Settlement Conferences: Your Complete Guide

A settlement conference is a private hearing between the parties involved in a lawsuit, and a judge. At a settlement conference the judge presides over the conference, guiding settlement discussions between the two sides. As the costs of going to trial rise, settlement conferences have become an important part of civil litigation, that often allow the parties to resolve their dispute and avoid the costs and risks of a trial. Most importantly, a settlement conference is a discussion, and very little can happen at a settlement conference without consent of both parties. This means that the risk of a settlement conference is low, and the parties can focus on resolving their dispute. Discussions at a settlement conference are without prejudice, and cannot later be brought up in court if the case goes to trial.

 

Small Claims Court:

British Columbia Small Claims Court hears civil claims up to the amount of $35,000, with some exceptions. In a Small Claims case, both sides will file documents with the court called pleadings. The Claimant will file a Notice of Claim setting out their allegations, and the Defendant will file a Reply containing their response to the Plaintiff’s allegations. Once this happens, the parties will wait to receive a notice form the court registry notifying them of the date set for a settlement conference. In Small Claims Court a settlement conference is mandatory, and if you do not attend you may lose by default.

 

Supreme Court Settlement Conferences:

Cases that involve damages over $35,000, and cases specifically excluded from Small Claims Court, must be litigated in the British Columbia Supreme Court. Although settlement conferences are not mandatory in Supreme Court, it is still possible to have a settlement conference under certain circumstances.

 

Supreme Court Civil Rule 9-2 sets out when a settlement conference happens in Supreme Court. Both parties can agree to have one by filing a form, or a judge or master of the court can order that the parties attend a settlement conference. Like in Small Claims Court, the judge or master who presides over the settlement conference will help the parties to discuss settlement of their dispute. The judge or master who presides over the settlement conference will not preside over the trial unless all the parties consent.

 

What Happens at a Settlement Conference?

Each judge or master may conduct settlement conferences slightly different, but there are some common factors that you should know. Generally the judge will have read the pleadings and will know what the case is about. The parties may have a brief opportunity to set out their case, or the judge may launch right into asking questions of one or both parties regarding their case.

 

Ultimately the judge will try to start a discussion of settlement, often by asking the defendant if they are willing to make an offer to settle the case. Some judges weigh in on what they think are the merits of the case, or problems that they foresee with the case that would make it worthwhile to settle and avoid a trial. These judges may offer their opinion on the merits of the case so that the parties can make a more informed decision about whether they want to settle or go to trial. Other judges tend to focus less on the merits of the two parties’ respective cases, and more on getting a dialogue going between the parties. Either way, the goal is to see if the parties can agree on a settlement.

 

You will never have the same judge at a trial if the case ultimately goes to trial, because the settlement conference judge has heard the without prejudice discussion of the parties.

 

One thing to be prepared for is that you will likely be asked to compromise on your position. In our experience, settlement conferences are a pragmatic affair, where parties are discouraged from making a stand based on principals. Litigation to trial is expensive, in terms of costs if you have a lawyer, or in terms of time if you represent yourself. Going to trial is almost always a risky situation, despite how strong your case may be. There is always the possibility that the other side succeeds in convincing the judge. Parties are expected to take into account these costs and risks when discussing settlement, and usually judges will expect there to be movement on both sides.

 

You are perfectly entitled to stand on principal and refuse to compromise on your position at a settlement conference, but you should be prepared to defend that position if questioned on why you will not compromise. If you take this position, it’s probably more likely that your case will go to trial, because if you’ve ended up having to file a lawsuit, the other side is unlikely to suddenly change their tune and completely accede to your position.

 

In Small Claims, if the parties cannot reach an agreement, the judge often switches over to making administrative orders about the future trial and what must happen before trial. Usually these orders will include an order that the parties exchange document disclosure a certain number of days before trial. The judge may also ask you how many witnesses you intend to have testify at the trial. The judge will determine how much time is needed for the trial, which is very important. You should be prepared for these questions in case the trial does not settle, so that you can deal with any administrative matters while you are before the judge, and get clear orders about how to prepare for trial.

