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Force Majeure in the Age of Coronavirus

The Coronavirus or COVID-19 Pandemic currently ravaging the world is having a profound influence on most of our lives. Social distancing, isolation, and quarantining mean that people are unable to go about their lives as usual. We can no longer travel or gather with others the way we used to only a matter of weeks ago. Indeed, many are housebound except for essential and necessary outings.

One of the effects of being unable to congregate or travel is that many contracts are having to be cancelled often on very short notice. Whether it be cancelling air travel or a car rental, a hotel room or a convention hall, many people are now unable to abide by contractual commitments they made before the outbreak.

Generally, a person who does not fulfill their obligations under a contract is liable to make-good the losses the other party suffers as a result of that breach. But what of a person who is unable to meet their obligations due to circumstances entirely unforeseen and beyond their control, like the Coronavirus pandemic?

Parties looking to protect themselves against such unforeseen circumstances can include what is known as a force majeure clause in their contracts. French for “superior force”, a force majeure clause relieves the parties from having to fulfill their contractual obligations when they are prevented from doing so by forces beyond their control. Force majeure clauses can apply to natural disasters, war, terrorist acts, or “acts of God” among many others. Whether a force majeure clause will apply to excuse a party from performance in any particular scenario will depend on the precise wording of the clause. For that reason, it is best that such clauses be as complete and exact as possible.      

Without an explicit and expansive force majeure clause, a party wishing to escape liability for the consequences of being unable to meet their contractual obligations will have to rely on common law doctrines such as frustration. Whether they are applicable depends wholly on the facts of a particular case. For that reason, a carefully drafted force majeure clause is always preferable.

Extended-Health and Disability Benefits under the New ICBC Regime

Some people have private or employer-provided extended-health and disability plans. Extended-health plans cover some of the cost of health care expenses such as prescription drugs while disability plans cover some of a person’s wages if they’re unable to work. In most instances, if a person is injured in a motor vehicle accident and needs to access these benefits, they are available to that person.

Until recently, if a person injured in a motor vehicle accident received extended-health or disability benefits, they could claim and recover from ICBC the full-amount of those benefits. As an example, if a person needed physiotherapy at a cost of $75 per session and their extended health plan covered $50 per session, they could still claim $75 from ICBC even though they were only out-of-pocket $25. The rationale was that ICBC who, unlike the injured person, is not a party to the contract providing the benefits and paid nothing by way of premiums for the benefits should not be able to take advantage of the benefits. Another good reason for this rule was that many benefits contracts oblige a person who is injured due to the negligence of a third party to claim and recover from that third party or their insurer (ICBC) the amount of benefits paid and remit that amount to the plan. This is called a right of subrogation. If an injured party couldn’t recover that amount from the third party’s insurer but still be contractually obligated to remit that amount to their plan, they would be at a loss, which would defeat the entire purpose of having the plan in the first place.  

This long-standing rule has since changed with amendments to the Insurance (Vehicle) Act.

Under the BC Government’s new ICBC regime, any benefits “paid or payable” by an insurer or employer, or under a collective bargaining agreement, are now deductible from a person’s ICBC claim. This means that any extended-health or disability benefits that a person receives – or were entitled to receive but, for whatever reason, did not receive – are deductible. Using the example above, if a person could have used their extended health benefits to off-set the cost of physiotherapy by $50 but didn’t such that they are actually out-of-pocket the full $75, they can still only recover $25. In this regard, there are many reasons why a person may not access their benefits. For instance, they might forget to apply, miss a deadline, or make a mistake in their application. Unfortunately, it does not matter how innocent the mistake or oversight is. The result is the same.

Moreover, the new amendments make it so that benefits are deductible even where the benefits-provider has a right of subrogation.

These changes are concerning for many reasons. First, relieving the negligent party from their obligation at law to compensate an injured person for their losses shifts the burden from the responsible party to someone else, here the injured person’s employer or their own insurance company. Second, eliminating the right of injured people to claim the full amount of benefits paid without also eliminating subrogation clauses could see injured people having to reimburse their plans with money they don’t have and are prevented from obtaining. This would be incredibly draconian and perverse. Third, since employers and other insurance companies stand to lose under this new regime, it is very possible that they may alter their contracts and practices to tighten the provision of benefits in all situations; not just those involving motor vehicle accidents.

