News & Blog

Driving in Poor Weather Conditions

It is common for drivers in BC to have to contend with foggy and rainy driving conditions. When those conditions are present, it is important for motorists to modify their driving to prevent accidents especially when the conditions are such as to affect their visibility.

In a case of Ferguson v. Shan, 2019 BCSC 740,  the court had to consider which driver was at fault for an accident that happened where fog limited both drivers’ visibility.

The plaintiff in this case had been driving her vehicle south on Highway 97 north of Clinton when the defendant attempted to turn his truck left in front of her causing a collision. Because of the fog and poor road conditions, neither driver saw the other until it was too late.

At trial, the court heard how the plaintiff had been travelling along Highway 97 for some time. She continuous moderated her speed based upon how dense the fog was and how it affected her visibility. She gauged that her speed was equal to that of vehicles travelling in opposite direction.  As she approached the intersection where the accident happened, the fog got substantially denser and she slowed down in response.  

ICBC, on behalf of the defendant, argued at trial that the plaintiff was 100% responsible for the accident. In support of their position, the defendant testified that he had been stopped at the intersection for several seconds before starting his turn. At that time, he could see about 20 to 30 feet in front of him.

Unfortunately for ICBC, the court disagreed and found the defendant 100% at fault. The judge noted that the standard of care he expected from both drivers was higher due to the foggy weather conditions. Important to this finding was his determination that the plaintiff had reduced her speed and was driving in a prudent manner consistent with the weather conditions prior to the accident. The judge further noted that the existence of fog did not relieve the defendant of his obligation to ensure that his turn could be made safely. Specifically, the court found that the defendant could have waited longer before attempting his turn, rolled down his windows to attempt to hear the sounds of approaching vehicles, or waited to see if the fog cleared. In the court’s view, the defendant took no steps to modify his driving behaviour in the presence of the fog.

As this case shows, it is important for all drivers to modify their driving behaviour if the weather and road conditions are restricting their visibility of other motorists on the road.

Appealing a Decision of the CRT

The Civil Resolutions Tribunal (or CRT) is an administrative tribunal initially established by the BC government in 2012 to handle disputes between strata councils and property owners. In 2017 the tribunal’s jurisdiction was expanded to allow them to hear small claims disputes of $5,000 or less. More recently in April of 2019, the NDP government significantly expanded the mandate of the CRT to give it exclusive jurisdiction to decide:

  1. Whether a person injured in a car accident is entitled to ICBC no-fault or Part 7 benefits;
  2. Whether a person’s injuries are “minor” as defined by the government; and
  3. Claims of $50,000 or less.

Considering the newly expanded jurisdiction of the CRT and the fact that CRT tribunal members are appointed by the same cabinet minister in charge of ICBC, it is important to note the options available to individuals if they disagree with a decision of the CRT.

If an individual disagrees with a small claims decision (less than $5,000), they must file a Notice of Objection with the CRT and then file a Notice of Civil Resolution Tribunal Claim with the BC Provincial Court. After all filings are complete with the BC Provincial Court, the matter will then proceed as a new trial matter within the Provincial Court system.

If an individual disagrees with a strata decision or a motor vehicle injury decision, they must apply to the BC Supreme Court for judicial review. It is important to note this is not a rehearing of the case. Judicial review is a process for the Supreme Court to review decisions of administrative tribunals to ensure that they adhere to the rule of law. The governing legislation of the tribunal limits the scope of the review that the court may undertake.

A request for judicial review is brought by filing a petition and supporting affidavits with the Supreme Court. The other party and the CRT will then have an opportunity to respond. Following this exchange the matter is set down for a hearing. At the hearing the court is not holding a new trial and normally will not admit or consider evidence that was not part of the evidence originally submitted to the CRT.

The main concerns to be assessed on a judicial review are not the rightness of the decision, but whether the decision of the CRT was outside its jurisdiction, was flawed in that it was “unreasonable” or patently unreasonable, or was the product of an unfair procedure.

A decision is considered to the patently unreasonable if it was exercised arbitrarily or in bad faith, was for an improper purpose, was based upon irrelevant factors, or failed to take statutory requirements into account. An unreasonable decision is one that is not reasonable. A reasonable decision is one which is justifiable, transparent and intelligibly fits within the decision making process of the tribunal, and falls within the range of possible acceptable outcomes.

The Supreme Court does not normally reverse a decision of a tribunal and install its own decision. Rather, it is more likely to require that the matter be reheard by the CRT with some guiding commentary from the Supreme Court. The decision to grant relief under a judicial review is entirely discretionary and it is possible for the court to otherwise agree with an individual’s claim but not grant them a rehearing.