 

Why are Settlement Conferences Useful?

 

A surprising number of cases settle at the settlement conference or shortly thereafter. Having both parties in the same room, before an experienced and impartial individual, is an excellent opportunity to resolve the case. Things can move much more quickly when compared with sending written settlement offers back and forth. Perhaps most importantly, a settlement conference gives you a sneak peek at how the other side will appear at trial. You may hear about their case and learn why they think they will win at trial. This can be especially helpful if the other side’s pleadings are less than clear in setting out their position.

 

At a minimum, even if the case does not resolve, you will likely walk away from the settlement conference with a better idea of the other side’s case, which will enable you to better prepare for trial. You will likely know how they articulate their case in their own words, how well they present themselves before a judge, what witnesses they intend to call, and how much time they think the trial will take. All of this information will help you avoid being surprised at the trial, and will give valuable insight into how you should plan your own case to overcome the position of the other side.

 

Strong Negotiating Skills

Settlement conferences come down to negotiation. You will have a certain amount of leverage going into a settlement conference, depending upon how strong your case is. What you do with that leverage is up to you. Generally your goal is to maximize the amount that you recover, and to do this you need to highlight the strength of your case to the judge and the other side, increasing your leverage, and hopefully getting a better settlement offer out of the opposing party. At Velletta & Company we pride ourselves on being strong litigators, who understand both the benefits of negotiating a fair resolution, and the strategic value that can be taken away from a negotiation, even if you cannot reach an agreement. If you are facing an upcoming settlement conference, please feel free to contact us for a consultation.

 

Recent Court of Appeal Ruling on Uninsured Motorist Benefits

Earlier this month, the Court of Appeal released its decision in Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 .  In that case, the court considered the availability of uninsured motorist benefits pursuant to section 20 of the Insurance (Vehicle) Act.

In British Columbia, all motorists are required to carry at least a minimum amount of third party liability insurance.  This means that when someone is injured as a result of a negligently operated motor vehicle, the injured party can almost always count on a pool of funding to be available from which they may recover an award of damages.  Section 20 of the Insurance (Vehicle) Act essentially acts as a failsafe in our mandatory insurance regime – for those rare cases where the motorist is uninsured, the injured party may make a claim for Section 20 benefits to fill in the gap where recovery from the negligent motorist is not possible.  However, as this case shows, Section 20 benefits have their own limitations to be aware of.

Section 91 of the Insurance (Vehicle) Act limits recovery in certain cases:

Limitation on recovery in relation to stolen vehicles

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.

(2) Despite the Negligence Act and section 100 of this Act,

(b) a person referred to in subsection (1) is not entitled to any recovery from the corporation under section 20.

Essentially, an injured party is barred from making a section 20 claim if they were a passenger in a vehicle that they knew, or ought to have known was being operated without the owner’s consent.  In this case, ICBC was successful in arguing that the plaintiff was not entitled to section 20 benefits.  At the time of the accident, she was 17 years old, and was a passenger in a vehicle driven by a 15-year-old.  At trial, the judge found that because of the plaintiff’s young age, she couldn’t have turned her mind to whether or not the vehicle was driven without consent, and therefore she was not barred from recovering pursuant to section 20.

The Court of Appeal disagreed, and found that a reasonable person in the plaintiff’s circumstances ought to have known that the vehicle was driven without consent.

This is an important case, as it clarifies the test to be followed when considering the section 91 exception.  The court is to follow an objective approach, considering what a reasonable person in the plaintiff’s circumstances ought to know, as a opposed to the subjective approach employed by the trial judge.

Employment Law Part 2-NEW VIDEO!

 

Hi, my name is Eric Pedersen I’m a lawyer for Velletta and Company practicing employment law. Today we’re going to talk about another employment law topic which is constructive dismissal. Now the constructive dismissal is really just a fancy way to say, “I quit” to your employer to also at the same time exercise and enforce all of the rights that you would have if you were an employee who was fired without cause.

