In a recent decision from the Supreme Court of Canada (SCC) Canada’s highest court overruled a B.C. trial Judge who had decided that the City of Nelson’s snow clearance and removal was an operational, not a policy decision, and therefore was immune from liability arising from Taryn Marchi’s negligence claims.  Taryn Joy Marchi, a nurse, had parked her car in a parking spot on Baker Street. Seeing no other way of getting to the sidewalk she tried to cross the snowbank created by the City’s earlier snow plowing. In trying to climb the snowbank, she seriously injured her leg. She sued the City alleging that the City had been negligent in not creating openings to access the sidewalk. At trial, her case was dismissed. She took her case to the BC Court of Appeal and won the right to a new trial. The City of Nelson appealed that decision to the Supreme Court of Canada.  In Nelson (City) v. Marchi 2021 SCC 41 Canada’s highest court ruled that the City’s snow removal decision was not a policy decision, which would have been a successful defense by the City, but an operational decision. As a result, the SCC held that the City of Nelson owed Ms. Marchi a duty of care. Unfortunately for Ms. Marchi, the SCC decision only clarified the law in this area but did not result in an award of damages for her injuries. The SCC agreed with the B.C. Court of Appeal and held that Mrs. Marchi should get a new trial to assess damages for her injured leg. The SCC decision has clarified the law in this area as to what decisions made by public authorities are immune from tort liability as policy decisions.

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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.

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In the case of Kay v. Randell and Randell 1997 CanLII 2894 (BC SC) Master Patterson made the following comment regarding how the clients in that case had come to select their lawyer:

In her evidence, Mrs. Randell said she trusted Mr. Kay to do the right thing and relied on what he told her. An indication of the lack of sophistication of the clients in the obtaining and use of legal services is that they hired Mr. Kay on the basis of an advertisement in the Yellow Pages,  without apparently making many or any other inquiries. (emphasis added)

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Many times people will select a lawyer based on the 2017 version of the yellow pages, the  Internet. They will google their legal problem and a list of lawyers will come up who profess to have particular skill or expertise in that area of the law. But does that lawyer really have the necessary experience and expertise? How do you know?

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In the era of internet search terms and websites many lawyers will state that they specialize in a  particular area of law. This is so even though the British Columbia Law Society Rules expressly forbid a lawyer from proclaiming him or herself a specialist in any area of the law. Here is the Rule:

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Specialization  4.3-1

Unless otherwise authorized by the Legal Profession Act, the Law Society Rules, or this  Code or by the Benchers, a lawyer must:

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(a) not use the title “specialist” or any similar designation suggesting a recognized special  status or accreditation in any other marketing activity, and

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(b) take all reasonable steps to discourage use, in relation to the lawyer by another person, of the title “specialist” or any similar designation suggesting a recognized special status or  accreditation in any marketing activity.

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Many lawyers will hold themselves out as “trial lawyers”. One would assume this means they go to court a lot, are experienced in the trial process, obtained a number of (hopefully favourable) judgments, and are comfortable being in court. But did you know a newly minted lawyer can hold him or herself out as a “trial lawyer” without ever having conducted a single trial? There is no rule against it.

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Are you choosing our lawyer without doing your own due diligence?

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Well, how do you find out if the lawyer you are about to hire is the real deal? The internet can be very helpful in this regard. Are you relying on those “Rate My Lawyer” websites where all sorts of accolades are posted from people who may or may not be qualified to give an opinion on the quality of the legal work (or worse are doing favours for a friend or family member in the law business). You will see things such as “Smith is the best lawyer I ever had!” Well perhaps they have only had one lawyer in their life, or Smith was the cheapest one they could find. How can you ever verify what is said on these types of websites? You cannot.

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Flashy websites do not a good lawyer make. Any lawyer can don his or her court robes and stand for a photo at a Courthouse; or be photographed pouring over legal briefs at “3 a.m.” Be wary of advertising claims on websites such as “over 70 years of combined experience”. What does that mean? You could be hiring of firm comprised of 70 first year lawyers or 25 lawyers of 2 years experience. You get the idea.