Therefore, while these changes might make sense in principle, the BC government has not thought these changes fully through or done a good job implementing them. As with most of the recent changes to ICBC, innocent injured people stand to suffer.

Deposits in Real Estate Transactions

In most residential real estate transactions, the purchasers will pay a deposit to their real estate brokerage upon their offer being accepted.

The deposit is usually paid within a specified timeframe following the seller’s acceptance of the offer, and prior to subject conditions being removed. There is no legislated or mandatory timeframe for payment of a deposit or the minimum amount for a deposit. These issues are determined by the parties when negotiating the contract of. Failure to provide the deposit within the required timeframe can result in termination of the contract.

If the subject conditions are removed and the transaction completes, the deposit will be applied to the purchase price, and will be accounted for on the Purchaser’s Statement of Adjustments.

If the transaction does not complete, the real estate brokerage must have the written consent of both the buyer and seller before releasing the deposit. If there is a dispute regarding a party’s right to terminate the contract, this may delay the release of the deposit.

Real estate brokerages will normally provide a release for execution by the parties. In addition to authorizing the release of funds, the release may also include terms releasing any claims the parties may have against each other. If you are executing a release relating to a deposit, it is prudent to obtain legal advice to understand the implications of the document.

What happens to my Family Law Claim if I die?

If a party to a Supreme Court family law proceeding dies before the matter is resolved, the rules of court allow the case to continue.

Family law proceedings can also be started after one party has died provided, of course, that they are filed in the within the appropriate time period. Under the Family Law Act, S.B.C. 2011, ch. 25, proceedings with respect to property division and spousal support must, for common-law partners, be started within 2 years of the date of separation and, for married couples, within 2 years of the date of an order for divorce.

In either case, the deceased party must be represented by someone acting on behalf of their estate. In some cases, claims relating to support may not be pursued, but property division claims can be continued for the benefit of the deceased party’s estate.

Assets or amounts payable to the deceased party at the resolution of the claim will be paid to their estate, and, after payment will debts, will pass to the beneficiaries of the deceased party’s estate.

These provisions are necessary for situations where spouses have separated, but have not initiated or completed property division and other matters. Upon separation, both married and common law spouses cease to be spouses under the Wills, Estates and Succession Act, S.B.C. 2009, ch.13. As a result, a separated spouse is not entitled to inherit on intestacy (where the person dies without a will) or under a will that was drafted prior to inheritance, and doesn’t have standing to apply to vary a will. As such, family law proceedings may be the only avenue to complete division of assets and resolve issues relating to the parties’ separation.

Notice of Dispute in Estate Matters

A Notice of Dispute can be filed with a B.C. Supreme Court Registry by a party that wishes to oppose certain steps in estate proceedings. The Notice of Dispute has replaced caveats.

The most common reason for filing a Notice of Dispute is to oppose the issuance of a grant of probate or administration; however, they can also be filed in opposition to the issuance of an authorization to obtain estate information or resealing information, or to oppose the resealing of a foreign grant.

In order to file a Notice of Dispute, it must be in the correct form and must be filed by a person who is entitled to do so under the Supreme Court Civil Rules. An individual may only file one Notice of Dispute and it must be filed prior to an estate grant or authorization being issued, or the resealing of the foreign grant.

A grant of probate or administration cannot be issued while the Notice of Dispute is in effect. A party that is interested in the estate, including a proposed executor or a beneficiary, can make an application to have the Notice of Dispute removed on the grounds that removal is in the best interest of the estate. If no steps are taken to remove it, it will remain in effect for a period of one year, or until the expiration of any renewal period, if applicable, after which it will expire and cease to be in effect.

It is important to seek legal advice regarding your entitlement to file, applicable time limits, and the steps that can be taken after a Notice of Dispute is filed.

What is Probate?