The general rule of thumb in British Columbia is that an employee who quits their position isn’t going to be entitled to any severance pay or any notice they’re walking away from the job and that’s on them. But constructive dismissal is a very specific category in the law that allows an employee who quits to bring a claim against the employer for severance. The idea is that although the employer hasn’t fired the employee they have by their conduct in the way that they might have changed the employee’s workplace duties changed their employment. Such to the point that they’ve pretty much been fired and have all of the rights of a fired employee.

Not every minor change that an employer might make to an employee’s employment contractor to their workplace will result in an employee having the rights of a constructively dismissed employee. A really obvious example would be if you were a CEO one day and then you showed up the next day you were demoted to janitor. Well you haven’t been fired but you have pretty much been fired.

So you have all of this same rights to claim for severance as an employee who was fired but not all cases are black and white. And there’s a lot of grey area. It’s important that you do consult a lawyer before exercising the option of constructive dismissal.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company’s civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal. His practice is focussed primarily on the following areas: Personal injury and motor vehicle claims, Employment and Human Rights Law, Commercial litigation, Real estate litigation, General insurance litigation, Disability insurance litigation and General civil litigation.

Travel Insurance 101

Many people are careful and buy travel insurance before they leave Canada to protect themselves in case they have a medical emergency while traveling. After all, some countries, like the United States, have expensive medical systems that can cost travelers tens of thousands for even the simplest treatments. Smart travelers seek to avoid this risk through travel insurance; however, few of these travelers actually read the densely worded insurance policies that apply to this type of insurance. If they did, they might be shocked to learn how many exclusion clauses these policies contain.

 

Exclusion clauses are terms in the insurance policy that specifically exclude coverage for certain things. These clauses give the insurance company an opportunity to deny your insurance claim. You might go on vacation and end up fighting for your life in the face of a medical emergency, only to make it back to Canada and end up in another battle, this time with the insurance company. If the insurance company denies your claim and you disagree with their decision, you can try to change their mind, but ultimately you may have to take them to court and sue them for coverage under your insurance policy.

 

In a recently reported court decision, our firm successfully challenged an insurance company’s decision to deny a claim. Our client was faced with a cripplingly large medical bill for a quadruple bypass surgery in the United States. The insurance company refused to cover our client’s expenses, saying that our client had left on vacation while having a reasonable expectation that he could require medical treatment while traveling.

 

After a hard fought trial in British Columbia Supreme Court, the Court agreed with our argument that our client had taken reasonable steps in the circumstances, and did not have a reasonable expectation of needing medical care while on vacation. The Court ordered that the insurance company indemnify our client for his medical expenses, and pay legal costs.

 

This case is not unique, because many travel insurance claims are denied based on exclusion clauses. The exact structure of these exclusions varies from policy to policy depending on the wording, but the general result is that if you travel with a pre-existing medical condition, or take a trip knowing that you might require treatment, you can end up in a dispute with the insurance company if your condition deteriorates and you need medical treatment while abroad.

 

A cautious traveller, and in particular anyone with known health challenges, would be wise to take the following steps prior to travelling:

  1. Read your insurance policy and make note of exclusion clauses. What are they for? Do they seem like something that would apply to you?
  2. If in doubt, ask your insurance broker, or the insurer directly whether you are covered in your specific circumstances. Make notes of the conversation, who you spoke to, and the information they gave in case a dispute develops later.
  3. Talk to your doctor if you have specific health problems or concerns that might arise while traveling.
  4. If in doubt, consider postponing your vacation until your health improves. This is a frustrating last resort, but inevitably less frustrating than becoming involved in a costly legal battle if you need medical treatment while traveling and your claim is denied.

 

No one sets out on a trip expecting to have a medical emergency. The careful traveller buys travel insurance in case the worst happens and a trip is ruined by just such an emergency, but coverage is never absolute and if your claim is denied the financial consequences can be devastating. Being careful, reading the policy, and seeking more information if necessary, can help you avoid a situation where the insurance company denies your claim for medical expenses incurred while traveling.

