Most people only need one will. For those who are not owners of businesses, this is not an important discussion. BUT for anyone that has an incorporated business this is something to pay attention to.

Let’s say that my clients Joe and Jane Above-Average have been very successful. Assuming an early death of Joe, Jane now has business assets worth say $10 million. In addition, Jane, who is under 65, has a nice house and some investments that amount to another $5,000,000. Under a single will Jane’s estate would be worth $15 million. Probate fees that are paid to the government would be about $210,000. By simply doing the paperwork slightly differently, we can eliminate $140,000 of this amount through a dual will. Though it is important to note that Jane would now need two executors, one for each will. With $140,000 saved, Jane leaves more money to her beneficiaries.

At KSW Lawyers, we believe that this strategy is well worth looking into. Although, the legal work on this has some detail to it and is a bit more expensive, it can be achieved more efficiently and cost effectively if done at the same time as the 'main' will.

From age 65 onwards, Jane should review estate planning more frequently and pay close attention to how to reduce probate fees through planning. In fact, she may be able to eliminate ALL probate costs by establishing an alter ego trust to hold all of assets once she turn 65. By doing so, Jane entirely eliminates probate fees.  This is a fair bit more expensive than a dual will approach and does have some ongoing costs for income tax filing (there are no extra taxes, just a paper filing) so this may not be appropriate for everyone.

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If you have to undergo a workplace investigation, you’ll have a few options on who you can choose to conduct it. Here’s a few reasons why you’ll want to reach out to third party to conduct your workplace investigation, rather than handle it on your own.

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No Neutral Investigator in your Organization

If you don’t have someone in your organization who can conduct the investigation fairly, you’ll want to hire a third-party investigator. Hiring a neutral third party can ensure staff are comfortable sharing what they experienced or witnessed, which they may not be if the investigator is someone they work with. If you hire someone within your organization to lead the investigation and they are biased (or even perceived to be) you can run into issues, including losing trust from your employees and damaging your company’s reputation.

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No Experienced Investigator in your Organization

If no one in your organization has conducted a workplace investigation before, you’ll want to reach out to a third-party. A good workplace investigator will understand what is needed for a fair investigation and be skilled in the process, which can be impossible for someone with no prior experience.

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Potential for Legal Action

If there’s a risk that the issue being investigated could lead to litigation or arbitration, you’ll want to go with a third-party investigator. In the event that you end up in court over what is being investigated, having a detailed report from a fair investigation conducted by an unbiased investigator can make a world of difference.

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There are multiple compelling reasons to contract a third party for your workplace investigation. If you're looking to conduct a workplace investigation, reach out to our highly skilled workplace investigation team to ensure a fair, unbiased process.

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If you have questions or would like to discuss a complaint in your workplace, please contact Fiona McFarlane, Senior Associate,to discuss your legal needs

When looking for a workplace investigator, you’ll want to hire someone who is able to conduct the investigation fairly, without bias. Your goal should be a legally defensible workplace investigation that is fair to all participants.

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Legal Counsel

Thinking of hiring legal counsel for your workplace investigation? You can expect a credible investigator, with plenty of legal knowledge, who can conduct an unbiased investigation. Hiring a lawyer who has the right training and experience shows you’re committed to a fair investigation, which can mean your employees are more likely to trust the process.

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Internal Investigator

Thinking of using someone internal to investigate? Be careful to select someone who is not connected to the complainant or person being investigated.  You want someone who can be neutral, ask questions without any bias (perceived or real) and with sensitivity. Failing to think about these factors can raise concerns about the credibility of the findings, which can damage your reputation.

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Experienced HR professionals

Thinking of hiring an HR professional to conduct your workplace investigation? You can expect them to have extensive knowledge of complicated HR issues.

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If you have questions or would like to discuss a complaint in your workplace, please contact Fiona McFarlane, Senior Associate,to discuss your legal needs

Starting January 1, 2025, British Columbia implemented a new "Flipping Tax" under the Residential Property (Short-Term Holding) Profit Act. This tax targets speculators by applying to residential property sales made within two years (730 days) of acquisition. The tax is calculated based on net income from the sale, with rates varying depending on how long the property was held. If sold within the first 365 days, the tax rate is 20%, decreasing on a sliding scale after that.

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The Flipping Tax applies to individuals, corporations, and trusts selling residential property, including pre-sale contracts and assignments. Certain exemptions exist, including properties used exclusively for commercial purposes, sales by charitable organizations, or transfers between related individuals. Exemptions also apply for sales due to personal circumstances, such as death or relocation, and for builders or developers involved in construction or renovation.