Bill 19: Covid-19 Related Measures Act

Under the authority of the Emergency Program Act, the BC government passed a number of Covid-19 Ministerial Orders relating that were to stay in affect during the duration of the provincial state of emergency. These orders were set to expire with the end of the state of emergency, which is set to expire on July 21, 2020 but with the passing of the Covid-19 Related Measures Act a number of the orders will remain in force for an additional 45-90 days depending on the order.

The Limitation Act, [SBC 2012] C13, sets out the limitation periods within BC for commencing a legal claim against another individual or entity. The basic limitation period within BC is 2 years from the date of discovery of the loss or claim. More specific limitation periods can apply depending on the claim. If a person does not commence a legal action with the limitation period there claim can be dismissed simply for being filed outside the limitation period. During the state of emergency ministerial order 86 and 98 were made which suspended all limitation periods for the duration of the state of emergency. With the passing of Covid-19 Related Measures Act individuals have another 45 days after the expiration of the state of emergency to file their legal actions and not have the Limitation Act apply.

In response to the Covid-19 economic crisis, Ministerial Order 195 was made to respond to concerns about the vulnerability of tenants. During the time period that the ministerial order was in effect a landlord could not give a notice to end a tenancy for non-payment of rent unless very specific circumstances were enacted. With the passing of Covid-19 Related Measures Act the rules sets out in ministerial order will continue to apply for 45 days after the expiration of the state of emergency. It is anticipated that additional orders or legislation will be forthcoming to address how these forms of eviction after that time period expires.

The residential tenancy branch is indicating that tenants and landlords will have to enter into repayment plans for any rent not paid during the state of emergency and that they will not be granting evictions for non-payment of rent during the state of emergency unless the repayment plan has been breached. The tenancy branch has not provided any further details on how these repayment plans will be entered into if a disagreement exists between the tenant and landlord regarding the terms or how non-payment of rent for months after the state of emergency will be addressed.

 

ICBC Argues Injured Plaintiff Should be Paid Less because She’s a Woman

When a young woman is injured in a motor vehicle accident it can have a profound impact on her future career plans and earnings. To add insult to injury, it can be hard to hear ICBC argue that her loss is not as great as that of a man due to the likelihood of her leaving the workforce to have kids.

That is just what ICBC did in the case of Broad v. Clark, 2018 BCSC 1068. In that case, the plaintiff was 23 years old when she was injured in an accident. She had been driving to work in the early morning when the defendant attempted to turn left directly in front of her causing the accident. The plaintiff was transported via ambulance to the hospital and was assessed as suffering from soft tissue injuries to the neck, chest, shoulder, and back. It was later identified that the plaintiff had suffered from several disc bulges in her spine that were resulting in lumps forming along her back and an annular tear resulting in a complex nerve lesion in her spine. The plaintiff was left with debilitating back pain that affected all aspects of her life and rendered her completely unemployable.

Before the accident, the plaintiff had worked as an administrative assistant in two separate office settings and planned to continue working for her current employer indefinitely. The plaintiff contended at trial that she would have continued working until retirement. At the time of trial 5 years after the accident, the plaintiff had two children, ages 10 and 2, respectively. ICBC argued that the plaintiff’s future lost earnings should be reduced based on the assumption that she would have voluntary withdrawn from the workforce or changed to working part-time in order to facilitate child care and meet family demands. ICBC’s argument centred on the fact that the plaintiff was a devoted mother to her children and would have altered her career plans due to that fact.

The court determined that the plaintiff had shown drive and determination pursuing her career prior to the accident, had previously returned to work after the birth of her children, and took pride in the economic independence that came with employment. Furthermore, the plaintiff did not intend to have any further children that would have required a maternity leave. The court determined that it would not be appropriate to make a reduction to her lost earnings based simply upon the fact that she had children. Furthermore, the court felt that reducing her damages due to future potential family choices would be unfair due to the fact that the calculations were based on gender-specific statistics that already reflect reduce earnings for females based on family choices.

In total, the court awarded the plaintiff $1,297,146 for loss of future earning capacity thus refusing to accede to ICBC’s position that her damages should be reduced simply because she was a female with children.

Canada Emergency Commercial Rent Assistance Program

In response to the Covid-19 epidemic, the Canadian government has offered unsecured and forgivable loans to eligible commercial property owners to reduce the rent for small business and to meet the operating expenses for commercial properties. Called the Canada Emergency Commercial Rent Assistance (CECRA) program, property owners will be eligible for assistance if they offer a minimum 75% rent reduction for the months of April, May and June 2020.