 

If you take all these steps and the insurance company still denies your claim, then you may need to take the insurance company to court to get coverage for your expenses. Velletta & Company is experienced in dealing with insurance companies through both negotiation and, if necessary, litigation. We regularly deal with insurance companies including on cases involving motor vehicle accidents, life insurance, home insurance, and travel insurance. If you are facing a dispute with an insurance company, we would be happy to meet with you and discuss your unique needs.

 

Cadeyrn 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.

Employment Law | Wrongful Dismissal

Our professional Eric Pedersen is well-versed in employment law. In this video, Eric covered the topic of wrongful dismissal and what to do if you think you have been wrongfully dismissed at your place of work.

 

 

Hi my name, is Eric Pedersen and I’m a lawyer practicing employment law at Velletta & Company. Today I’m going to talk to you about one topic in employment law which is wrongful dismissal. There are a lot of misconceptions about what a wrongful dismissal is and the way to think about it is a wrongful dismissal is a firing or a termination where the employer fails to get the proper amount of notice. Or severance.

The reality is that employer is permitted in British Columbia to fire anybody at any time. For almost any reason as long as they give them the proper amount of severance pay or notice. There is one major footnote to that which is B.C Human Rights Code. There are 13 protected grounds in the human rights code that you can’t base a dismissal on. Those are things like age, gender, gender expression, race, religion and country of origin and so on.

But back to the reasons for dismissal: it doesn’t actually matter. It doesn’t really factor into any court’s decision (unless the employer is alleging that they have cause to fire you), why the employer might have terminated you. They are allowed to terminate you for the dumbest reasons at all! It may be that you remind them of their fourth-grade school teacher or you just rub them the wrong way or you’re not a good fit. What matters is that you’re given the proper amount of severance pay. Severance pay or pay in lieu of notice. We’re going to be talking in a bit in another video as to what the proper amount of severance that an employee can expect termination is. All terminations are a difficult process. And it’s often important to know your rights before signing off on the release or if your employer before terminating an employee for any reason. Always get legal advice.

Scope of Work in Construction Litigation

The scope of work in a construction contract lays out what work is going to be completed by the contractor. This is a fundamental and important aspect of the agreement, that needs to be carefully set out to avoid disputes and ensure that the contractor is fairly paid, but not overpaid, for the work that they perform. Large scale construction contracts have detailed processes to clearly define the scope of work and deal with any changes that come up once work has started. Homeowners and contractors who deal with smaller projects often do not have the same level of detail regarding the scope of work, and unfortunately, this is a common area of dispute where the relationship breaks down between a contractor and homeowner. If the scope of work is not defined, the homeowner may dispute the bill thinking that they have been overcharged or the contractor has under delivered on what was required. While it is not always possible to implement the extensive procedures that are used on large projects, homeowners can benefit from knowing how large projects are conducted, and where possible applying these principles to the relationship with their contractor. Likewise, contractors can benefit from having clear quotes that precisely detail their scope of work so that the customer is less likely to dispute the contractor’s bill, and if a bill dispute develops the contractor has a better case in the event that matters go to court.

 

Setting out the Initial Scope of Work

The initial scope of work will be the basis on which the contractor makes their initial estimate or if they are offering an all-inclusive price, their quote for the job. The initial scope of work must be ascertained in order for the contractor to accurately estimate or quote the job. For large projects, the scope of work will likely be determined by a full set of plans and may include detailed specifications for the materials and construction techniques that the contractor must utilize. For homeowners, this is often not feasible; however, the more detail that can be communicated to the contractor in determining their estimate or quote, the better the chance that everyone is on the same page and the project will run smoothly, resulting in a satisfied client and a contractor who received the payment that they expected.

 

Ideally, a homeowner will have a set of plans on which the contractor is asked to offer an estimate or quote before the parties enter into a written agreement that includes details like payment terms and completion dates. If this is not possible, the homeowner may be wise to sit down with the contractor and go over the design of what they want to be built, and the materials that they want the contractor to use. For a homeowner who is not experienced with construction, the contractor may be able to offer advice and assistance in selecting materials and designing the improvement. At a minimum, both parties benefit by making sure that there is a written description of what will be constructed, the materials that will be used, and the cost.