One of the first steps required of an executor or administrator is to determine the deceased person’s assets and liabilities. In most cases, this will indicate whether a grant of probate is required.

Probate is a grant from the Supreme Court confirming the authenticity of the deceased’s last will, and giving the executor appointed in the will the authority to act. If the deceased died without a will, a party can apply for a grant of administration and, in that case, will be appointed administrator of the deceased’s estate.

After someone is appointed as executor or administrator, they have authority to deal with the deceased’s assets. They are responsible for payment of all debts and for distributing the remaining assets in accordance with the will, or as set out in the Wills Estates and Succession Act if the deceased did not have a will.

When is Probate Required?

Probate is not required in all situations. If a deceased’s assets do not include real property and the total value of all assets is under $25,000, a grant of probate may not be required.

A common example of this is when spouses hold all or most of their assets jointly. All jointly held assets would transfer to the surviving spouse automatically and would not form part of the deceased’s estate. If the total value of assets held solely in the name of the deceased is under $25,000, a grant of probate may not be required.

When an estate includes real property that was held solely in the deceased’s name, the Land Title Office will require a grant of probate or administration prior to transferring the property to the executor or administrator to dispose of in accordance with the will or the Will Estates and Succession Act.

In most cases, financial institutions will require a grant of probate or administration if the deceased’s financial assets total more than $25,000. This total does not include jointly held accounts and registered investments and accounts.

In some circumstances, probate will still be required when the value of the estate is less than $25,000.

Applying for Probate

After determining the assets and liabilities of the deceased, the executor must prepare the application forms prescribed by the Supreme Court Civil Rules. These forms include a “Statement of Assets, Liabilities and Distribution”, which sets out all of the deceased’s assets and liabilities, and corresponding values. Probate fees will be determined based on the values included in this document.

Prior to submitting the application, notice must be provided to all beneficiaries, any other person named as executor or alternate executor, all parties with standing to apply to vary the will, and all parties who would have inherited under the Wills, Estates, and Succession Act had there been no will. For applications for administration, notice must be provided to all intestate successors and to all creditors with a claim over $10,000. This notice must be provided at least 21 days before the application is submitted to the Court.

Most applications are processed without the need for a hearing. In some circumstances, a judge may require the executor or lawyer acting for the executor to appear in court to address any questions or concerns prior to issuing the grant of probate or administration. Alternatively, if the application documents require correction or further details, the Court Registry may notify the applicant and the application will be placed on hold until the request is addressed.

Probate Fees

Probate fees are payable to the Minister of Finance and must be paid to the Supreme Court Registry in order to release the grant of probate. The first $25,000 of an estate are not subject to probate fees. The first $25,000 to $50,000 of an estate’s value are subject to probate fees are $6 for each $1,000. This increases to $14 for each $1,000 over $50,000.

If further assets are discovered after probate has been granted, an executor has an obligation to disclose this to the Supreme Court and to pay additional probate fees.

Probate fees are different from income tax, which will be payable throughout the course of administration of an estate. An executor or administrator should also consider legal and accounting fees, which are also distinct from probate fees.

Residential Tenancies: Purchasing Tenanted Property

If you are purchasing property that is occupied by a tenant, a tenant’s right to occupy the property can survive the change in ownership.

If the purchaser or a close family member of the purchaser intends to occupy the property, they must ask the current owner to provide two months’ notice to the tenant. This can only be done when all subjects have been removed and the offer to purchase is unconditional.

This is particularly important when determining the completion and possession dates for the purchase. If the completion date is earlier than the end of the two-month notice period, the tenant is still entitled to remain in the property until the expiration of the notice period.

In these situations, a purchaser must be aware that they may not be able to occupy the property on the possession date. If they are selling their existing residence at the same time, they will have to arrange for alternate accommodation until the end of the tenancy.

If the tenant occupies a suite within the residence, the purchaser requesting that the tenant be evicted must have a good faith intention to occupy the suite. The tenant cannot be evicted for the purposes of renting the suite to a new tenant that is not a close family member of the purchasers.