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If you really want to find out if the lawyer you are about to trust with your case and your future is a trial lawyer the first question should be “how many trials have you done”? The second question should be “how many trials have you done as lead counselor on your own” Ask what type of trials the lawyer has done –are you entrusting a six-figure personal injury case to a lawyer who has never done a Supreme Court trial and only appeared in Small Claims court? Has the lawyer ever done a jury trial? Does the lawyer have experience in the type of law that you are dealing with? These are important questions to ask of the professional in whom you are about to entrust your case.  

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Perhaps you should be more interested in what Judges have said about the lawyers who appear in front of them, or what the Law Society has to say about his or her discipline record. You can find out a great deal about how experienced a lawyer is by checking the reported Court decisions online. You can go to the British Columbia Provincial, Supreme or Court of Appeal websites and plug in the lawyer’s name and do a search. Any reported judgment will show up in your search if that lawyer was counsel on the case. Another great free resource is a website called CanLii.org. This website covers cases across Canada. Type in your selected lawyer’s name and see for yourself what his or her track record is and the level of experience. You may even find that he or she is a past (or present) party to a court action!

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You can also check the B.C. Law Society’s website LawSociety.bc.ca to see if your chosen lawyer has ever been suspended or otherwise disciplined by the Law Society, and for what. You can find out what year your lawyer was called to the bar. You can go to Martindale.com to see where your lawyer went to university and what other lawyers knowledgeable in their field have to say about your lawyer’s experience and standing. Every lawyer has a law degree from somewhere; wouldn’t you like to know from where? And half of those lawyers graduated in the bottom half of their class.

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Ask around, get informed, and make sure the lawyer you choose has the necessary qualifications, knowledge and experience to get the job done. An attractive headshot, internet anecdotal ratings, and a flashy webpage should not be the criteria upon you choose your legal representation.  

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Dig deep and ask the tough questions before deciding on your legal representation. After all, isn’t that what you would want your lawyer to do?  

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This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.

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Bad-faith evictions, lengthy rental disputes and rent increases due to a child being added to the household will be addressed through amendments to the Residential Tenancy Acts (RTA) and the Manufactured Home Park Tenancy Act (MHPTA), the province has announced. The proposed changes are intended to “close loopholes” used by landlords and tenants alike, said Premier David Eby.

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The changes to the RTA and MHPTA address bad faith evictions and unfair rent hikes. Bad faith evictions occur when a landlord does not use the unit for the purpose given in the eviction notice for at least 6 months. For example, if a landlord evicts a tenant for personal use of the rental unit but rents it out for a higher rate instead.

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Notable changes to the RTA and MHPTA:

• A landlord must occupy rental unit for 16 months after ending a tenancy – previously 6 months
• Increases amount of notice landlord must provide to tenants for personal occupancy
• Landlords will be required to create eviction notices via web portal when they intend to use the unit for personal purposes, which will allow for post-eviction audits
  • The notice period to evict tenants for personal or caretaker use will also increase from 2 months to 3 months. If landlords provide an eviction notice but fail to use the unit for such purpose, they must pay the evicted tenant 12 months’ rent as compensation.
• Prohibits evictions for personal use in rental buildings with five or more units, and evictions with the intention of converting rental units for non-residential uses
• Tenants will have 30 days to dispute an eviction notice – up from 15 days
• Restrict rent increases when a tenant adds a child under 19 to the household – (ie. Can no longer increase rent if a tenant has a baby)

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Additionally, the province has added more staff to the Residential Tenancy Branch (RTB) to help reduce wait time, which have already been reduced by more than 50% according to Premier Eby.

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The changes are intended to protect long term renters, and seniors in particular according to Housing Minister Ravi Kahlon.

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SOURCE

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B.C.’s minimum wage is now permanently tied to inflation thanks to a new law tabled by Labour Minister Harry Bains. The provincial minimum wage most recently rose 65 cents to $17.40 on June 1,2024.  This raise represents a 3.9% increase, consistent with the average inflation in BC in 2023. This figure was determined through consultation with the Fair Wages Commission, an independent body that advises the labour ministry through consultation with businesses, unions and workers. Deflation would not result in a decrease in the minimum wage, in this case the minimum wage would remain the same.