 

Putting time and energy into defining the scope of work at the outset of the project may be difficult for the impatient, who want to get the project underway, but a clearly defined scope of work helps give both sides a better idea of the costs involved in the project and helps to avoid costly disputes. For both the homeowner and the contractor, having a clear understanding of the project is vital. The homeowner must understand exactly what they are getting, and how much they will need to pay. The contractor must understand exactly what is expected of them, and a clearly defined scope of work allows the contractor to show that they have completed the project and deserve payment.

 

Changes to the Scope of Work

In any project, whether it is a large residential development or a small residential renovation, there are often changes to the scope of work that take place over the course of the project. In a large project a municipality might require changes in order to issue approval, or a problem, such as inconveniently located bedrock, might become apparent that needs to be overcome in order to continue with construction. On a smaller project, gutting some walls might reveal shoddy work from a previous renovation, or water ingress or mould that should be remedied while the wall is open. In all of these hypotheticals, if the contractor did not include this work in their original quote and scope of work, then a change to the scope of work becomes necessary.

 

When there is a change to the scope of work, it can be problematic, because the work is already underway and suddenly there is the need to deal with the uncertainty created by the change in scope. The contractor will want to ensure that they are fairly paid for the additional work required by the change in scope. The owner or client will want to ensure that the contractor does not take advantage of the situation and bill an overly large amount for the additional work. It may be a delicate situation for both parties. The homeowner might feel like they are held hostage because their house is hallway ripped apart and they don’t want to get into a dispute with their contractor and delay the completion of their home. The contractor may have invested time and money into the project and might fear that getting into a dispute over a change to the scope of work will prevent or delay payment for the work already completed.

 

In large construction contracts, there is generally an independent consultant who acts as an intermediary when changes to the scope of work are needed. When the need for a change becomes apparent, a formal written change order will be issued to the contractor, the contractor will formally quote the change, and provide the quote to the consultant, who determines whether the quote is reasonable and in theory protects the interests of both parties. There may even be provisions for arbitration if one party does not agree with the consultant’s decision on a large change order.

 

For homeowners, it is cost prohibitive to have an independent consultant, and the pace of change on a residential project can be rapid, especially if the project is a residential renovation where things might be uncovered during the initial demolition phase. While there is no independent consultant on a smaller project, the parties themselves can still help avoid problems by clearly communicating. If the homeowner wants a change, that should be clearly specified and described. If the contractor thinks they are being asked to do something that was not included in the original scope of work, then they should deal with that issue immediately instead of putting it off until the final bill. Where both parties agree that something is an addition to the scope of work, the contractor should prepare a written quote for that addition – this is fair to both parties, the contractor is entitled to be paid for the extra work, and the homeowner is entitled to know what their requested change is going to cost.

 

While ultimately homeowners and residential contractors cannot implement the extensive procedures that are used on larger jobs, the same principles apply. The scope of work has to be clearly defined at the outset, for the benefit of both parties. Changes to the scope of work need to be clearly defined, and ideally agreed upon in writing through a written change order that defines the addition to the scope of work, and the compensation payable for completing that addition. Following these strategies should help both homeowners and contractors avoid disputes regarding the scope of work on a project. If the worst happens, and such a dispute does arise, it may be time to consult with construction litigation counsel. Velletta & Company is pleased to assist clients facing a construction litigation dispute, whether they are homeowners or contractors.

 

Cadeyrn 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.Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Contact Cadeyrn Christie

The Best Separation Agreement: more about Process than Product

As family, separation, and divorce lawyers, working with clients on the breakdown of a relationship is what we do. This is one of the biggest events in most people’s life; right up there with death and taxes.

 

The process part is surprisingly the most essential to all of this. No matter how luring it may be to think that you can just download a fill in the blank agreement, you can’t. Just like organic food, it’s not the apple that is organic but the entire process: it is the seed, soil, nutrients, harvest, handling and delivery that has it travel to your plate.

