News & Blog

New Reasons for Judgment in a commercial tenancy dispute

Greg Phillips has received reasons for judgment from the BC Court of Appeal in a commercial tenancy dispute. Greg was successful at trial for his clients, the tenants, back in 2016. The landlord, however, appealed the decision. Greg was successful in having the appeal of the landlord dismissed.

This has been a long battle, with the initial court documents filed in Small Claims court in 2009. Since then, the dispute has been to the Supreme Court of BC twice and the Court of Appeal twice. While we make every effort to resolve matters amicably through settlement, occasionally disputes can only be resolved through the courts. When choosing a lawyer, we feel it is important to find a lawyer who will strongly advocate for you and your rights — including going to trial when necessary.

If you are involved in a dispute or disagreement and would like to set up an appointment with one of our lawyers to discuss your rights, obligations and options, contact us today.

Congratulations to Greg Phillips!

Congratulations to Greg Phillips, who was recognized as one of Vancouver Island’s “Top 20 Under 40” at an annual awards gala on April 8, 2017.

Greg is an active member of the Nanaimo community and we are very proud to see his professional and community involvement recognized. He joins another lawyer at our firm, Trina Brubaker, who won the award last year.

Conveyancer Position

Full time Conveyancer required.  Experience preferred, but not necessary.  Reply in confidence to Johnston Franklin Bishop.  Only those selected for an interview will be contacted.

Protecting Your Privacy

Insurance companies can be unscrupulous when it comes to delving into the private lives of people advancing injury claims. Their reason for doing this is simple: try to find something – anything – that they can use against you to deny or minimize your claim.

As but one example of this, the federal Privacy Commissioner recently admonished one insurance company for accessing an injured person’s credit score. As there is no legitimate reason for doing so, the only plausible explanation is that insurance companies are trying to identify people with bad credit or other financial difficulties who may be more willing to accept a low-ball offer to settle their claim.

Subject to a few exceptions, insurance companies like ICBC can only access your personal information if you give them permission. People who try to pursue injury claims on their own are required to sign authorizations allowing ICBC to access and collect that person’s medical records and other personal information. In many instances, these records will contain information totally irrelevant to your claim that ICBC has no business knowing.

Unlike ICBC, one of our primary roles as your lawyers is to protect your privacy. When you hire us, any authorizations you signed for ICBC are revoked. Instead, records relevant to your claim are provided to ICBC through us. That way we can ensure that sensitive or irrelevant information remains private.

If you’ve been injured in an accident and have questions about protecting your privacy, contact us today for a free consultation – before speaking with ICBC!

Dying Without a Will

When a person dies without a will, the Wills, Estates and Succession Act determines who will get their assets. Essentially, the Act provides that the deceased’s closest next of kin will inherit his or her estate.

If the deceased is survived by a spouse but not any children, the spouse will receive all of the deceased’s estate. Conversely, if the deceased is survived by children but not a spouse, each child will receive an equal share of the deceased’s estate.

If the deceased is survived by a spouse and children, who gets what will depend on the value of the deceased’s estate and whether the children are the natural/adopted children of both the deceased and the surviving spouse or only one of them. If the children are the natural/adopted children of both the deceased and the spouse, the spouse gets the first $300,000. This means that if the deceased’s estate is worth less than $300,000, the spouse gets it all. If the deceased’s estate is worth more than $300,000, anything over that is divided 50% to the spouse and 50% to the children in equal shares. Conversely, if the children are the natural/adopted children of only one of the deceased or the spouse meaning one of them was a step-parent, the spouse gets only the first $150,000 and anything over that is divided 50% to the spouse and 50% to the children in equal shares.

There are special rules with respect to the home in which the deceased and the spouse lived.

It is interesting to note that a deceased can have more than one spouse. For instance, the deceased could have been married to but separated from one person while at the same time be in a common-law relationship with someone else. Where there are two or more spouses, they can agree how the spousal share of the deceased’s estate will be split among them or, if they can’t agree, the court will decide.