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Sellers must file a tax return within 90 days of disposal unless exempt. Failure to file can result in penalties, with severe consequences for tax evasion, including fines or imprisonment.

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This measure is part of BC’s broader strategy to curb housing price inflation and increase affordability. Property owners should review their situations carefully, especially in light of exemptions, to determine their potential tax liability.

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If you have questions on the new Flipping Tax or your real estate investments, reach out to Aman Bindra at [email protected] or 604-591-7321.

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What are you looking forward to in 2025?

While working collaboratively with employers and fellow lawyers is at the top of my list here are a few other things I am looking forward to:

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1. Great conversations with employers about human rights in the workplace

A lot of workplace investigations occur because of allegations that employee A has made derogatory and humiliating comments about employee B’s personal characteristics, or allegations that employee A has been sexual harassing other employees. If these allegations are true, then employee A has breached the BC Human Rights Code.  This is where I can help by providing advice to the employer about vicarious liability, and I can conduct a workplace investigation.  

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What I like doing more though is advising and updating workplace policies that set out the minimum expectations for behaviour in the workplace.  This is where great conversations about diversity, equity and inclusion occur, and employers can develop policies and a culture that goes beyond their minimum legal obligations.  

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2. Great conversations with employers about fairness in workplace investigations

It is recognized in the courts, and amongst the lawyers I know that conduct workplace investigations, that a fair process when fact-finding is paramount.  For me this means a conversation with the employer about what triggered the need for an investigation, what the scope of work should be, and I discuss how my process is confidential, time-sensitive, proportionate, and culturally and trauma informed.  At the end of the fact finding, I document in my report what I did when so that in the very unlikely event there are legal proceedings and the investigation report is relevant, there is transparency around what steps I took and when.  

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On a more personal note, I am also looking forward to having great conversations about human rights with the teens I volunteer with. These teens, part of Generation Z (born between 1997 and 2012), are educated about human rights and diversity, and are able to articulate what is going right for them and what is going wrong for them in a way that impresses me. The conversations and insights I gain from them gives me hope that when they rule the world there might be less need for workplace investigations.  

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To learn more about KSW Lawyers, how we help clients, and how I can assist you with your workplace investigation, workplace policies or human rights matter, call (604) 591-7321 or visit kswlawyers.ca or email to [email protected]

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Professional Negligence against Immigration Consultants and Lawyers

Professional negligence can occur when a professional fails to fulfill the professional duties or obligations that they were hired by their client to fulfill. This can occur with immigrations lawyers and immigration consultants that have been hired to give a client advice or help them through a visa or PR application. When someone hires a lawyer or consultant to assist with their immigration process, they are hiring somebody who holds themselves out as an individual with qualifications and expertise in the area to assist them. Lawyers and consultants are both regulated professions with codes of conduct, requirements for ongoing education, and professional liability insurance provided by each of their regulating bodies.

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Duty of Care

In order to proceed with a claim for professional negligence against a lawyer or consultant, you must first prove that person owes you a duty of care. The contract between the client and the lawyer or consultant usually satisfies this requirement. The client pays for the lawyer or consultant’s specialized services and expertise, and that relationship creates a duty of care. There are also professional responsibilities and obligations imposed on lawyers and consultants by their regulating bodies that make clear when a duty of care should exist. For example, no duty of care comes to exist by merely reading a blog post on a law firm’s website.

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Standard of care

Claims for professional negligence also require you to establish that the lawyer or consultant breached their duty of care by falling below the standard of care for a person of their skills and qualifications. This legal standard can be quite tricky to establish and will vary from case to case. In general terms, the lawyer or consultant must give the client reasonable, competent, and accurate advice.

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A higher standard of care is applied to persons who represent themselves as having special skills or knowledge in an area that allows them to perform tasks that are normally beyond the capacity of the ordinary person. For example, when hiring an immigration consultant to fill out and submit a PR application, there is a reasonable expectation that they have specialized knowledge in how to fill out the form or know how to acquire the correct information. If they fill out your forms with the wrong codes and inappropriate information for the application, there is a likelihood that they have failed their standard of care. It is also important to note that there is likely a different standard of care imposed on a lawyer or consultant who simply reviewed an application completed by the client before submitting it on a client’s behalf, and a lawyer of consultant hired to fully manage the application process from start to finish.

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In order to determine the reasonable standard of care for a lawyer or consultant, expert evidence and references to their respective codes of conduct will be required. A lawyer’s code of conduct would be determined by their local Law Society, depending on which province they are located. A College of Immigration and Citizenship Consultants (CICC) registered consultant is subject to the CICC’s Code of Professional Conduct which states at paragraph 4:

“4 (1) A licensee must uphold the standards of the profession and perform their professional obligations honourably and with integrity.

