in which conspiracy claims were allowed to proceed in the family law context.

he appellant was Jodi Lynn Waters. The respondents were James Alexander Michie and Dawn Lanelle Michie. Mr. Michie and Ms. Waters were married in 1992 and divorced in 1999. In 2001, the former spouses entered into minutes of settlement regarding child and spousal support and division of property. In 2004, Mr. Michie married Ms. Michie. Ms. Waters later alleged that Mr. Michie fraudulently concealed income and property prior to and since the execution of the minutes of settlement to avoid paying child support. Ms. Waters was granted leave to file a statement of claim based on such allegations, and Ms. Michie was included as a party. Ms. Waters claimed that Mr. Michie transferred two properties to Ms. Michie in sham transactions intended to defraud creditors such

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Waters v. Michie, (cont.) APPELLATE DECISION

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he appeal was dismissed. The Court of Appeal, citing the obiter in Frame v. Smith (2 SCR 99), considered the policy implications of extending the tort of conspiracy to the family law context, and held that the appellant’s conspiracy claim should be struck as it raised no reasonable claim. The Court ruled that the child support legislation provided ample remedies to the appellant for damages arising from

the frustration of the proper calculation of child support. With respect to the appellant’s claim for additional remedies to enforce payment of child support, the Court observed that the appellant had not pleaded sufficient facts to support her claim that she was precluded from enforcing child support orders against Mr. Michie. Even if the appellant had sufficiently pleaded the claim, she would have had

Vancouver Legal Media

adequate remedies under creditor protection laws. The Court also explained that the principle of merger precluded the appellant’s conspiracy claim because the alleged unlawful acts were independently actionable claims that were also pleaded. In the present case, since the conspiracy plea added nothing to the appellant’s statutory claims, it disclosed no reasonable claim and was therefore properly struck. AVAILABLE SERVICES DAY IN THE LIFE A video which places an audience into the daily struggles of the plaintiff. SETTLEM ENT DOCUMENTARY Journalistically shot and edited, our documentaries address the real human tragedy and cost of your case. ANIMATED AND “REAL LIFE” REENACTM ENT Graphics and dramatized video give an additional visual impact to witness testimony. DEPOSITONS Professional picture and audio quality.

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Petrelli v. Lindell Beach Holiday Resort Ltd., 2011 BCCA 367 Areas of Law: Abuse of Process; Estoppel; Res judicata; Fresh Evidence Under Appeal: Justice Joyce

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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statement of claim arguing that it was an abuse of process for the appellant to defend the action because a substantially similar dispute was already resolved by the Supreme Court in favour of the plaintiff in Bahry v. Lindell Beach Holiday Resort Ltd., 2009 BCSC 632. The chambers judge agreed with the respondents and allowed the rescission of the impugned contract. On appeal, the appellant argued that the chambers judge erred in considering its defence as an abuse of process. It also argued that contrary to the chambers judge’s finding, the issue of legal non-conforming use was neither raised nor determined in Bahry. The appellant further requested that the Court of Appeal consider the pleadings in the Bahry action which were not before the chambers judge, as they would show that the non-conforming use issue was never considered in Bahry.

he appellant was Lindell Beach Holiday Resort Ltd. The respondents were George Petrelli and Rita Petrelli. In 2007, the respondents bought a holiday home at the appellant’s trailer park. Their friends, the Bahrys, bought a unit at the park a few months before the Petrellis did. In 2008, the Bahrys successfully sued for the rescission of the contract of sale of their holiday home based on the claim that the location of their unit in the park violated municipal bylaws, and hence constituted a fundamental breach of the sale agreement. The Petrellis commenced a similar action against the appellant in 2009. The appellant filed a statement of defence, asserting, inter alia, that the location of the Petrellis’ unit in the park was a legal non-conforming use of the land. The respondents amended their

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APPELLATE DECISION

A Com

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he appeal was allowed. The Court held that it could not take judicial notice of the pleadings in Bahry because the contents of court records were neither matters of general knowledge nor could they be readily ascertained. The Court nonetheless proceeded to consider the pleadings as fresh evidence because they were essential to the determination of whether there was an abuse of process. They would also be useful in clarifying the procedural history of the case. The Court ruled that contrary to the chambers judge’s finding on issue estoppel, the matter of legal non-conforming use was not litigated in Bahry. Hence, the appellant did not abuse the process when it raised the defence to the respondents’ claim. The order of the chambers judge was set aside and the matter was remitted to the Supreme Court for a new trial.

