News & Blog

Parental Liability

By Stuart Cappus

Kids do the darndest things. Unfortunately, sometimes those things include injuring people or damaging property. For victims of such juvenile indiscretions, suing a child – who no doubt has no income or assets – for compensation is probably pointless. But what about that child’s parents? Can they be held liable for injuries or damage caused by the negligent or intentional acts of their children?

The answer to that question is yes.

At common law, parents are not liable for the negligence of their children strictly by virtue of their status as parents. However, the parents of a child can be held liable if they, themselves, were negligent in failing to properly supervise and control their child. This means that, to be liable, the claimant must prove that the parents of the child were negligent in their own way.

In BC, the Parental Liability Act imposes liability on the parents of a child who intentionally causes damage to property unless the parents can prove that they were properly supervising the child and tried to stop him from doing whatever it was that damaged the property. In this sense, the Act alters the common law by shifting the burden of proof from the claimant to the parents: instead of the claimant having to prove that the parents were negligent, the parents have to prove that they weren’t in order to escape liability. The Act does, however, places restrictions on the extent to which parents can be held liable. Notably, property damage caused by a child’s negligence is not covered by the Act nor are personal injuries. Actions for damages under the Act must also be started in Small Claims Court and damages are capped at $10,000. On the other hand, the definition of “parent” under the Act is quite broad and includes not only a biological or adoptive parent, but a step-parent; any one who contributes to the support, maintenance and care of the child; and, believe it or not, any one who simply has contact with the child.

Section 10 of the School Act also imposes liability on the parents of a child for damage to school property caused by a child’s negligent or intentional acts. Unlike the Parental Liability Act, parents cannot escape liability by proving that they were properly supervising the child and tried to stop him from damaging the property. If a child negligently or intentionally damages school property, his parents are liable strictly by virtue of their status as parents. The Act also does not impose restrictions on the court in which an action for damages must be started and the amount of damages available to the claimant.

The purpose of section 10 is to shift the cost of repairing school property damaged by a child from taxpayers to that child’s parents. This can have severe financial consequences for the innocent parents of misbehaving children. As an example, in Nanaimo-Ladysmith School District No. 68 v. Dean, 2015 BCSC 11, the parents of a Nanaimo student were ordered to pay the School District over $48,000 for water damage caused to Wellington Secondary School when their child, in the course of playing a prank on a friend, triggered the school’s sprinkler system.

The Apology Act

By Stuart Cappus

Sorry! As Canadians, many of us are probably unable to go an entire day without saying the word. But are there any legal consequences to saying you’re sorry?

In British Columbia, thanks to the Apology Act, the answer to that question is no. This Act, which has been in force since 2006, makes clear that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission of fault or liability by the person in connection with that matter and must not be taken into account in any determination of fault or liability in connection with that matter. The Act even defines apology to mean “an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate”.

The Apology Act allows people to interact naturally and humanely when a wrong has occurred without fear that their words could later be used against them. For people injured in car accidents, the Apology Act means that you still have to prove that the other person involved in the accident was at fault even if they said they’re sorry. Similarly, the fact that you may have said you’re sorry cannot be held against you if you later bring a claim against the other person who is actually the one at fault for the accident.

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!