In situations where the purchaser wishes to keep the existing tenant, the damage deposit and rent will be adjusted for on the completion of the purchase. It is prudent to execute and assignment of the tenancy agreement.

Down Payments vs. Closing Costs in a Real Estate Transaction

Down-payments are often confused with closings costs. Here are the differences between the two. 

Down Payment

A down payment is an amount lenders require you to come up with yourself. This amount will be applied towards the purchase price together with the mortgage funds received from your lender. The amount is usually calculated as a percentage of the purchase price.

Lenders generally require you to come up with a minimum down payment of 5% of the purchase price although this amount may be higher depending on the terms of the mortgage. It is often a requirement that the money used for you down payment cannot be borrowed.

Closing Costs

Closing costs represent the total costs involved in completing your purchase. These will include the amounts that are debited from the purchaser such as: the purchase price, Property Transfer Tax and GST, if applicable, title insurance, the cost of obtaining confirmation of insurance coverage, and legal fees and disbursements.

Amounts that will be credited to the purchaser and applied against the debits include mortgage proceeds and the deposit paid to the real estate brokerage, if applicable.

There will also be adjustments between the parties, be it a debit or credit, depending on the date the transaction completes. Annual property taxes will be adjusted along with utilities or strata fees, if applicable.

The difference between the amounts credited and debited to a purchaser will indicate the amount that they must pay to their lawyer in order to complete the purchase. These funds are often referred to as the balance required to complete, and represent both the closing costs and down payment. In most cases, the balance required to complete must be provided by way of a bank draft.

The seller will be responsible for payment of the real estate commissions, their legal fees, and the amount required to payout their mortgage and any other financial charges on title, if applicable. These amounts will be paid out from the sale proceeds and the balance will be paid to the seller.

Supreme Court Declares BC Government’s Limits on Expert Reports Unconstitutional

People injured in car accidents must generally get an opinion from one or more “experts” in order to prove their claims. These opinions most often come from doctors although they can also come from other professionals such as occupational therapists and economists. These opinions must be written down in the form of an expert report.

The type and number of experts needed varies from case to case and depends in large measure on the injuries and losses the person has suffered. For instance, a person who suffers a broken bone will likely need an opinion from an orthopaedic surgeon. A person with a brain injury will likely require the opinion of a neurologist. Someone suffering from depression or PTSD will need an opinion from a psychiatrist. While it would be nice if a single doctor could give an opinion on all of a person’s injuries, ICBC, on the one hand, tends to not put much weight on reports written by family doctors (even if they did, not everyone has a family doctor). On the other hand, ICBC frequently argues that specialists are not qualified to give opinions outside their specific area of expertise. For that reason, a person suffering from multiple different kinds of injuries has to get opinions from multiple doctors if they stand a chance of fully proving their claims.

Until recently, there has never been a hard limit on the number of expert reports a person could tender at trial.

That all changed on February 11, 2019 when the BC Government changed the rules of the Supreme Court to limit the number of expert reports an injured person could rely on at trial. This change was done without warning and, for the first time ever, without having been recommended by the committee of judges and lawyers that oversee the rules of court. These changes were implemented by the Attorney-General who made it abundantly clear that the only reason for the limit was to save ICBC money. As an ICBC representative confirmed, half the expected savings would be “due to lower payments for damages – more expert reports make claims more expensive.” That’s another way of saying the limits were expected to prevent injured people from fully proving their case and, as a result, being fully compensated for their losses.

This was an unprecedented move. Never before had an Attorney General (who just happens to also be the Minister Responsible for ICBC) interceded to change the Rules of Court to favour a single institutional litigant, ICBC, to the detriment of innocent, injured people.

It didn’t take long for such an injured person to challenge the legality and constitutionality of these rule changes. That challenge was heard by the Chief Justice of the BC Supreme Court this summer.

In Reasons for Judgment indexed as Crowder v. British Columbia (Attorney General), 2019 BCSC 1824 and released at the end of October, the Chief Justice agreed that the magnitude of the changes were not authorized by the Court Rules Act, stating that:

[120]     I find that the effect of the impugned Rule is to change the substantive law of evidence that has guided this Court from its inception, and I find that this is not one of the exceptional cases referred to by Justice Lambert where the Rules may create new substantive law. Accordingly, I find that the Rule 11-8 Orders (and with it, the impugned Rule) are not authorized by the Act.

