Two major court decisions have recently reshaped the legal landscape around Aboriginal title and private land ownership in Canada, raising fundamental questions for governments, developers, and property owners.

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Aboriginal rights and title, protected under Canada’s Constitution, were never fully defined, leaving courts to determine their scope over time. Historically, Aboriginal title claims focused on government-owned Crown land, but recent cases have expanded the discussion to privately-owned property.

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In Cowichan Tribes v. Canada (Attorney General), the British Columbia Supreme Court made history by recognizing Aboriginal title over property that was owned by private landowners. The Court found that Aboriginal title and private ownership can coexist, and that Crown grants of land do not necessarily extinguish underlying Indigenous rights. While private landowners were not directly impacted in this case, the decision raises the possibility that fee simple interests could be challenged in future proceedings. The Court encouraged negotiated solutions between the Province and Indigenous groups to reconcile overlapping interests.

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However, in J.D. Irving, Limited v. Wolastoqey Nation, the New Brunswick Court of Appeal rejected this approach, holding that Aboriginal title and fee simple ownership cannot coexist. Instead, courts may recognize a “finding” of Aboriginal title over private lands to support claims for compensation against the Crown, but not to disturb private ownership.

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These conflicting rulings create significant uncertainty nationwide, particularly as both cases move through the appeals process and will likely be decided by the Supreme Court of Canada. For now, most real estate transactions remain unaffected, but enhanced due diligence is increasingly important when buying or refinancing your property, especially for properties within or near asserted Indigenous territories or where developments may impact Aboriginal rights.

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Everyone has the right to feel safe at work. In BC that right is enshrined in law, meaning employers have a legal duty to provide a workplace free from harassment and bullying.

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Despite the law and employers’ best efforts, workplace harassment and bullying can still arise and can include:

• Verbal abuse or intimidation;
• Discriminatory comments;
• Persistent unwanted behavior;
• Psychological harassment; and
• Unwanted sexual advances or touching.

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WorkSafeBC policies and the BC and Canadian Human Rights Codes offer protections for workers. For example, under WorkSafeBC policies, employers must have procedures in place to address complaints and investigate concerns. Failing to do so can expose the employer to legal risk.

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If you are experiencing harassment or bullying, consider the following steps:

1. Report the issue internally (only if you believe it is safe to do so);
2. Keep detailed records, including dates, witnesses and copies of communications; and
3. Seek legal advice about your options which may include, but are not limited to the following:

• Summary legal advice;
• Support in communicating about the matter with your employer;
• Engaging in workplace dispute resolution processes;
• Request for a workplace investigation;
• Filing a complaint with WorkSafeBC;
• Filing a lawsuit for wrongful or constructive dismissal; and
• Making a complaint to the BC or Canadian Human Rights Tribunals.

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You do not have to tolerate a toxic work environment. Connecting with a lawyer can help you understand your options and take steps to protect your wellbeing and career.

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If you are experiencing workplace harassment or bullying, contact KSW to help you move forward with clarity and support.

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Losing your job can be overwhelming, especially if it catches you by surprise. Though minimum termination requirements are set by the BC Employment Standards Act, employees are often entitled to more under the common law, collective agreements or other legislation.

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One of the most common issues that arises termination is whether the employee was provided adequate notice or pay in lieu of notice. If inadequate notice or pay in lieu of notice is provided, it may be considered wrongful dismissal. In determining what period or notice or pay in lieu of notice is appropriate, a court will consider factors like your age, position, length of service and ability to find similar work.

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When an employee is dismissed, an employer will typically offer a severance package and ask them to sign documents. Many employees mistakenly believe the must accept the package and sign paperwork—that is not the case! You are not obligated to do so and have the option to consult with and have the package reviewed by a lawyer. Understanding your rights can bring peace of mind and may make a significant financial difference.

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If you have been dismissed, it is important to take these three simple steps:

1. Avoid signing anything right away
2. .Request any details in writing; and
3. Get legal advice before responding or accepting an offer.

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If you have missed any of these steps, it may not be too late. Sometimes it only takes a short conversation with a lawyer to clarify whether the offer you received is fair.

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If you have been terminated, contact KSW Lawyers. We can help you move forward with clarity and support.  

