What to Bring to your First Meeting with a Lawyer

At Velletta & Company, our number one goal is to provide each of our clients with exceptional customer service. This starts right from the very first meeting. Throughout your matter, you may find yourself in our office or in contact with us quite frequently and we want to make sure we start the relationship off on the right foot!

Here are 5 things that you as the client can bring to make the process go even smoother.

 

  1. Two pieces of photo ID.

We need to confirm that you are you! Your ID is necessary for us to have relevant information about you that relates to the case such as your legal name, drivers license #, etc.   Examples of acceptable ID include Driver’s License, Passports and Medical Services Card (with photo ID).

 

  1. Pen & Paper

We will cover a number of things in our first meeting and there may be certain steps or documentation that we need you to follow through with—so note-taking in our meetings is always encouraged! Whether it is a pen and paper or notes on your cell phone—anything works.

 

  1. A List of Questions

Before your meeting write down any questions you may have. We are happy to answer them all and to help you understand the process that will take place. We want to make sure the process is as stress-free for you as possible.

 

  1. Relevant Documents

Bring any documents you currently have relating to your case. These may be a range of things and will vary based on your case. But the general rule of thumb is that if it has any relevance at all to your case, bring it in.

 

  1. Method of Payment

Please ensure that you bring a method of payment with you. We will notify you before the meeting of our consultation or retainer fees if they apply.

 

By bringing these 5 items with you to your first meeting we can ensure the process goes even smoother for both parties involved. We can also dive right into the details of your case and begin the steps necessary to ensure the best outcome possible!

The New Civil Resolution Tribunal

the-new

In British Columbia, most disputes involving less than $25,000 are resolved through Small Claims Court. Unfortunately many Small Claims litigants find this process time consuming and difficult to navigate without a lawyer, despite efforts to make it easier for parties to represent themselves and quickly settle their disputes through negotiation. Even with these efforts, Small Claims cases can take over a year to go to trial, if the case does not resolve at the mandatory settlement conference. In response to these problems, some have called for an expedited administrative process to deal with smaller disputes in a timelier manner, and without all of the formalities and rules of a traditional court proceeding. In response to these concerns British Columba enacted the Civil Resolution Tribunal Act [SBC 2012] c. 25 (the “Act”).

 

The Act

The Act establishes a Civil Resolution Tribunal (the “CRT”) that would provide an accelerated process for resolving minor strata property disputes and civil disputes up to $10,000. Initial tests of the tribunal process using a voluntary model showed low adoption, and so the process was made mandatory. The actual implementation however has been slow, and the Act is not yet fully implemented. In July 2016 the CRT began accepting strata disputes, and the current plan appears to be that in 2017 the CRT will begin accepting civil disputes up to $10,000.

 

Our firm regularly conducts Small Claims cases on behalf of our clients, and we are actively monitoring the development of the CRT so that we can advise our clients regarding this new dispute resolution process.

 

The Act contains a number of provisions that will make the CRT process very different from the traditional Small Claims Court process. Section 18 of the Act states that a tribunal proceeding is to be conducted with as little formality and technicality, and as much speed as is possible under the Act, the Rules, and with a proper consideration of the issues in the dispute.

 

The First Major Difference

Most, if not all, CRT proceeding will be conducted over the internet. Section 19 of the Act specifies that the tribunal may use electronic communication tools to conduct all or part of a proceeding. Courts have already begun to adopt online communication tools like video conferencing, but such methods are the exception rather than the rule. The CRT will change this, but it is not yet clear how the CRT intends to deal with parties who do not have internet access or who are not familiar with computers. One only has to sit through one attempted video conference that experiences technical difficulties to discover how quickly technology can malfunction, even with technologically sophisticated parties.

 

The Second Major Difference

Lawyers will only participate in CRT hearings under limited circumstances. Section 20 sets out that generally the parties are expected to represent themselves. There are exceptions that allow lawyers to act in CRT hearings when their client is a child or mentally impaired, when the rules otherwise permit, or when the tribunal deems it in the interests of justice and fairness.