(2) A licensee must not engage in conduct that is likely to discredit the profession or jeopardize the public’s confidence and trust in the profession.”

The courts have held that the standard of care is that of the reasonably prudent and competent member of the particular profession. In Romans v. Howlund International Corp., a case in Alberta the defendant immigration consultant failed to advise the plaintiffs about the availability of a flagpole application. The plaintiff and defendant both provided expert evidence of an immigration consultant’s standard of care. The court found that the immigration consultant fell below the standard of care because they ought to have advised the plaintiffs that flagpole applications existed and that the failure to do so did not accord with what would be expected of a reasonable immigration consultation with similar knowledge.

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Losses Suffered

Even if you have established a breach of the standard of care, you will not be able to proceed with a claim in professional negligence unless you can show a loss as a result of that breach. This loss can be financial, injuries, pain and suffering etc. The most common loss in relation to negligence by a lawyer or consultant is that the client losses their immigration status and as such losses their income. As an example, this can occur where a client has hired a professional to assist with their immigration, and because of mistakes made on the paperwork by the professional, the client’s immigration status is lost, meaning their legal authority to work in Canada is also revoked. In this situation a person would lose their employment income until such a time as they could restore their status and legally work again.

The client may also incur expenses to restore their status like hiring a new lawyer or consultant to fix the previous errors. The court will award damages based on the total losses a person incurred as a result of the negligence so it’s important to keep track of any and all losses related to the negligence.

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In summary, a case may have lots of the elements required above to proceed with a claim of professional negligence against an immigration lawyer or immigration consultant. It’s best to consult with a lawyer who can assess these elements with regard to your specific case, review the documents related to your case and give advice tailored to your situation.

Please contact our office if you would like to discuss a situation like this in more detail and we will arrange a consultation with a lawyer that specializes in this area.

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KSW Lawyers is thrilled to have Kanchan K. Dhahan and Aman S. Bindra join the partnership effective January 1, 2025

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Surrey, BC, January 1, 2025 – KSW Lawyers, a leading law firm in the Fraser Valley and Lower Mainland, is pleased to announce Kanchan K. Dhahan and Aman S. Bindra have joined the firm’s partnership.

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“I’m proud to be joining the partnership of KSW Lawyers and look forward to contributing to the continued growth of the firm,” says family lawyer Kanchan K. Dhahan.

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Kanchan has been with the firm since 2022 and has practiced law since 2012. As the founder and head of the KSW Family Law Group, Kanchan is an accomplished litigator with experience in all areas of family law and all levels of court in BC. Kanchan’s commitment to excellence has not gone unnoticed, as she was recognized as a Leading Practitioner “Lawyer to Watch” by the Canadian Lexpert Directory in 2023. A longtime resident of the Lower Mainland, Kanchan currently resides with her family in Surrey.

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“I am grateful to have the opportunity to continue working hard for our clients in my new role as partner.” Says business and real estate lawyer Aman S. Bindra.

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Having joined KSW Lawyers in 2022, Aman has already made a big impact at the firm. He was recognized in the 2024 and 2025 Best Lawyers: Ones to Watch in Canada™ publication for his work in real estate, commercial leasing, and corporate law and including numerous multi-million-dollar real estate deals and transactions across the province. Aman is committed to serving his community, as demonstrated by his volunteer work with the Banking and Real Estate sections of the Canadian Bar Association and serving as a Director of the South Asian Bar Association. As a life-long BC resident, Aman takes pride in providing support and mentorship to the communities where he grew up. Alongside his work as a lawyer, he is also an Instructor at the UBC Sauder School of Business, Real Estate Division, sharing his knowledge and experience with the next generation.

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“We are delighted to have both Kanchan and Aman join the firm’s group of partners,” said Peter McCrank, partner at KSW Lawyers. “We trust the diverse knowledge and experience that Kanchan and Aman bring to our partnership will be instrumental in the firm’s continued growth and success Congratulations, Kanchan and Aman!”

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To learn more about KSW Lawyers and how we can help you with your legal matters, visit kswlawyers.ca or call 604-591-7321.

For more information contact:

KSW Lawyers

Email: [email protected]

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If you own a commercial property that’s leased out to a tenant, be aware that you might be on the hook for builders liens on construction projects that you were not even aware of.

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Under the BC Builders Lien Act, real estate owners are responsible for all improvements on their property of which they have knowledge. If your commercial lease allows tenants to undertake renovations or improvements, that clause is often enough to be considered sufficient knowledge. Under these circumstances, the law implies that you were aware of those improvements, and you could be liable for the tenant’s debt if an unpaid contractor files a builders lien. This applies even if you weren’t involved in the dispute or didn’t know about the improvements.