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Labour Minister Harry Bains asserted that this decision would enshrine into law the government’s commitment to preventing our provinces lowest paid workers from falling behind, providing certainty for both workers and employers. Indeed, this decision will positively impact the approximately 130,000 B.C. workers earning minimum wage. The new law will also see the B.C. minimum wage rising from one of the lowest in the country to the highest.

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While the minimum wage increase went into effect of June 1, BC agricultural crop workers will see their wage increase on December 31st. This is to prevent wage adjustments in the middle of harvest season.

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SOURCE

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Stella, the golden retriever from New Westminster, is at the center of a first-of-its-kind ruling surrounding custody of a pet. This ruling stems from a relatively new BC law, a first in the country, that recognizes pets as family members, rather than simply property.

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Following a breakup, a New Westminster woman sought custody of the dog she had adopted with her ex-boyfriend. The ex-boyfriend initially claimed sole custody of Stella the golden retriever due to his name being the only one on the dog’s birth certificate. However, after nearly $60,000 in legal fees, a BC Judge ruled that the couple shall share custody of Stella, on a week on/week off basis.

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Associate Judge Scott Nielsen stated it was clear that both member of the former couple loved the dog and argued that the ruling must consider that animals are sentient beings. Associate Judge Nielsen’s ruling comes three months after amendments to the Family Law Act stated that pets and companion animals are more than just the property of whoever purchased the animal, they are members of the family.

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This decision highlights how the court must now consider eight factors when determining custody of a pet or companion animal under the new legislation. These factors are:

1. The circumstances in which the companion animal was acquired
2. The extent to which each spouse cared for the companion animal
3. Any history of family violence
4. The risk of family violence
5. A spouse’s cruelty, or threat of cruelty, toward an animal
6. The relationship that a child has with the companion animal
7. The willingness and ability of each spouse to care for the basic needs of the companion animal
8. Any other circumstances the court considers relevant

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When asked about the legal process and the financial investment required, the claimant stated that “It was all worth it” and that she would “Honestly […] do it all over again”.

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SOURCE

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Recently finalized protections for gig workers, going into effect on September 3, 2024, are a first in the country!

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The new regulations will provide fairness, minimum-wage requirements and basic protections for the approximately 11,000 app-based ride-hailing drivers and 35,000 delivery workers in BC. With nearly 50% of people in BC having used food delivery or ride sharing apps in 2023, these regulations will protect essential employees whose work many BC residents benefit from.

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The yet-to-be introduced regulations will address the top concerns for app-based gig workers, including:

1. Setting a minimum wage for ‘engaged time’, addressing the issue of unpredictable pay,
2. Setting a minimum per-kilometer vehicle allowance to compensate for vehicle expenses, addressing the issue of low pay,
3. WorkSafeBC coverage for app-based ride-hailing and delivery workers, addressing the current lack of workers compensation,
4. Allowing workers to know the locations and estimated pay associated with a job BEFORE accepting it, addressing the current lack of transparency,
5. Informing workers of reason for suspension and termination OR being provided notice or compensation if terminated without cause, addressing “unfair” deactivations and suspensions,
6. Requiring companies to pay 100% of tips provided by customers to workers, protecting workers access to tips they earned.

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These new protections are a starting point to addressing the issues faced by workers in this relatively new working arrangement. As the new regulations are rolled out the ministry will continue to monitor the need for adjustments. It is important to note that these regulations only apply to app-based delivery and ride share drivers and do not extend to other gig workers.

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SOURCE

Mr. Teljeur was employed as a General Manager for Pinestone Resort (“Pinestone”) in Haliburton, Ontario for a period of just over three years. On December 6, 2021, Pinestone terminated Mr. Teljeur’s employment on a without cause basis, advising that they elected to retain an outside management company to manage the resort moving forward. At the time of his termination, Mr. Teljeur, unbeknownst to Pinestone, recorded the termination meeting.