The Possible Effects

Naturally lawyers are concerned about any quasi-judicial process that limits the rights of the parties to retain trained legal counsel. This is not a concern that is born out of self-interest. Disputes under $10,000 are rarely a profitable endeavor for a lawyer. The concern is that lawyers often play a vital role in negotiating matters, keeping the parties calm, and ensuring that the process runs smoothly. Lawyers also help muster the evidence and present it in an organized and compelling manner to secure the best possible result for their clients. Without lawyers involved in the process, the tribunal itself will have to accomplish these tasks, as well as adjudicating the dispute. If the tribunal fails to fill this void, the inevitable reality is that some parties will suffer from the lack of legal counsel.

 

It is too soon to tell how the CRT process will actually be implemented, but we are cautiously observing the development of this new process in order to monitor any potential impact on our clients.  If you have any questions, as always, contact us here at Velletta & Company!

 

ABOUT THE AUTHOR

_DSC0089_lowrezCadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

OPCA Litigants: Their Own Worst Enemy.

The term “OPCA litigant” (Organized Pseudolegal Commercial Argument litigant) appears to have been first coined by Mr. Justice Rooke of the Alberta Court of Queen’s Bench, in his seminal decision of Meads v. Meads, 2012 ABQB 571*.

Meads was a family law case in which one party chose to advance a number of meritless arguments in an attempt to deprive the court of jurisdiction or otherwise derail the matter. These arguments included claiming that the opposing party, the opposing party’s lawyer, and the court were attempting to “induce him into slavery”. The OPCA litigant produced reams of documents and left a court hearing half way through, apparently out of the fear that by remaining he would accept the court’s jurisdiction over him.

 

Mr. Justice Rooke took the case as an opportunity to release a massive 188 page decision that not only dealt with the issues between the parties, but went on to explore in depth the different types of OPCA litigants and explain why their arguments don’t work.

OPCA litigants have many different varieties. Some of the more common variants include the Freemen on the land” movement, de-taxers and Sovereign Citizens; but there are many others. The main characteristic of OPCA litigants is that they purport to believe that they have some kind of special tactic that will deprive the court of jurisdiction over them, or otherwise exempt them from following the law.

OPCA litigants usually represent themselves, as all lawyers are officers of the court with a duty to refrain from vexatious or meritless litigation, and so it is extremely unlikely that a lawyer would knowingly advance the case of an OPCA litigant. Many self-represented parties do an excellent job and would never engage in OPCA tactics, but almost all OPCA litigants are self-represented. This self-representation makes OPCA litigants even more challenging, because the court has a duty to explain the process and render some limited level of assistance to self-represented litigants. In the case of OPCA litigants, the court has to walk a fine line to fulfill their duty to the self-represented party, while also minimizing the impact of the shenanigans in which OPCA litigants routinely engage. The courts across Canada are increasingly aware of this issue, and are actively working to avoid the negative impacts of OPCA litigants.

 

Don’t Buy in to the OPCA!

The various strategies of OPCA litigants are too wide-ranging to fully discuss in this article, but some of them include:

  • Claiming that they are “natural persons” and are subject only to “God’s Law” and not to the laws of man;
  • Alleging that individuals are only obliged to pay income tax if they opt-in to government provided programs, like Canada Pension Plan;
  • Relying upon centuries-old statutes from England as part of an argument that Canadian courts lack jurisdiction to decide legal matters;
  • Claiming that due to procedural irregularities in their creation, Canadian courts only have jurisdiction over admiralty law and the sea, and have no jurisdiction on dry land;
  • Flat out refusing to acknowledge the jurisdiction of the courts, on the basis that the court has no jurisdiction over the individual unless the individual accepts the jurisdiction of the court.
  • Affixing stamps, thumb prints, and Latin phrases to documents, either to deliberately confuse the reader, or out of the belief that these items have some legal significance or impact.

Most troubling is the fact that OPCA argument is often promoted by “gurus” who sell their strategies to gullible individuals. This is especially common with tax evasion schemes where a guru will convince people that a made up strategy can allow them to never pay income tax and thereby take home more money. Often these gurus end up in jail or on the losing end of civil court actions due to their own strategies, but that is little consolation to someone who bought in to the guru’s strategy and ended up facing serious regulatory or criminal penalties; such as going to jail for tax evasion.

Canadian courts have unequivocally rejected the arguments and strategies advanced by OPCA litigants, especially the OPCA claim that the courts lack jurisdiction. The courts exist to enforce the law, to provide a venue for the resolution of disputes, and to create order in our society. In order to do this, the courts need the jurisdiction to fulfill these goals. In Meads at para 370 the court succinctly explained the position of Canadian courts towards OPCA and jurisdiction:

“There is always a court, though perhaps not this one, that has jurisdiction over these litigants and their activities. They cannot opt out. All arguments that invoke ‘immunity’ and indeed any schemes that claim a person can possess or acquire a status that allows them to ignore court authority are incorrect in law.”