If accepted for the program, the CECRA will cover 50% of the rent for the months of April, May and June. Another 25% will be covered by the tenant and 25% of the rent will have to be forgiven by the landlord.

The application process begins on May 25, 2020. Commercial tenants are not able to apply for the program without their landlord. A landlord can apply on behalf of all their commercial tenants in one application process. 

For the CECRA program to be successful, it relies upon buy-in from commercial landlords since it is a voluntary program. The Canadian government is hoping that commercial landlords will want to participate in the program since the ability for commercial landlords to meet the expenses of the property long-term relies upon the success of their tenants.

In order to qualify, the commercial property owner must own commercial property occupied by one or more small business tenants and enter into a legally binding rental reduction agreement that includes a moratorium on eviction and a declaration of rental revenue. A small business tenant is a business that pays less than $50,000 in monthly rent, generates less than $20 million in gross annual revenue and has experienced at least 70% decline in pre-Covid-19 revenue.

In order to apply both the landlord and small business tenants must complete attestations confirming their eligibility for the program. Furthermore the landlord must enter into a rent reduction agreement with each small business tenant and a forgivable loan agreement with the Canadian government. These forms can be found online at https://www.cmhc-schl.gc.ca/en/finance-and-investing/covid19-cecra-small-business.

COVID-19 and Residential Tenancies

In response to the Covid-19 crisis the BC government enacted a number of measures affecting residential tenancies that remain in effect during the duration of the Provincial State of Emergency. Among them, these measures included a freeze on any rent increases and a prohibition on evictions.

A landlord can give notice of a rent increase during the state of emergency, but it will not come into effect until after the state of emergency has passed and will not apply retroactively to the months in which the state of emergency was in place.

With regards to the prohibition on evictions, the BC government has decided that all notice to end tenancy given after March 30, 2020 are of no force or effect. If a notice was given prior to March 30, 2020, the tenant may dispute the notice the Residential Tenancy Branch. If a tenant does not dispute the notice within the normal timelines they are deemed to have accepted the end of the tenancy, but the steps available to actually remove them cannot be used until after the state of emergency has ended.

Furthermore, orders and writs of possession issued prior to March 30, 2020 cannot be enforced until after the state of emergency is over.

During the state of emergency, landlords cannot evict a tenant for unpaid rent and/or utilities, cause, landlord or family use, sale of the property to a new owner who wishes to reside in the premise, end of employment as caretaker, or failure to continue to qualify for subsidized housing.

The Residential Tenancy Branch will allow landlords to apply to request the right to remove a tenant during the state of emergency, but will only allow the eviction under exceptional circumstances including if the tenants is significantly interfering/disturbing the landlord or another tenant in the premises, is jeopardizing the health/safety of the landlord or another tenant, the premise is at significant risk, extraordinary damage has already been done to the premise, or illegal activity is being engaged in at the premises.                 

It is important for tenants to be aware that although the state of emergency prevents most evictions the legislation still requires them to pay rent during the Covid-19 crisis. If a tenant fail to pay rent during the state of emergency a landlord can take steps to evict them once it expires.                  

When the state of emergency expires the prohibition on evictions will expire unless an additional ministerial order is passed. Both tenants and landlords should monitor the extensions the provincial government has given to the state of emergency and be prepared for when it will expire.

L.T. v. D.T. Estate (Re), 2019 BCSC 2130

In Canada, section 2 of the Assisted Human Reproduction Act sets out that “No person shall remove human reproductive material from a donor’s body after the donor’s death for the purpose of creating an embryo unless the donor has given written consent”.  In considering cases under section 2, the Supreme Court of Canada has made it clear that the ability of an individual, either living or deceased, to control the use of their reproductive material is of fundamental importance as it relates to human autonomy.

In the recent case of L.T. v. D.T. Estate (Re), 2019 BCSC 2130, the BC Supreme Court had to consider the proper application of section 2 in difficult circumstances. A young couple had been a long-term relationship for several years before marrying and having their first child together. Sadly, the husband passed away suddenly and unexpectedly 3 years into their marriage. After his death, the wife requested that a fertility clinic retrieve his sperm for future use. In the absence of a clear directive from the decreased, the fertility clinic required a court order before extracting the sperm. The wife then applied to the court for such an order.