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Bagri v. British Columbia (Workers’ Compensation Board), 2011 BCCA 368 Areas of Law: Workers’ Compensation; Opportunity to be Heard Under Appeal: Justice Loo

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellant was the Workers’ Compensation Board of British Columbia (“Board”). The respondent was Avtar Singh Bagri. On September 11, 1992, Mr. Bagri sustained injuries to his upper right back and shoulder while working as a lumber grader at a sawmill. He was granted workers’ compensation benefits until March 7, 1993. In 1994, Mr. Bagri was diagnosed as suffering from fibromyalgia. He requested to have the condition included in his compensation claim for the 1992 injury, but his request was denied by the claims adjudicator and appeals to the Review Board and the Board’s Appeal Division were unsuccessful. In August 1996, Mr. Bagri requested that a medical review panel examine whether his fibromyalgia condition was caused by the 1992 work-related injury. Before the panel was constituted, a psychiatrist diagnosed Mr. Bagri as suffering from depression

and anxiety which Mr. Bagri also attributed to his 1992 work-related injury. The adjudicator refused to include the psychological condition in the compensation claim after finding no connection between Mr. Bagri’s psychological condition and the 1992 accident. The medical review panel was constituted with two rheumatologists and one family physician. The dispute before the panel was whether Mr. Bagri’s fibromyalgia was causally related to the compensable injury he sustained in 1992. In 1998, the panel issued a certificate stating that Mr. Bagri suffered from a generalized anxiety disorder which was not caused by the 1992 accident. The panel also found that Mr. Bagri did not suffer from fibromyalgia. Based on the panel’s findings, the adjudicator denied Mr. Bagri’s claim for further benefits. As the Review Board denied his appeal, Mr. Bagri elevated the matter to the Appeal Division, but the appeal was later withdrawn. In 2003, Mr. Bagri’s lawyer filed a petition for judicial review, naming the Board as the only respondent and seeking to set aside the medical review panel’s certificate on the ground that it was unlawful for the panel to have made findings about Mr. Bagri’s psychological conditions as this was not within the panel’s area of specialization. The chambers judge allowed the petition and set aside the panel’s certificate. She concluded that the certificate was unreasonable because Mr. Bagri had not expected that his psychological conditions would be considered by the panel and he was not given a fair opportunity be heard on the matter. The chambers judge also set aside the decision of the Review Board upholding the adjudicator’s finding that Mr. Bagri’s anxiety disorder was not caused by the 1992 accident. The Board appealed, arguing that the chambers judge erred in finding that the certificate of the medical review panel and the decision of the Review Board were unreasonable.

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Bagri v. British Columbia, (cont.) APPELLATE DECISION

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he appeal was allowed and the petition for judicial review was dismissed. The Court of Appeal held that the decision of the Review Board could not be subject to judicial review by the chambers judge as neither the Review Board nor its successor, the Workers’

October 2011

Compensation Appeal Tribunal, was served with the petition. The Court disagreed with the conclusion of the chambers judge that the certificate of the medical review panel was unreasonable. The Court observed that there was no evidence to support the position that Mr. Bagri was denied the opportunity to be heard as he or his counsel knew or should have reasonably known that the panel would be considering Mr. Bagri’s psychological conditions. The Court also held that Mr. Bagri’s counsel himself knew that the medical review panel was not restricted to the dispute identified in the certificate.

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Ladner v. Wolfson, 2011 BCCA 370 Areas of Law: Constructive trust; Negligence of Counsel Under Appeal: Justice Smith

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellants were Harvey Wolfson and Ganapathi Ashcroft and Company. The respondent was Julie Marjorie Ladner. Ms. Ladner and her now deceased former husband, Hugh Ladner, executed a separation agreement in which he undertook to pay her monthly spousal support and maintain life insurance in an amount sufficient to cover his support obligations. Upon Mr. Ladner’s death, it was discovered that he failed to provide for the stipulated life insurance. His estate was also insolvent. Ms. Ladner successfully sued his estate for damages for breach of the life insurance clause in the separation agreement. After she was awarded $417,621in damages, Ms. Ladner attempted to pursue a claim in trust for the insurance proceeds payable to the estate, but was unsuccessful at trial and

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on appeal. Subsequently, Ms. Ladner sued her solicitor, asserting that he was negligent in failing to pursue a trust claim before or concurrently with the damage claim. The trial judge found that the solicitor was negligent in failing to advance Ms. Ladner’s trust claim in a timely fashion. On appeal, the appellants argued that the trial judge erred in finding that the failure to advance the trust claim caused a loss to Ms. Ladner, and that such failure was a breach of the standard of care owed by the appellants. The appellants argued in the alternative that the trial judge erred in calculating the damages. Ms. Ladner filed a cross-appeal with respect to the computation of damages.