The Meads decision goes on to address the other strategies of OPCA litigants, including debunking the idea that centuries-old statutes like the Magna Carta protect individuals from all government legislation, and rejecting the OPCA theory that everything, including paying income tax, is a contract that you can opt out of or terminate.

The court in Meads ultimately concluded that none of the OPCA strategies were valid, and stated that courts should dispose of OPCA arguments as directly as possible to protect those targeted by OPCA litigants, avoid the waste of court time, and to send a clear message that OPCA strategies will not succeed.

The end result is that pursuing these strategies will not magically make the case against you go away, and at most will result in only a temporary delay of the proceedings, while reducing the credibility of any legitimate legal arguments that you may have.

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What to Do When Faced with an OPCA Litigant?

The recent BC Supreme Court case reported under the style of cause For the Peter of the August-Sjodin Family,: sp17uwe./:secwepemc v. Little Shuswap Lake Indian Band, 2016 BCSC 1213, illustrates the damages that a vexatious OPCA litigant can cause.

The unusual style of cause gives away the OPCA strategies of the litigant in this case, who commenced various actions against his tribal band and its officials. The plaintiff was seeking, among other things, access to facilities from which he had been banned and compensation of “$20,000 in functional fiat Canadian currency from each defendant.”

The Notice of Civil Claim contained stamps, fingerprints, numbers and random letters that the court concluded were meaningless. The legal actions started by the plaintiff did not appear to have any merit, but still had to be defended by the defendants, causing significant costs.

Ultimately the court made an order that the plaintiff would have to provide security for costs before he could proceed with his action. This meant that the plaintiff could not take any steps in his lawsuit without putting an amount in to court that was deemed sufficient to cover the defendant’s costs if the plaintiff ultimately lost the case. Unfortunately the defendants were left with no recourse against the plaintiff to cover the already substantial legal costs that they had been forced to incur, because the plaintiff had no money. It is unlikely that the plaintiff would come up with the security for costs, and so his case was effectively at an end.

OPCA litigants usually end up in disputes with the government, but in civil actions against a private defendant the OPCA litigant can cause you to incur substantial costs just to deal with the OPCA litigant’s nonsense. If the OPCA litigant has no money these costs may be impossible to recover, so dealing with an OPCA litigant as cost effectively as possible is a priority.

 

The following are some of the strategies available to limit the damage caused by OPCA litigants:

  • Make an application to strike the OPCA plaintiff’s pleadings. This involves an application to a Master of the court, or a judge, and if the application is successful then the plaintiff’s claim against you can be dismissed. More likely the court may order that the plaintiff amend their claim, which limits the benefits of this option.
  • If the OPCA litigant actually has property, then you may pursue an award of special costs against them in order to recover the legal fees that you were forced to incur due to their meritless claim. This is possible where the OPCA litigant’s conduct has risen to an outrageous level and fulfills the legal test for an award of special costs. Unfortunately, many OPCA litigants are also flat out broke so no award of costs could ever be collected.
  • Seek security for costs where the OPCA litigant’s claim, defence or application is clearly meritless. This strategy appears to be gaining popularity to deal with the fact that many OPCA litigants will never pay a costs award after the fact. Where appropriate, your counsel might apply to the court for an order that the OPCA litigant be forced to pay into court an amount to cover costs before they can proceed with their litigation. For impecunious and vexatious OPCA litigants, this might prevent them from being able to proceed with their litigation.
  • Finally, for particularly persistent OPCA litigants someone may ultimately need to make an application to have them declared a vexatious litigant. If successful, that type of application can result in an order prohibiting the OPCA litigant from starting new lawsuits without the permission of a judge.

 

Conclusion

Many people would love to write their name in capitals, reference some centuries-old statute, throw in some incorrectly used Latin phrases and a few thumb prints for good measure, and completely avoid income tax, child support, or other obligations. Fortunately this is simply not possible.

The various OPCA schemes only end one way, with the OPCA litigant on the losing end; despite any meritorious arguments that they may have had before resorting to OPCA strategies. There are techniques for dealing with OPCA litigants, should you ever have the misfortune of facing one in a civil matter.