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You can protect yourself, however, by filing a Notice of Interest (NOI) on title. A NOI establishes that the owner’s interest in the land is not bound by a lien claim unless the improvement was carried out at the express request of the owner. Filing an NOI is a quick and relatively cheap solution to the problems posed by the BC Builders Lien Act. When purchasing commercial property, a NOI should be filed as soon as possible.

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The annual KSW Employment Law Seminar was bigger than ever, with attendees joining us both in-person and virtually! As a result, we received more questions than we could possibly answer in our short few hours together. So, our employment law group decided to share with you the questions (and answers) they weren’t able to get to on conference day.

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How would you recommend handling employees who exhaust their holidays and openly say they’ll just call in sick for any days they want off, for example over the holidays. Even sick days are often abused and doctors don’t give notes for common illnesses. Does an employer have options? In our case it means several employees can’t work without that lead on site who’s using a sick day for a long weekend.

You want to be careful about how you approach this, as you do not want to have a human rights complaint on your hands! If you reprimand (or terminate) the employee specifically for taking sick days, and they do have a condition which is causing their frequent absences, this is exactly what could happen.

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Under the British Columbia Human Rights Code, employers can be on the hook for disabilities that they reasonably should have known were the cause of an employee’s poor performance or absenteeism. This is known as a duty to inquire.

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Under the Employment Standards Act, employers have the right to request “reasonably sufficient” proof of an employee’s absence. “Reasonably sufficient proof” includes any adequate information that establishes or helps to establish that the employee’s absence is due to injury or illness. Illness or injury is broadly defined and includes both physical and mental illness. “Proof” may take many forms, for example, a note from a doctor/NP/counsellor, a hospital bracelet, and/or a receipt from the pharmacy.

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If there is an established pattern of absences, as appears to be the case here, it may be reasonable for the employer to require more stringent medical or other proof of illness, even if the employee’s leave is only one day at a time. You will want to be flexible (at the start) in how you approach the sick note (e.g. if they need a few days to get the note because doctors are busy, if they can’t bring it in for a few days because they are ill, etc.).

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If the employee fails, or refuses to provide notes at all, then you could potentially start setting the employee up for progressive discipline for unauthorized absences. It is important to approach this cautiously and properly. In this regard, it would be helpful (if you do not have one already) to have sick time policies implemented in your workplace relating first, so there is absolutely no uncertainty of the requirements for employees.

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Of course, every situation like this will be different, and should be approached with caution (to ensure you do not have a claim on your hands!). Our best recommendation would be to speak with an employment lawyer first, who can provide specialized advice to your specific situation.

- Courtney Burnett, Paralegal

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What can you do if the reduced hours options if the employee is not able because of affordability.

We believe this question is in relation to reasonable accommodations of an employee and will answer as such. If we have misinterpreted your question, please reach out to us again.

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Under both the Human Rights Code and the Workers Compensation Act, when approaching the accommodation process, the employer has a duty to accommodate an employee to the point of undue hardship. To fulfill this duty, the employer must show that it took all reasonable and practical steps to avoid the negative impact (e.g. termination, having no job for the person to return to, etc.). This includes proving:

• ‍What the employer did to explore options to find a reasonable result;
• Why further steps were not reasonable or practical (would result in undue hardship); and
• The employer’s basis for concluding that it could not accommodate the employee without incurring undue hardship.

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Undue hardship takes many forms and can include financial costs. However, it is not enough to simply say “financial reasons” and that nothing further can be done. An employer must be able to provide evidence of the effect that such accommodation would have on the employer.

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Conversely, the employee has a duty to cooperate with the employer in the reasonable accommodation process. If the employer can show that in order to accommodate the employee, it must provide the employee with a reduced hours position, and there are no other options, but the employee refuses that position, the employee could be failing to meet their duty to cooperate.

- Courtney Burnett, Paralegal

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How should you work with WorkSafeBC and what are the consequences of dealing with WorkSafeBC especially related to bullying and harassment. Can or will WorkSafeBC close an office due to B&H?

The action taken by WorkSafeBC will depend on factors such as the severity and duration of the issues. If, for example, the company has already had previous reported incidents and has failed to correct the issues, it could be subjected to more serious penalties compared to a company that has not previously had reported incidents

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Although WorkSafe has the power to close a workplace for an unsafe work environment, this is a relatively uncommon step. Rather, WorkSafe will more likely attend the workplace to inspect it and/or require that the employer take remedial steps such as a compliance agreement.