Furthermore, he determined that the limits infringed upon the core jurisdiction of the court and were, therefore, unconstitutional:

[196]     I find that the impugned Rule infringes on the court’s core jurisdiction to control its process, because it restricts a core function of the court to decide a case fairly upon the evidence adduced by the parties. The effect of the impugned Rule is to require the court to play an investigatory function in place of its traditional non-adversarial role, contrary to the principle of party presentation.

As a result, the Chief Justice declared the limits to be invalid and of no force or effect.

Before concluding, another stated reason for the limits on expert reports was that it would save ICBC from having to pay the cost of those reports when they settle a claim or lose at trial. However, ICBC has always had the ability to challenge having to pay for such reports and the Court has always had discretion to disallow some or all of the cost of an expert report if it determines the report shouldn’t have been procured or cost too much.  

Steps in a Real Estate Transaction

  1. Initial Offer

Upon viewing a property and wanting to buy it, a potential buyer will make an offer. The seller may reject or accept the offer, or they may make a counter offer and negotiations will follow. The document containing the offer is called a Contract of Purchase and Sale, and will be amended based on the negotiations. It will also include any subject conditions that must be satisfied before the contract becomes binding.

  1. Investigations

The subject conditions in the contract allow the potential buyer to undertake certain investigations, and confirm the availability of things like financing and insurance, prior to entering into a binding contract. Investigations may include having a home inspection, reviewing a well report, reviewing the title to the property, a property disclosure statement, and a survey, if available.

  1. Deposit

Buyers are normally required to pay deposit towards the purchase prior to completion. The deposit is often paid within a specified timeframe following acceptance of an offer, or following final subject removal.

  1. Subject Removal

After the buyers have satisfied their subject conditions, the conditions will be removed and the contract will be binding. In the event that the buyers are unable to satisfy a condition, such as a satisfactory inspection, they may elect to terminate the contract.

  1. Document Preparation and Execution

The buyer and seller must retain separate lawyers or notaries to act on their behalf to close the transaction.

The buyer’s lawyer is responsible for preparing the majority of the documents, and will send the documents that the seller must sign to their lawyer.

The buyer’s lawyer will receive instructions from their lender, and will prepare the required mortgage documents for execution and registration. They will confirm that appropriate insurance coverage will be in place, and arrange for title insurance, if required.

Appointments for signing usually occur one to two weeks prior to the completion date. It is important for buyers and sellers to let their lawyer know in advance if they will be away prior to complete, or will be signing out of province, as additional arrangements may need to be made.

  1. Closing

On the completion date, the buyer’s lawyer will attend to registration of the transfer and mortgage, if applicable, and supporting documents. The sale proceeds will be sent to the seller’s lawyer on their undertaking to payout any existing mortgages or financial charges, if applicable, prior to releasing the balance of the funds to the seller.

The lawyers also attend to payment of the other associated costs on behalf of their clients, including outstanding property transfer tax and real estate commissions.

The lawyers will notify the real estate agents that the sale has completed, and the real estate agents will arrange for possession and exchange of keys.

  1. Clearing Title

If an existing mortgage or other financial charge, such as a judgment, was registered against title, the seller’s lawyer will be responsible for ensuring that these charges are paid out and removed. They will provide the buyer’s lawyer with confirmation following the discharge of any financial charges.

It often takes between 30 – 60 days for the seller’s lender to provide the seller’s lawyer with the executed discharge of mortgage. It is important for buyers to be aware of this, as it could restrict their ability to immediately sell or transfer the property following their purchase.

  1. Report on Title

Upon clearing the seller’s financial charges, the buyer’s lawyer will report to the buyer and the lender, if applicable, and will provide a State of Title Certificate. The State of Title Certificate will show that the buyer is now the registered own of the property, that any prior financial charges have been discharged, and that the new mortgage, if applicable, appears on title.