If you do find yourself in such an unfortunate situation, it is wise to seek experienced legal counsel as soon as possible. Velletta & Company is proud to offer a full range of legal services, including civil litigation defence. We have dealt with OPCA litigants in the past, including securing special costs awards against OPCA litigants. Contact us today!

 


*To anyone who is interested in reading more about this topic, the author recommends the Meads decision above as an excellent starting point as it cites many of the important OPCA decisions in Canada.

Why should you choose Velletta & Company?

Meet Mr. Michael Velletta as he explains how he and the team at Velletta & Company are here to help you!

Promissory Notes

Promissory Notes: Ancient Origins, Modern Importance

Promissory notes are believed to have originated in ancient China, and then made their way into European history, before ultimately becoming an important part of modern business. In ancient times money was made of precious metal, and any large transfer of funds over a distance was a heavy proposition, so promissory notes evolved as a lighter alternative. Now it is common to use promissory notes in many different business transactions, and for loans between private individuals. The Canadian Bills of Exchange Act (R.S.C., 1985, c. B-4) creates a statutory definition in section 176(1) for promissory notes in Canada:

 

“an unconditional promise in writing made by one person to another person, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person or to bearer.”

 

Benefits of Promissory Notes

The main benefit of a promissory note is that it clearly documents an obligation to pay money, and creates a strong cause of action in the event that the issuer defaults upon the note. The signed promissory note is effective from the time it is made, and is an independent obligation of the issuer. If the note is drafted properly, the holder of the note can sue upon it without having to prove much beyond the fact that the defendant issued the note, and then defaulted upon it.

 

Strategically, having a signed promissory note can be invaluable to a creditor seeking to collect upon a debt. Collections work is pragmatic, and no creditor wants to spend more money enforcing a debt than the debt is actually worth. Litigation is expensive, and it takes a significant amount of time to obtain a judgement. In order to provide a more efficient method of obtaining judgment, the British Columbia Supreme Court Civil Rules contain a process called a summary trial. A summary trial is available in cases where a judge is able to decide the issue without having to hear live testimony and weigh the credibility of the parties. A signed promissory note can help a creditor to qualify for the summary trial process, and as a result obtain a more rapid and cost effective judgment against the debtor.

 

Pitfalls of Promissory Notes

 

1: A Sum Certain in Money

In order to be a promissory note, the document must make it clear that the issuer of the note is unconditionally promising to pay a specific amount of money. This makes a promissory note distinguishable from a revolving line of credit. The note must make it clear how much is owed by the issuer of the note. If the amount is not clear, then you have no promissory note, and consequently a big problem.

 

2: Interest

If the note contains interest, it must be clear how interest is calculated. This ties in to the requirement that the note be for a sum certain in money. The interest must be capable of being objectively calculated, and this requires that the rate of interest be stated, along with the formula for how interest is calculated – e.g. simple interest, or interest compounded monthly.

 

3: Notice of Default or Demand for Payment

Notes need to make it clear when a default has occurred. Many notes with regular payments contain a provision that the holder of the note must give notice of default to the issuer of the note, and the issuer must fail to remedy the default within a certain period of time, before the issuer can accelerate the debt and collect. If you are the one signing the promissory note, you may want a provision that gives you time to remedy a default without the holder of the note taking collection actions. On the other hand, if you are the holder of the note, you need to make sure that you give notice of a default correctly, and wait the requisite amount of time before taking collection actions.

 

For promissory notes that are payable on demand, you will also likely want to include in the note the amount of time that the issuer has to pay the note, after demand has been given. Under the common law, the issuer had a reasonable amount of time to satisfy the demand, and this had to be assessed taking into consideration the amount of the note. You would be wise to include a specific amount of time in order to avoid this issue, and make it totally clear how much time the issuer has to satisfy the demand.

 

For both defaults on installment notes, or demands for repayment on demand notes, the note should specify whether the notice must be given in writing, and whether it needs to be given at a particular place. In order to give effective notice, the holder of the note will need to comply with these requirements, or else the notice may be ineffective and therefore not trigger the issuer’s obligations.