If the deceased is survived by neither a spouse nor children, his estate will go to his parents followed by his siblings followed by his grandparents and cousins. Any relative 5 degrees or more removed from the deceased cannot inherit.

What to do if you have been in an Accident

1. Determine if any one is hurt. If you, one of your passengers or someone in another vehicle is or could very well be seriously injured, call 911 immediately.

2. Get to a place of safety. Depending on where the accident happened or where your vehicle ended up, you may be prone to being struck again. If your vehicle is in a dangerous place and is driveable, move it to a safe place.

3. Collect Information. It is very important to get the name, address and driver’s license number of the other driver involved. Make a note of the license plate number of their car. If the license plate is not from British Columbia, look at the driver’s insurance papers to determine their insurance company and policy number. Write down the name and phone numbers of any witnesses. If you have your smart phone with you, take pictures of the scene and vehicles involved.

4. Call the police if necessary. You will want to call the police if the other driver flees before you can identify him or if the other driver is acting strangely or suspiciously. You should also ask the police to come to the scene if it looks like there could be an issue with who was at fault for the accident.

5. Get medical attention. If you are injured, you should seek immediate medical attention after leaving the scene. If you cannot see your family doctor, go to an emergency room or walk-in clinic.

6. Call a lawyer. While you can report the accident to ICBC yourself, it is important to know that anything you say to them could later be used against you to deny or minimize a future claim. Because of that, we recommend talking with one of our ICBC injury lawyers first. We offer free consultations and can explain your options and how we can help.

Partition of Property

By Stuart Cappus

For a variety of reasons, two or more people can find themselves owning a single piece of property together. They could have bought the property together. Some or all could have inherited their interest in the property from a former owner. Regardless of how they came to own a property together, there is always the potential for conflict to arise between or among co-owners with respect to the property. For instance, one may want to sell when the other does not. One may refuse to contribute his fair share to the property taxes or utilities. The co-owners may be unable to agree on the terms of a buy-out of one co-owner by another.

When this occurs, the Partition of Property Act allows one or more co-owners to apply to court for an order that the property be sold or, in some instances, split. If the person or persons applying hold, either individually or together, a minimum 50% interest in the property, the court must order the sale or partition of the property unless the remaining co-owner(s) can convince the court that they will suffer significant hardship if the order is made. Conversely, if the person or persons applying hold less than a 50% interest in the property, the court has discretion to determine whether it is appropriate in all the circumstances to make the order.

Uninsured Motorists

If you are involved in an accident and the at-fault driver or vehicle doesn’t have insurance, you can still claim up to $200,000 in damages from ICBC for your injuries and other losses. In order to qualify, the accident must have happened in BC on a “highway”, which essentially means any public road and includes parking lots open to the public. The accident also cannot be a “hit and run” meaning you don’t know the identity of the driver or owner of the vehicle that hit you. Once those two conditions are met, you must give ICBC notice in writing of the accident. This should be done as soon as possible. If your injuries entitle you to receive EI, WorkSafe or certain other government benefits, ICBC can deduct the value of those benefits from the damages otherwise payable to you.

If you’ve been injured by an uninsured motorist, contact us today for a free consultation – before speaking with ICBC!

Residential Tenancies: Abandoned Property

By Stuart Cappus

Tenants often leave things behind when they move out of a rental unit. In certain circumstances, the landlord is entitled to assume that the tenant has abandoned those belongings and proceed to remove and dispose of them.

Specifically, if a tenant leaves things behind after moving out at the end of their tenancy agreement, the landlord is entitled to consider the tenant to have abandoned whatever they’ve left behind. Similarly, where a tenant hasn’t lived in the unit and paid rent for 1 month straight, and has removed most of their things, the landlord may be entitled to consider the tenant to have abandoned whatever they’ve left behind. The landlord can do so if the tenant has either told the landlord that they aren’t coming back or the circumstances surrounding the tenant’s leaving are such that there’s no reason to think the tenant is ever coming back.