- Jenson Leung, Lawyer

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How should a manager (CEO) deal with B&H towards them.

Generally, where a manager is accused of bullying and harassment (or subjected to it), they should not be conducting or directing the investigation. If the workplace has a bullying and harassment policy, it should be followed as it would for any other employee. If there is no such policy, we would recommend ensuring that one is prepared (for future incidents).

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If the CEO or other senior manager is being subjected to bullying and harassment, it may be appropriate to request an external investigation or report the matter to WorkSafeBC. Depending on the nature of the bullying/harassment, it could also give a basis for a constructive dismissal and/or human rights complaint (if it is coming from, for example, a shareholder). If the bullying/harassment is from a subordinate, progressive discipline may be the appropriate avenue. Either way, in a case where a senior manager is involved the manager and the company will likely require separate legal advice.

- Jenson Leung, Lawyer

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What rights do volunteers have regarding B&H. I’m with a new non-profit. I have a staff policy manual. I see where it needs updating regarding working at home and the office, etc. I was with another for about 30 years.

Volunteers can file a claim to the BC Human Rights Tribunal for bullying and harassment if the bullying and harassment is tied to a protected characteristics such as race, place of origin, gender identity or expression, Indigenous identity, marital status, mental and/or physical disability, etc.. They cannot however make a claim to WorkSafeBC for mental health injuries because of bullying and harassment unless the not-for profit has specifically paid premiums to WorkSafeBC for those volunteers. It is recommended that workplace policies, such as respectful workplace and privacy, be applicable to volunteers and outline consequences if the policies are breached, up to and including the end of the volunteer commitment.  

- Fiona H. McFarlane, Lawyer  

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If an employee has cancer and is needing time off for surgery are we able to ask for a dr. note for how long is recommended for the employee to recover?

No, information about an employee’s recovery time cannot be requested from the doctor. If the employee is asking to use their 5 paid sick days or 3 unpaid sick days allowed because of the Employment Standards Act, proof of illness may be requested. If the employee is asking for an unpaid leave of absence and may qualify for EI Sickness Benefits (26 weeks of financial assistance if the employee can't work for medical reasons) then proof of illness may be requested. In both instances, the proof of illness does not need to provide a specific diagnosis or prognosis however should have sufficient information for the employer to understand the employee cannot work due to illness. Timing and what is proof of illness is fact dependent so legal guidance may be required. Due to the sensitive nature of the medical information the proof of illness will contain, the proof of illness should be kept on an need to know basis.  

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Once the doctor has said the employee can return to work after treatment, the employer can ask for a note from the doctor to understand how the employee’s illness and/or any lingering effects of treatment may impact the return-to-work. The request cannot ask for a diagnosis or prognosis however can ask whether there are any limitations that need to be accommodated in the workplace.  Limitations might require reduced hours of work, or changes to the physical demands of the job so the request for a doctor’s note can be accompanied by a job description for the employee so the doctor can comment on which job tasks require accommodations and what are the recommended accommodations. There may be several suitable accommodations, and the standard is not one of perfection, so it is important to have an ongoing dialogue with the employee as they return to work, and you determine how you can fulfill the employer’s duty to accommodate. Failing to accommodate an employee can result in a claim to the BC Human Rights Tribunal so legal guidance is recommended.  

- Fiona H. McFarlane, Lawyer  

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What questions should you ask a potential investigator.

We suggest using a specialist experienced investigator or lawyer to conduct a workplace investigation when the following factors are at play:

• ‍Strong power imbalance between the complainant and the respondent
• Complexity of complaint, where it may involve violence or sexualized content
• Appearance of bias or potential bias to exist if it is kept in-house
• Background and level of experience/training designated person in-house may hold (or not hold)

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Questions to ask:

• ‍Level of experience – have they investigated scenarios like the one you need investigated?
• Training – have they learnt questioning techniques that mean everyone will feel heard, and information is shared on a need-to-know basis?  Are they trauma informed and culturally aware? [Please note there, while some US states require licenses, there is no government agency in Canada issuing licenses for workplace investigators and a license is not a requirement to be a workplace investigator in Canada.]
• Conduct of the investigation and the report – estimated costs and timeline? What is within the scope of the investigation? What is the process going to look like? Are in-person interviews going to take place or are video interviews acceptable? Is travel required?
• Knowledge of rules that establish a fair and defendable process – what does the investigator tell everyone about the confidentiality of the process and retaliation? Do they know the rule in Browne v. Dunn (legal principle that says each party may hear and respond to new or contradictory evidence before the workplace investigator relies on it)

- Bonnie-Louise Lussier & Fiona H. McFarlane, Lawyers

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