 

4: Limitation Periods

Promissory notes can be either due on demand, or else contain specific dates on which payments must be made. For both types of notes, if the issuer defaults, you must bring a civil action to enforce the note within the applicable limitation period. The Limitation Act [SBC 2012] c.13 creates a general two year limitation period to commence a civil action. This limitation period runs from the date that the claim is discovered. For a note with regular payments, a claim would usually be discovered when the issuer of the note defaults upon a payment and fails to remedy the default within any time specified in the note.

 

For demand notes however, the situation is potentially much different. A note payable on demand can be demanded by the holder of the note at any time. Under the common law, demand notes were considered to be due and payable when the note was issued, and the limitation period ran from that date. Fortunately, the Limitation Act contains section 14, which provides that for claims upon a demand obligation, the claim is discovered on the first day that there is a failure to perform the obligation after a demand for performance has been made. This protects the holder of a demand note from their claim becoming statute barred before they have even issued a demand for performance. This only protects the holders of demand notes in British Columbia, and other jurisdictions might have less forgiving limitation periods.

 

Whether your note is payable in installments, or due on demand, it is vital to commence your enforcement proceedings quickly after there is a default. Failing to do so might result in your claim expiring, and then you are left unable to collect upon the amount in court.

 

5: Acceleration on Default

When a note contains payment in installments, and a payment is missed, this traditionally only allows the holder of the note to sue for the missed payment. The holder of the note could not sue for the full amount of the note unless there is a provision allowing the holder to accelerate the debt. Acceleration is important, because if the issuer of the note starts missing payments, you want to be able to claim the whole amount owing immediately, and not have to commence a separate lawsuit for each missed payment as the payments are missed. Promissory notes are subject to the legal rule of contra proferentem, meaning that courts will strictly interpret any ambiguity in the note against the party who drafted it, resolving any doubt about the meaning of a term in favor of the other party. It is important that the provision is drafted clearly, and gives the holder of the note the unambiguous right to claim the entire outstanding amount as immediately due and owing if the issuer of the note defaults upon a single payment.

 

From a practical point of view, you might choose not to accelerate the note, but the threat of doing so is a powerful bargaining chip to keep the issuer of the note on track with their payments.

 

Why Hire a Lawyer for a Promissory Note?

Our office routinely sees promissory notes that were drafted by the parties themselves without the benefit of legal assistance. These notes can range from relatively well drafted notes that are still enforceable despite their flaws, to totally useless pieces of paper that provide nothing more than a false sense of security. Even worse, we see clients who loaned money or made an agreement verbally and did not get a signed promissory note at all, which makes it potentially much harder to collect the amount owed.

 

For a lawyer, drafting an enforceable promissory note is relatively simple, and can be done for the client affordably. The lawyer will also meet with you to review your specific circumstances, and can advise you about any particular pitfalls in your situation, or about additional steps that you can take to protect yourself. In many cases, if you are loaning money and the debtor has assets, you might also want to obtain security over those assets so that you have collateral in the event that the debtor defaults. When the small cost of having a lawyer draft the note is compared with the huge hassle you can face in the event of a default, it is clear that if you are lending any significant amount of money, you’d be wise to have a lawyer prepare a promissory note.

Pre-Judgement Garnishing Orders

Pre-Judgement Garnishing Orders:
A pre-judgement garnishing order is an extraordinary remedy that can get money paid into court before a trial, and helps insure that the plaintiff will not end up with a paper judgement against a defendant who has no assets or funds. A plaintiff may apply to the court for a pre-judgement garnishing order immediately after filing their notice of civil claim, and before serving the defendant and thereby alerting them to the lawsuit.

If the garnishing order is granted, the parties named in the order who owe money to the defendant must instead pay those funds into court. The person upon whom the order is served is referred to as the “garnishee”. The funds are then held until the court makes an order regarding who gets the funds – the plaintiff or the defendant. The result is that the plaintiff can secure part of their claim early on, before the defendant even knows that they are being sued. This element of surprise helps to prevent the defendant from dissipating or hiding their funds once they know about the lawsuit.

Criteria:
Pre-judgement garnishment is an unusual remedy, because even though the plaintiff has not yet proven their case, they are able to garnish funds owed to the defendant. Because of the invasive nature of this remedy, there are strict requirements in order to qualify for a pre-judgement garnishing order. If these requirements are not met, the order is often refused or, if granted, may be set aside upon the application of the defendant. In order to obtain a pre-judgement garnishing order, the following criteria must be present:

1: the claim must be for a debt or liquidated amount: Debt is generally the more common claim, where funds have been advanced or a party owes money pursuant to a contract. A liquidated amount usually arises where the parties have inserted language into a contract that specifies the amount of the damages in the event that one party breaks the contract.