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British Columbia’s Pay Transparency Act (S.B.C. 2023, c. 17) (the “Act”) aims to reduce workplace barriers and promote pay equity. A key requirement is the preparation and public release of annual pay transparency reports by certain employers.

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The Act defines reporting employers in two ways: certain public-sector organizations were automatically included when the legislation came into force, while private-sector employers are phased in based on workforce size. The threshold has dropped significantly—from 1,000+ employees in 2024, to 300+ in 2025, and now to 50+ employees in 2026. This expansion means many more BC employers must now comply.

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Reports must be published annually by November 1 and made publicly accessible (typically via a company website). The report generally must disclose gender-based pay differences, including comparisons of mean and median hourly pay, overtime, and bonus compensation across gender categories. The Pay Transparency Regulation, BC Reg 225/2023 includes a detailed overview of everything to be included in the report and the calculation guidance, and the province offers a reporting tool to assist employers through their Business BCeID accounts.

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While there are no direct financial penalties for non-compliance, the government may publicly identify employers who fail to report.

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If your organization may be affected, now is the time to prepare. Contact Jaime Sarophim at KSW Lawyers for guidance on compliance and reporting obligations.

Every man is entitled if he can to order his affairs so as that the tax attaching under the appropriate acts is less than it otherwise would be.

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A taxpayer’s characterization of the source of income is one of the ways in which a taxpayer may order his affairs.  However, it should first be noted that not all monies taken in by a taxpayer in a year are considered income, or therefore subject to taxation.

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To be considered income (from a source), the amount should be able to be linked with one or more of the following characteristics:

• recurrence on a periodic basis;
• involving organized effort, activity, or pursuit on the part of the taxpayer;
• giving rise to an enforceable claim to the payment by the taxpayer;
• payment was sought after and/or reasonably expected by the taxpayer;
• the payer is a customary source of income for the taxpayer;
• involving a marketplace exchange; or
• the pursuit of profit.

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Once the amounts taken in by the taxpayer have been affirmatively characterized as income from a source, depending on the characterization of the source from which the amounts flowed, the income may lead to the availability of different deductions, remittance time requirements, and possibly even different taxation rates.

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Broadly speaking, sources of income can be characterized in two ways: either as being from office or employment, or as being from business or property. The first step requires knowing whether the relationship between the taxpayer and the source is one of a contract of service, which creates an employer-employee relationship, and results in the source of the income being characterized as derived from office or employment, or whether the relationship is one of a contract for services, which creates the relationship of a principal and agent, and results in the source of income being characterized as derived from business or property.

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While both characterizations ultimately result in the income being taxable, the characterization, and the corresponding deductions available, may result in different taxpayers reporting different values of their income from a source for the year, even though the gross amounts taken in may have started off as being the same to each of them.

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This article provides an introductory overview of what a “marriage-like relationship” is and how it is relevant in family law matters.

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The terms marriage-like relationship is often referred to as a “common-law relationship.” It generally describes a relationship in which two people live together in a committed, marriage-like partnership without being legally married.

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Under British Columbia’s Family Law Act, unmarried partners may be considered “spouses” if they have lived together in a marriage-like relationship for a continuous period of at least two years. Once this requirement is met, those individuals are entitled to the same rights and obligations as married spouses with respect to property division.

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Importantly, if the parties have a child together, the two-year cohabitation requirement does not apply to child and spousal support.

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Determining whether a relationship qualifies as “marriage-like” can be complex and depends on various factors, including but not limited to the nature of the parties’ living arrangements, financial interdependence, how the parties present their relationship in public, how the parties view their own relationship subjectively, how others view their relationship objectively, and the overall level of commitment in the relationship. Courts will assess the relationship as a whole, rather than relying on any single factor.

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If you are unsure whether your relationship may be considered “marriage-like,” or if you have been living with a partner close to or beyond the two-year mark, it is advisable to seek legal advice. Our Family Law Department would be pleased to arrange a consultation to discuss your specific circumstances and help you determine the appropriate steps to protect your interests.

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Check out the series of webinars KSW Lawyers' Employment and Labour Lawyer Darren Sall hosted in conjunction with BrightHR!