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Ladner v. Wolfson, (cont.) APPELLATE DECISION

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he appeal was allowed and the action together with the cross-appeal was dismissed. The Court ruled that even if the constructive trust claim was pursued, it would not have succeeded. Thus, any negligence attributable to the solicitor would not have resulted in any loss to Ms. Ladner. The

SS

Court held that contrary to the findings of the trial judge, a good conscience constructive trust could not have arisen because the relationship between the spouses after their separation did not involve continuing fiduciary and equitable obligations. Also, there was no proprietary connection between the insurance proceeds payable to the estate and the insurance policy contemplated in the separation agreement. As such, the trust claim could not be imposed on the insurance proceeds payable to the estate.

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Bodnar v. The Cash Store Inc., 2011 BCCA 384 Areas of Law: Class Actions; Settlement Agreements; Variation of Consent Orders Under Appeal: Justice Griffin

CLICK HERE TO ACCESS THE JUDGMENT

BACKGROUND

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he appellants were The Cash Store Inc. (“Cash Store”) and Rentcash Inc. The respondents were Andrew Bodnar and Jose Bartolome. The appellants were sued in a class action for charging and collecting illegal fees relating to payday loans made to class members. In May 2009, the parties reached a Settlement Agreement which was approved by the Supreme Court. Cash Store was appointed Settlement Administrator, while Epiq Systems Inc. (“Epiq”) was the Claims Process Reviewer. The Approval Order affirmed the continuing role of the court in providing direction in any matter arising under the Agreement. The class counsel

later sought an order removing Cash Store as the Settlement Administrator based on complaints from class members that Cash Store was unable to carry out its administrative duties with competence and transparency. The chambers judge found sufficient evidence to support the complaints, noting that Cash Store had miscalculated class members’ claims, and that it had not been straightforward in its administration of the claims process. She also found that the Class Proceedings Act and the terms of the Settlement Agreement gave her inherent and supervisory jurisdiction to remove and replace Cash Store as Settlement Administrator. In her order, however, the chambers judge did not expressly remove Cash Store as Settlement Administrator and appoint Epiq in its place, but it was implicit in the order that Epiq had assumed the role. On appeal, the appellants argued that by issuing the order, the chambers judge exceeded her supervisory jurisdiction over the administration of the settlement, and that the order was contrary to the intention of the parties to the Agreement and the law on variation of consent orders.

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Bodnar v. The Cash Store Inc., (cont.) APPELLATE DECISION

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he appeal was dismissed. The Court of Appeal explained that while the Settlement Agreement was merged in the Approval Order, such merger did not limit the supervisory jurisdiction of the chambers judge under the Class Proceedings Act and the terms of the Agreement. Contrary to the appellants’ claim that the impugned order varied the terms of the

Agreement, the Court found that the chambers judge merely exercised her authority to change the administrative aspects of the settlement. The order did not result in any substantive amendments to the terms of the Agreement, as in fact the duties of the Administrator were administrative in nature and the substance of the settlement would be the same regardless of who was performing those duties. The Court also noted that the chambers judge could not be said to have varied the terms of the Agreement when she ordered Cash Store’s removal and replacement as she merely imposed appropriate terms on Cash Store to enforce its obligation to appoint a new Settlement Administrator in light of its failure in that role. The Court Appeal varied the order of the chambers judge by including a term expressly removing Cash Store as Settlement Administrator and appointing Epiq in its place.

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Who is OnPoint?

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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.”

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.

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

Larry Kahn, QC and Marvin Lithwick, Kahn Zack Ehrlich

“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.

Carey Veinotte, Taylor Veinotte Sullivan

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OnPoint Legal Research | Take Five


BC Take Five October 2011  

The October 2011 British Columbia edtion of OnPoint Legal Research's monthly newsletter, summarizing the top five cases from the British Co...

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