 

Likewise, a Separation Agreement is not just words and paper or an electronic product that puts the appropriate checks in the boxes. Here we will go over the nuts and bolts considerations but also give an explanation of the process that will set you up for an independent future.

 

NUTS AND BOLTS

Separation Agreements are similar to all agreements between two people in an intimate relationship, be it marriage, cohabitation or even wills. However, they are far different than all other contracts you might enter into. Here is what is typically required:

 

  • The agreement must be in writing
  • The agreement must identify the parties and their rights and obligations
  • The agreement must be lawful. This means that it cannot provide rights or oblige another to do something against the law and may at times have to conform with various legislation. For instance, you cannot skip child support if there is a child of the relationship.
  • Each party to the agreement must have the ability to enter into the agreement and do so freely. Most of the time they must be an adult but a child who is a parent or a spouse may also enter into a binding agreement.
  • Each party must sign the agreement in front of a witness
  • Each party must make full financial disclosure.

 

THE PROCESS EXPLAINED

All professionals who deal with family breakdown, separation, divorce and matrimonial discord understand that there are complex realities and personal circumstances behind every relationship coming to an end. This is where the process comes into play.  The process is often the part that is put under a microscope when looking backward to see if it was fair. Unless you fairly negotiated, shared information, had proper understanding on your side and can demonstrate that those items took place; you may be in trouble.

 

Now the reason that people have a contract or Separation Agreement is to ensure that their agreement is enforceable, fair and valid. Alternatives to a formal Separation Agreement include minutes of settlement, consent orders or orders after trial are almost always more costly than a Separation Agreement which will cost an average of $2,500 to $10,000.

 

Compare that to going to court to resolve family issues or having a bad agreement set aside and you will each be looking at $5,000 to over $100,000 in legal fees.

 

Essentially, a Separation Agreement and its terms should become intertwined with your respective lives and, if done correctly, neither party will need to change it. In appropriate circumstances, a review clause can be incorporated in various topic areas. This sounds tough, right? We all change, seemingly all the time. So how does one agreement accommodate all those changes?

 

This is where we will work with you to ensure that you understand what is in a Separation Agreement. You will know specifically what is meant by each term and what rights and obligations are being provided to you. Equally and often overlooked at first are the rights and obligations that you may be giving away with the Separation Agreement and without careful planning, they may be lost forever. This is an essential point, since, unless you have contemplated a particular possibility, other lawyers could and will argue that it was not considered and so should be a reason to set the agreement aside.

 

The typical reasons a court will set aside a Separation Agreement are:

– Lack of full, complete and honest financial disclosure it is really not adequate to simply state you know or are aware of the other’s finances. Evidence, usually a sworn financial statement, will need to be demonstrated otherwise the agreement may easily be set aside, and this is even more clear now that the Family Law Act makes full disclosure a law at section 5.

– Duress, coercion, and unconscionability these can be interpreted in a variety of ways but you have to remember that the court understands that parties potentially have emotions and other factors that can amount to unfair force being exerted against a person who enters a contract. One example would include someone not having sufficient time to consider the agreement because some event was imminent, such a factor has on many occasions led to agreements being set aside.

– Failure to obtain independent legal advice people are often surprised at this but given the many necessary considerations even well intention and amicable separating parties may be faced with an agreement being thrown out because one or both of the parties did not consult a lawyer and as such were not aware of what rights and obligations they were losing by entering into a Separation Agreement.

 

As a lawyer who focuses on the diverse needs of family members at a specific point in their lives, I feel privileged to add value and understanding at this difficult time. We are often able to add significant value to these discussions and typically this can come in actual savings of taxes, and legal fees. We are confident in employing our services and aim to do this in a way that brings you the most timely and cost-effective results. In family matters, we often employ various techniques which include a multitude of dispute resolution mechanisms and always employ a strategy to advocate for you.