Given the urgency of the matter and application, the Court ordered that the reproductive material be harvested and stored by the fertility clinic in order to give the parties time to present evidence and make detailed submissions.

At that hearing, the Court heard testimony from the deceased’s wife, several family members, and close friends each of whom testified that the deceased wanted to have more children; did not want his daughter to be an only child; and took great joy in being a parent. There was no evidence that the deceased would not have wanted his reproductive material to be used after his death. Frankly, he and his wife had not considered it at any time before he died and the court accepted that young couples do not commonly turn their minds to such matters. In summation, the wife asked the Court to consider the entirety of the situation when considering consent and allow the reproductive material to be maintained for future use by her.

Although the Court was highly sympathetic and agreed that the deceased wished to have more children prior to his death, the law clearly prohibited the use of his reproductive material without clear written consent and that consent could not be inferred from prior statements of the deceased on the general topic of having more children. The Court ruled that the deceased’s reproductive material was to be destroyed within 30 days of his order to allow the wife the opportunity to consider an appeal.

Congratulations Alexa Zimmer

Johnston Franklin Bishop is pleased to announce that Alexa Zimmer has been called to the bar, finishing her articles, and is now a lawyer. She will continue to practice law in the practice areas of real estate, wills and estates, and litigation with Johnston Franklin Bishop.

Grewal v. Litt, 2019 BCSC 1154

The recent decision of Grewal v. Litt, 2019 BCSC 1154 looks at the factors the Court will consider when deciding to vary a will that treats independent adult children unequally. The potential influence of cultural traditions and customs on the parents’ decision-making was a central issue in this matter.

In this case, Nahar and Nihal Litt passed away in February and March of 2016 respectively, leaving six adult children and an estate worth approximately $9 million dollars. The family’s wealth was accumulated through real estate; particularly farmland. The Litt’s mirror wills made in December 1993 left $150,000 be each of their four daughters with the residue of their estate to be divided equally between their two sons. The result was that the daughters, collectively, received $600,000 or 6.6% of their parents’ estate whereas the sons together received $8.4 million dollars representing 93.4% of the estate.

The four daughters applied to vary their parents’ wills and sought an equal distribution of the estate among all six children. While all parties to the proceedings agreed that their parents failed to meet their moral obligations to their daughters and that the wills should be varied, the sons were not agreeable to an equal division among all six children.

In support of their claim, the daughters pointed to traditions and customs within the Sikh culture that favour sons and, as a result, discriminate against daughters. They claimed that their parents felt bound to follow these customs, which were not in keeping with contemporary standards and resulted in the unequal division of their estate. They also gave evidence relating to their contributions to the farmland that made up a large part of the estate; their relationships with their parents; and the care they provided to their parents at the end of their lives.

In deciding that the daughters’ collective share of the parents’ estate should be increased from 6.6% to 60%, leaving the remaining 40% to be shared between the sons, the Court considered: gifts and benefits made to the children during the parents’ lifetime; the parents’ reasons for the distribution; the reasonably-held expectations of the children; the children’s contribution to the estate; the children’s relationship with their parents and contribution to their care; and the children’s personal circumstances. The Court also looked at the size of the estate, which was sufficient to provide for all of the independent adult children.

Throughout their lives, all children had assisted with and worked on the farm to varying degrees. The sons’ use of the farmland and receipt of revenue was considered both as a benefit received by the sons, which heightened the parents’ moral obligation to their daughters, and evidence in support of one son’s reasonable belief that he would receive a greater share of the estate. There were no circumstances that the Court found would negate the parents’ moral obligation to their daughters. They did consider a period of estrangement between the parents and one daughter, but as the parties had reconciled prior to the parents’ deaths, this was not a circumstance that would negate the parents’ moral obligation to that daughter.

In considering whether the parents were “bound” by culture and tradition, the Court accepted that the sons and daughters were treated unequally during their lifetime and by the wills, and that culture and tradition may have influenced the parents’ decisions with respect to distribution of their estate. The Court did not accept that this influence amounted to the parents believing they were bound with respect to decisions relating to their estate. The Court pointed to the fact that despite being estranged from her parents at the time the wills were made, one daughter was still treated in an equal manner as the other daughters.

This decision highlights that variation of a will to create an adequate, just, and equitable division will not always result in an equal division. The Court’s role is not to re-write the will, but only to vary it as necessary to create an adequate, just, and equitable result. In upholding the parents’ testamentary autonomy, the court chose to give equal portions of the estate to the daughters and equal portions to the sons, as opposed to equal division among all six children.

Covid 19

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