2: the plaintiff must deduct all just discounts: The courts have held this to mean that the plaintiff must deduct the amount of any claim of the defendant which, if ultimately accepted at trial, would establish that a sum was owed from the plaintiff to the defendant. In essence the plaintiff must make allowance for all potential claims of set off, or counterclaims of the defendant.

3: the plaintiff must know the identity of someone who owes money to the defendant: This is usually a bank at which the defendant holds an account. For bank accounts you need to know the specific branch at which the account is located. You can garnish anyone who owes money to the defendant, including employers – although there is a limit to the amount of wages that you can garnish. The funds must be actually owed at the time the order is served upon the garnishee, and so to garnish anything other than a bank account, your timing will likely need to be impeccable in order to serve your garnishing order on the garnishee after the debt has become due, but before it has been paid to the defendant.

Risks:
The largest risk is usually that you will pursue pre-judgement garnishment and end up not getting enough to have made the garnishment proceedings worth it. If the defendant has no money in their bank account, or if the garnishee does not in fact owe money to the defendant, then there is nothing for the garnishing order to seize.

The second risk of pre-judgement garnishment is that the defendant can apply to have the order set aside and the funds returned. Courts have held that, due to the invasive nature of pre-judgement garnishment proceedings, there must be meticulous compliance with the procedural requirements. In particular, the affidavit of the party who seeks the garnishing order must provide all the information for the registrar to approve the order. Since the application is without notice, the applicant must make full and frank disclosure in their affidavit.

Despite the onerous requirements to obtain a pre-judgement garnishing order, this type of order can be a valuable tool in your civil collection matter. Having funds paid into court will provide you with some peace of mind knowing that if you obtain a judgement, you should at least receive the amount of the funds in court. Garnishing a debtor’s bank account also demonstrates that you are taking the matter seriously, and having funds paid into court can motivate the debtor to make a reasonable proposal to satisfy the debt.

Always Get It in Writing

If they ever existed, the days of doing business based on a handshake and a verbal agreement seem to be long gone. We regularly have clients come to our firm with disputes in which there is no written agreement. The failure to draft a written agreement often results in a complicated fact situation that has to be sorted out by our firm and another law firm. For example, we recently assisted a client who had become embroiled in a contentious partnership dispute over a small business. While we ultimately resolved the matter with a large degree of success, it would have been much simpler, and a dispute may have been avoided entirely, if the parties had formalized their arrangement in a written agreement.

 

The Gold Standard:

In terms of enforceability, the gold standard is usually a professionally drafted contract, signed by both parties, after having received independent legal advice. Depending upon the complexity of the agreement, such a contract might cost several thousand dollars to prepare; however, if the subject matter of the contract is valuable, this cost is money well spent to protect each party in the event of a dispute. If you’re starting a business partnership that you expect to last for many profitable years, spending some money up front will help protect that business, and will help avoid your hard work being swallowed up in lawyers’ fees after a dispute develops.

 

For simpler agreements, it can be surprisingly cost effective to have a contract drafted by a lawyer, and having the contract professionally drafted will provide the peace of mind that it includes all of the proper legal formalities to make it enforceable. Sadly, we often see contracts that are drafted by the parties themselves, and these can range from perfectly enforceable contracts, to ones that lack basic legal certainties necessary to make the agreement enforceable.

 

Reconsider DIY Contracts:

We generally recommend that people do not attempt to draft their own contracts, or pull contracts from the internet in the hopes that they can tailor that general contract to their specific needs. We have seen client drafted contracts for Canadian clients contain errors such as references to the United States Uniform Commercial Code – something that you almost certainly do not want in a Canadian contract.

 

Clear Communication:

A further benefit of written agreement is that good communication and clear terms help stop disputes before they start. All too often parties skirt around the difficult or contentious issues in a business relationship, hoping to avoid conflict. In reality, by not dealing with these issues up front, the potential conflict is only pushed into the future, where both parties may have spent time and money in reliance upon agreement terms that they thought existed.