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Summer Absences Simplified: HR Tips for Business Owners

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Contractors vs Employees: Smart Hiring Decisions for Growing Businesses

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Essential Documentation to Protect Your Business During Terminations

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Terminations Without Risk: What Canadian Business Owners Need to Know

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When workplace conversations cross the line: Preventing workplace harassment

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When workplace conversations cross the line: Preventing workplace harassment

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Disciplinary pitfalls every employer must avoid

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Good news for first-time buyers: the GST Rebate on new and substantially-renovated homes is now in force.

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Originally announced last spring, the legislation received Royal Assent and came into force last week. It eliminates GST on new and substantially-renovated homes priced up to $1 million and provides a reduced GST amount for homes between $1 million and $1.5 million. Eligible individuals could get a GST rebate of up to $50,000.00 on their new home purchase. The Canada Revenue Agency can now begin processing rebate claims.

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The rebate generally applies to contracts entered into on or after March 20, 2025 and before 2031. If you are a first-time buyer and purchased a new or substantially renovated home under $1.5 million since March 20, 2025, now is the time to ensure you apply. There is a time limit to apply for the rebate; usually it is within 2 years of taking ownership or finishing construction.

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As a builder, you can let any first-time home buyers know that they may be eligible for the GST rebate if they entered an agreement to purchase a home from you on or after March 20, 2025.  You can credit the buyer for the rebate at closing for eligible buyers and submit the jointly-completed rebate application form to CRA. As you could not credit the rebate to Buyers until the new bill received Royal Assent, eligible first-time home buyers who purchased a unit before the new law came into force can apply directly to the CRA to receive the GST rebate.

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Realtors and mortgage brokers should check in with any of their clients who may qualify as well.

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Acquiring a business is a complex undertaking that can unlock significant value, but only if approached with care, diligence, and professional guidance. Buyers often face a range of legal, financial, and operational risks that, if not properly managed, can lead to costly consequences. Below are six common pitfalls to avoid, drawn from best practices in mergers and acquisitions (M&A) and the due diligence process.

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Failing to Conduct Appropriate Due Diligence

Due diligence is the buyer’s primary tool for uncovering risks and validating the value of the target business. It involves a comprehensive review of legal, financial, tax, operational, and commercial matters. The purpose is to identify liabilities, assess asset quality, and understand the target’s contractual obligations, regulatory compliance, and market position.

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A well-structured due diligence process allows the buyer to:

• Make an informed decision about proceeding with the transaction.
• Properly value the business.
• Negotiate indemnities and warranties to allocate risk.
• Structure the transaction appropriately.
• Plan for post-closing integration.

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Due diligence should begin at the outset of the negotiations, as soon as confidentiality agreements are in place. It typically runs concurrently with the negotiation of the letter of intent and the purchase agreement. Buyers usually engage a team of advisors, including lawyers, accountants, and industry specialists, to ensure all relevant areas are covered. Skipping or rushing this process can result in the acquisition of hidden liabilities, such as tax arrears or undisclosed litigation, the acquisition of assets encumbered by liens or security rights of the seller’s lenders or other third parties, exposure to unknown regulatory liabilities, payment for assets that cannot be validly transferred due to transfer restrictions, or the assumption of unknown contractual obligations, all of which can undermine the value of the deal for the buyer.

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Submitting to Arbitrary Deadlines Imposed by the Seller

Sellers may impose tight deadlines to create urgency or competitive pressure. While some time constraints may be legitimate (such as deadlines necessitated by tax planning) buyers should resist deadlines that compromise the quality of their review.

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Time pressure can lead to superficial due diligence, missed red flags, and inadequate negotiation of key terms, all of which can lead to oversights that ultimately diminish the value the buyer expected to receive from the transaction. Buyers should insist on a realistic timeline that allows for proper investigation and preparation of appropriate closing documentation.

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A due diligence period of several weeks or months is commonplace in a business purchase and sale transaction, a seller unwilling to give a buyer adequate time to evaluate the target business is a seller that the buyer must be wary of trusting in other aspects of the transaction.

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Remember: the goal is not just to close the deal, but to close a good deal.

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Advancing Deposits Without a Binding Agreement in Place

It is not uncommon for sellers to request a deposit early in the process, especially in private transactions. However, advancing funds before a binding agreement is signed exposes the buyer to significant risk, and advancing funds directly to the seller prior to the completion of the is rarely good practice. If the deal falls apart, recovering funds that have been paid directly to a seller can be extreme difficult, even with a binding contractual in place.