A landlord must keep a written inventory of each item of abandoned property and store them in a safe place for 60 days. However, if an item is less than $500, unsanitary or unsafe, or simply not worth the cost of removal and storage, the landlord can sell or otherwise get rid of the item in a commercially reasonable way.

At the end of the 60 days, the landlord can sell or otherwise get rid of the abandoned property. However, at least 30 days before doing so, the landlord must put an ad in the newspaper. The ad must include the tenant’s name, a description of the items intended to be sold, the address of the rental unit, the landlord’s name, and a statement that the landlord intends to sell the items in 30 days unless someone with an ownership interest comes forward and claims them. If no one comes forward, the landlord can proceed with selling the items. The landlord must keep a record of the sale for 2 years afterwards.

From the proceeds of sale, the landlord can recoup the cost of removing, storing and selling the items, as well as satisfy any debts owing to the landlord by the tenant under their tenancy agreement. If there’s any money left over, the landlord must pay the balance to a provincial government agency.

In rare instances, the tenant may return and demand their property back from the landlord. Before giving it back, the landlord can require the tenant to reimburse the landlord for the cost of removing and storing the property. The landlord can also require the tenant to pay any money owing to the landlord under their tenancy agreement.

Residential Tenancies: Evictions

By Stuart Cappus

A landlord can evict a tenant for any number of reasons. In all cases, the landlord must give the tenant a certain amount of notice. How much notice depends on the reason the tenant is being evicted. The most common notices of eviction are:

10-day notice: Unpaid Rent
If the tenant fails to pay rent on time, the landlord can issue a 10-day notice of eviction. Once the tenant receives the notice of eviction, the tenant has 5 days to either pay the rent or file an application for Dispute Resolution with the Residential Tenancy Office (RTO). If the tenant does neither, the tenant is presumed to have accepted that the tenancy will end when the 10-day period expires and must move out of the unit at that time.

30-day notice: Cause
A landlord can issue a 30-day notice of eviction if a tenant does something serious the tenant isn’t supposed to do. These can include:

• Repeatedly being late paying rent;
• Having an unreasonable number of occupants in the unit;
• Significantly interfering with or unreasonably disturbing another tenant or the landlord;
• Engaging in illegal activity that has caused or is likely to cause damage to the landlord’s property; or
• Causing extraordinary damage to the unit.

As with a 10-day notice, the tenant has an opportunity to dispute a 30-day notice of eviction, but this time has 10 days to file an application for Dispute Resolution with the RTO. If the tenant doesn’t, the tenant is presumed to have accepted that the tenancy will end when the 30-day period expires and must move out of the unit at that time.

2 month notice: Landlord’s Use of Property
A landlord can evict a tenant if the landlord or a close family member of the landlord has a good faith intention to move into the unit. “Close family member” means the landlord’s parent, spouse or children, or the parent or children of the landlord’s spouse.

A landlord can also evict a tenant if the landlord has entered into an unconditional agreement to sell the property and the buyer asks the landlord to evict the tenant on the basis that the buyer or a close family member of the buyer has a good faith intention to move into the unit.

Finally, a landlord can evict a tenant if the landlord has a good faith intention to demolish the unit, or renovate or repair the unit in a manner that requires the unit to be vacant.

In all cases, the landlord must give the tenant at least 2 months’ notice of eviction starting on the day before the date in the month that rent is due. However, if the tenancy is for a fixed term, the landlord cannot issue this kind of eviction notice before the end of the tenancy.

In addition to notice, a landlord must also pay the tenant one month’s rent.

If, after the tenant moves out, it becomes apparent that the landlord or buyer isn’t using the unit for the reason given to the tenant, the landlord or buyer could be liable to pay the tenant double the monthly rent the tenant used to pay.