 

 

Michael_JakemanMichael has an undergraduate degree, a bachelor of science, from the University of Alberta and a professional degree in law, a juris doctor, from the University of Victoria. Michael serves individuals like you and has been protecting individuals rights since his call to both the bar association of British Columbia and Alberta in 2006. Michael believes clients are central to our profession and has served the legal profession in this pursuit through consulting work with both the Canadian Bar Association of British Columbia and the Faculty of Law at the University of Victoria. Learn More about Mr. Jakeman

 

 

Calculating Reasonable Notice – Breaks in Service

Non-unionized employees in British Columbia who are terminated by the employer without cause are entitled to reasonable notice of the termination.  Reasonable notice can be given as pay in lieu of notice, as working notice, or as a combination of both.

These employees are entitled to statutory pay or working notice pursuant to the Employment Standards Act, and unless they are bound by an employment agreement that says otherwise, they may also be entitled to additional “common law” reasonable notice that is enforceable by the courts.

An employee’s reasonable notice period is usually calculated in weeks or months.  In calculating an employee’s entitlement to reasonable notice, the courts will consider the length of service of the employee, their age, and their ability to find other work.  The employee’s length of service tends to be a highly determinative factor, but in some cases, disputes may arise as to how the employee’s length of service is to be calculated.  It is typical of many long service employment relationships that there will be breaks in the employee’s service.  Typically, an employee will want their entire employment history counted when determining the length of service, while the employer is interested in minimizing their severance obligations.

In some cases, the court will ignore a break in service when calculating reasonable notice.  To make such a determination, the court will consider the length of the break relative to the length of service, the conduct of the employer in respect of the break (i.e., was the employee temporarily forced out of employment by the employer), as well as any evidence that shows that the employer intended to treat the employee’s service as continuous.  Typically, if the employee willingly leaves their job for another and is away for a considerable time before returning, the employment will not be considered as continuous.

If you are a long-serving employee who has been terminated from your employment, it is crucial that you seek legal advice.  An employer seeking to terminate a long serving employee should also be cautious as issues such these, as the amounts at stake as pay in lieu of notice could be substantial.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company’s civil litigation department. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal

Raising Capital: Strategies for Success

If your business has reached the stage where you need to raise investment capital to grow and develop, being well prepared and adopting key strategies for success will greatly increase your chances.

Consult Your Team: If you are at the stage of raising capital to fund the development of your business, you will likely have in place a team of professionals. It makes sense to consult with them and tap into their creativity and experience. This is a good launching point.

 

How Much: The more junior and less developed your business is, the more expensive in terms of rates or dilution it will be to obtain investment capital. Carefully consider how much of this expensive investment capital you need in the first stages. As your business develops and grows you will be able to raise capital at lower rates and with less dilution.

 

Be Prepared: Potential investors are usually savvy business people. They will quickly form an opinion to invest, or not to invest based on first impressions. How do you make a good first impression?

 

  1. Have at least a basic business plan, explaining where you want to take your business, how much capital you need, how that capital will be deployed and other basic information. It needs to look professional.
  2. Make sure you have pro forma financial statements demonstrating how the potential investor will benefit from their investment.
  3. Put together a physical binder, or digital data room of key documents concerning your business. Make it easy for the potential investor to perform due diligence on your business.
  4. Have a term sheet setting out all the terms and conditions of participation in your capital raise.
  5. One of the first places a potential investor will look is at your website. Make sure you have one, and that it is tasteful and represents your brand. A good website is a simple way to look established, successful and that you are going places. Even something very simple is better than nothing at all.
  6. Know your stuff. You should be well prepared to answer questions about your product or business. You will need to know the financial numbers and be able to explain how the investor will see a good financial return on their participation in your business. Be fully prepared to explain the form of the investment, how it works and the exact terms.

 

Intellectual Property: If your business or product is unique or innovative make sure you protect your intellectual property. At the very least you will want potential investors to sign a nondisclosure agreement.

Adopting these key strategies will help you make that critical positive first impression and be a launching pad for success.

 

Michael Velletta, Victoria BC lawyerMichael J. Velletta is a senior lawyer with decades of experience, sitting on the boards of a number of publicly traded companies in Canada, Europe, and Australia.

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!

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