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To mitigate the risk of loss:

• Only pay deposits into the trust account of one of the parties’ legal representatives and ensure it is held there until the transaction completes or is terminated.
• Use contractual arrangements setting out clear terms as to when the deposit is refundable to the buyer and when it is payable to the seller.
• Avoid informal arrangements or verbal assurances.

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Payment of a pre-closing deposit into a lawyers trust account is nearly always preferred and is a standard practice for business purchase and sales. Lawyers are subject to ethical obligations and conditions can be more easily imposed on their receipt of funds, which gives the parties certainty that a deposit will be appropriately dealt with. Similar to best practice #2 above, a seller that demands a pre-closing deposit be paid directly to them prior to closing, especially in the absence of a written contractual agreement, is a seller the buyer must be wary of in all aspects of the transaction.

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Failing to Have a Professionally Prepared Purchase Agreement

The purchase agreement is the definitive record of the parties’ rights and obligations. It governs the structure of the transaction, the representations and warranties, indemnification provisions, closing conditions, and post-closing obligations.

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Common issues that arise from poorly drafted agreements include:

• Ambiguities in the scope of assets or liabilities being transferred.
• Inadequate protection against breaches or undisclosed risks.
• Missing or unenforceable indemnity provisions or limits on liability.
• Failure to address the legal rights of third parties affected by the transaction.
• Lack of termination rights where the transaction in substantively altered by matters outside the parties’ control.

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Buyers should ensure the agreement is prepared or reviewed by experienced legal counsel. The agreement should reflect the findings of due diligence and include appropriate protections, such as:

• Survival periods for representations and warranties.
• Indemnity caps.
• Escrow or holdback arrangements.

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Templates and boilerplate agreements are rarely sufficient. Each transaction is unique and requires tailored drafting.

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For information on the risks of signing contracts that have not been professionally drafted and negotiated, see our article on Why Legal Advice is Essential in Business Contract Drafting and Negotiation here.

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Failing to Promptly Complete Post-Closing Obligations

Closing the deal is not the end of the transaction, it’s the beginning of a new phase. Many obligations arise post-closing, including:

• Delivering final documents and consents.
• Transferring licenses, permits, and registrations.
• Notifying customers, suppliers, and employees.
• Completing purchase price adjustments or earn-out calculations.
• Fulfilling indemnity obligations.

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Delays or failures in completing these tasks can result in breaches, penalties, or operational disruptions. Buyers should maintain a closing agenda and post-closing checklist to ensure all items are tracked and completed on time, and should insist on prompt completion of the seller’s post-closing obligations as well.

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Failing to Promptly Investigate Potential Breaches of the Purchase Agreement

After closing, buyers may discover issues that were not disclosed or were misrepresented. These could include:

• Undisclosed liabilities.
• Breaches of representations or warranties.
• Inaccurate financial statements.
• Non-compliance with laws or regulations.

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Most purchase agreements include survival periods and notice requirements for indemnity or breach of contract claims. Buyers must act quickly to preserve their rights. Delayed investigation or failure to provide timely notice can limit or entirely bar recovery of losses arising from breaches of contract.

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Best practices include:

• Monitoring the business closely during the survival period of the representations, warranties, and indemnities.
• Maintaining records of communications and findings.
• Consulting legal counsel immediately upon discovering potential breaches.
• Using holdbacks of a portion of the purchase price to secure recovery for claims.

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Buyers should also be aware of sandbagging provisions—clauses that determine whether a buyer can bring a claim for a known breach. These provisions vary in scope and application and should be carefully negotiated.

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Conclusion

Acquiring a business is a high-stakes endeavor that requires careful planning, professional advice, and disciplined execution. By avoiding these common pitfalls—especially those related to due diligence, documentation, and post-closing obligations—buyers can protect their investment and set the stage for long-term success.

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Whether you're acquiring a small private company or a complex enterprise, the principles remain the same: investigate thoroughly, negotiate wisely, and document everything. A well-advised buyer is a well-protected buyer.

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The above article is meant for informational purposes only; it is not legal advice and should not be relied on as such. Readers should seek legal advice specific to their circumstances prior to executing a business contract or agreement.

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