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At trial in Teljeur v. Aurora Hotel Group, 2023 ONSC 1324, Mr. Teljeur was awarded 10 months’ notice, plus benefits, and reimbursement of expenses he had incurred on behalf of Pinestone. In addition to this, the Court awarded Mr. Teljeur $15,000 as moral damages, based on the secret recording of the termination meeting that Mr. Teljeur had produced. The recording unveiled conduct of Pinestone that was “untruthful, misleading or unduly insensitive”, causing a breach by Pinestone of their duty of faith and fair dealing in the manner of dismissal. This conduct included: failing to honour promises made to Mr. Teljeur in the termination meeting, encouraging Mr. Teljeur to resign in the termination meeting, and failing to reimburse Mr. Teljeur in a timely manner for the expenses he had incurred on Pinestone’s behalf. Regarding mitigation, Pinestone attempted to make a crafty argument that Mr. Teljeur had failed to mitigate his damages, claiming that he had “prejudiced” his job search efforts by posting negative comments about the company on his social media. The Court declined to comment on this argument and did not take this argument into consideration of its award for damages.

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The Superior Court’s decision was ultimately affirmed on the (unsuccessful) appeal brought by Pinestone.

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This year there have unfortunately been several mass layoffs in BC. Most recently, Vancity has announced that it is terminating approximately 200 of its employees across the organization.

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To Vancity’s credit, their press release noted that these employees would be provided a “comprehensive, fair and equitable package of compensation, health and wellbeing and career supports.” Importantly, the press release also announced that they would be continuing the employees’ extended health, dental and insurance plans for three months following their termination, a supportive measure many employers don’t take during layoffs.

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It is, however, also important to consider that a “fair” severance package for one employee might not necessarily be a fair offer for another. In the absence of a binding employment contract limiting the employee’s entitlements upon termination (or just cause), an employee will generally be entitled to “reasonable notice” of their termination or “pay in lieu of notice”, what people often refer to as “severance”.

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The amount of reasonable notice that someone is entitled to upon their termination will depend on various factors including the employee’s age, position and length of service. Whether or not a severance package will make sense for an employee to accept depends not only on this analysis but also their realistic job prospects; this is because, generally, an employee’s entitlement to reasonable notice will be offset by “mitigation income” meaning money that they earn from a replacement job.

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Because of all this, it is often worthwhile (especially for those who have been employed somewhere for a long period of time) to have a BC-based employment lawyer review their package with them and obtain legal advice regarding their legal options. It’s important to remember that everyone’s situation will be slightly different, so just because a former colleague has taken a certain approach doesn’t mean that that approach will be the ideal one for others.

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If you *do* seek legal advice/representation, some things to keep in mind are that:

1. If you feel uncertain at the end of a consultation, you don’t *have* to retain that lawyer to represent you. You should hire a lawyer that you feel comfortable with and trust.
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2. Different lawyers and law firms will charge different rates (and some firms may offer contingency or other forms of retainer that can be more affordable).
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3. There is also ample legal information online, but legal information isn’t the same as tailored legal *advice*.

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The Ontario case Krmpotic v. Thunder Bay Electronics Limited, 2024 ONCA 332 involved the appeal of a wrongful dismissal award, with the employer appealing the Superior Court’s award of aggravated damages, decision on mitigation, and decision on the joint and several liability of common employers.

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Mr. Krmpotic worked full-time for Thunder Bay Electronic Limited (“TBEL”) and Hill Street Financial Services (“HS”) for almost 30 years. On June 13, 2016, Mr. Krmpotic’s employment was terminated by TBEL and HS without notice or cause. At the time of his termination, Mr. Krmpotic had just returned to his employment from a medical leave of absence (recovering from back surgery). Hours after returning, his employment was terminated by TBEL and HS. At trial, Mr. Krmpotics was awarded 24 months as common law notice, plus $50,000 in aggravated/moral damages for the manner in which he was terminated, finding TBEL and HS jointly and severally liable for the damages. TBEL and HS were unsuccessful, on all accounts, with their appeal, with the Ontario Court of Appeal affirming the original decision and awarding costs to Mr. Krmpotic for the appeal. In upholding the award for aggravated/moral damages, the Court of Appeal placed considerable focus on TBEL and HS’s misleading and untruthful statements to Mr. Krmpotic surrounding the cause for his dismissal – which included advising Mr. Krmpotic that his dismissal was due to “financial reasons” and was not related to his recent medical leave and subsequent limitations in the workplace. The trial Judge ultimately found this to be untrue, finding that Mr. Krmpotic’s condition and subsequent limitations were a factor in the decision to terminate his employment. A lesson to employers when choosing to provide an employee a reason for dismissal in the context of “without cause” terminations.