 

Damage Control:

As a final last resort, it can be beneficial to clearly communicate important terms of an agreement to the other party in writing, even if that written communication takes the form of text messages or emails. Text messages and emails are admissible as evidence, and we routinely utilize such documents in court to protect our clients’ rights.

 

The difficulty is that you cannot force terms upon someone merely by sending them a message. If the other party replies with their agreement to your stated terms, that would be beneficial. If the other party disputes the terms, then at least you have identified a disagreement early on, before time and money has been expended. If the other party just ignores your message containing the terms, and does not agree or disagree, then it may be possible to argue that they went forward with the agreement, knowing that you were relying upon the terms that you set out to them. The latter situation is a far from ideal, and if the other party does not acknowledge your terms, you should follow up to clarify your agreement, sooner rather than later.

 

In conclusion, beware of people who refuse to put things into writing. If someone balks at committing your verbal agreement to a written form, there is usually a reason, and it is better to find out sooner rather than later what that reason is.

 

If you are seeking a well drafted purchase and sale contract, partnership agreement, shareholders agreement, or other contract, or if you are involved in a business dispute, we offer a free half-hour consultation to discuss your situation and legal needs. Please feel free to contact us to schedule an appointment.

 

 

 

Plan Ahead! Consider Additional Disability Coverage through ICBC

If you are involved in a motor vehicle accident and cannot work, the typical maximum rate payable by ICBC for TTD (temporary total disability) benefits is only $300 per week.  Every driver in BC has access to this coverage as a matter of law; however, the benefit amount has not been increased for over 25 years!  As I have written in an earlier entry, it is nearly impossible to make ends meet on that kind of money, especially if you are paying out of pocket for treatment costs.

Few people are aware of this, but it is possible to purchase extra disability coverage from ICBC.  Some of us here at the firm buy this extra coverage every year when renewing our vehicle insurance.  You can increase your TTD rate from the typical $300 per week up to $700 per week by purchasing Income Replacement Policy APV197.  An additional coverage of $400 per month costs $84 per year.  It’s a great value.  There is very little information online regarding this extra coverage, so we recommend that you discuss this with your broker the next time you renew your insurance.

If you are involved in a motor vehicle accident in British Columbia, contact one of our Victoria Lawyers today.

Four Paragraph Decision from the BC Supreme Court Provides Much Needed Clarification on Default Judgment Rules

The BC Supreme Court published a four-paragraph decision today that should be of some interest to the litigation bar in BC, particularly those whose practice includes creditors remedies.

Rule 3-8(2) of the Supreme Court Civil Rules allows a party to take default judgment against a party who has failed to respond to a claim by making a filing with the court registry if the claim is in a specified and ascertainable amount.   This means that if the Notice of Civil Claim specified the damages as a dollar figure, the Plaintiff can take judgment quickly and inexpensively, with no court appearances needed.  Where the damages are not specified as a dollar figure, the Plaintiff is required to make an application before a judge to assess the damages.

The court registry has in the past rejected applications for default judgment where there is a specified sum plead in the Notice of Claim, and where there are also alternative claims for general damages.  This would force the plaintiff to bring the claim to a judge for damages to be assessed.  This is a costly and inconvenient process, particularly if the Plaintiff is concerned about a dry judgment, or has limited resources to pursue collection.  Today’s decision seems to indicate that filings for default judgment will now be accepted and entered despite alternative pleadings being made.  This gives lawyers greater flexibility in drafting their claims, as they will not have to consider excluding general damages claims if the case may possibily proceed to default.

The court’s decision in Trustees of the Interior Lumbermen’s Pension Plan v. Moore, 2016 BCSC 89 is printed below:

[1]             THE COURTI am prepared to grant the order. 

[2]             I do so on the basis — and you may wish this to be transcribed, because it may be something that is of use to the profession generally — but in my view, Rule 3-8(3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 makes it clear that a party may obtain default judgment on a claim for money that is in a specific ascertainable amount. 

[3]             There is nothing in the Rules that precludes a party from doing so where the claim happens to be coupled with a claim in the alternative.

[4]             I am allowing the appeal and you may take the order.

 

 

Enforceability of Non-Compete Clauses in an Employment Contract

As an employment lawyer who represents small business as well as employees, I am often asked to advise on the contents of a written employment contract.  Many of the key provisions in an employment contract are concerned with what happens after the termination of employment.  This article deals with “restrictive covenants”, and more specifically, what are sometimes called “non-compete” clauses.

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