Davison Law Group https://dlg-law.ca Corporate And Litigation Law Firm | Vancouver, BC Sun, 31 May 2020 14:28:35 +0000 en-CA hourly 1 https://wordpress.org/?v=5.4.2 https://secureservercdn.net/50.62.198.97/y3e.98b.myftpupload.com/wp-content/uploads/2020/05/davison-favicon-100x99.png Davison Law Group https://dlg-law.ca 32 32 Powers of Attorney 101 https://dlg-law.ca/power-of-attorney/ Fri, 24 Apr 2020 12:00:39 +0000 https://dlg-law.ca/?p=4294 Read More]]> Considering the COVID-19 outbreak in BC, it is important to be prepared to legally deal with all the possible consequences of contracting this illness. This blog post will introduce you to the power of attorney; a legal tool you may use in situations where you might want or need another individual to make important financial and legal decisions on your behalf. For example, if an illness such as COVID-19 or an injury makes it difficult for you to handle your financial or legal affairs, such as paying your bills or banking, this legal instrument can help you.

What is a power of attorney?

Power of attorney is a legal document you can use to appoint a person of your choosing to make financial and legal decisions on your behalf. This person is called your “attorney”. You must be at least 19 years old and mentally capable to be able to appoint an attorney.

A power of attorney can be general or enduring. A general power of attorney comes to an end when you become mentally incapable. However, an enduring power of attorney continues even if you become mentally incapable. Importantly, both the general and enduring power of attorney come to an end when you die. If you choose to have an enduring power of attorney, your agreement must specify whether that the power of attorney is in effect while you are capable as well as in the event of your incapacity, or whether it only comes into effect upon the occurrence of a specified event of incapacity.

The breadth of your attorney’s powers and authority depends on you and your needs. You can limit or expand the scope of the power of your attorney by using various clauses in the document that clarify what your attorney can and cannot do. For example, you can give your adult children a limited power of attorney and allow them to only deal with your banking matters, or you can grant them a general authority to make decisions in relation to all your financial affairs. When making decisions on your behalf, your attorney must act in your best interest while taking your wishes into consideration.

Who can be your attorney?

Your attorney should be someone you trust. Your attorney will be able to make important life decisions on your behalf and as such you need to have trust in their judgment. The person you choose as your attorney must accept the position, be at least 19 years old, and mentally competent. Mental competency is defined as understanding the purpose and possible outcomes of the power of attorney agreement at the time of signing.

You can name more than one person to be your attorney. If you choose to have more than one attorney, you need to clarify in your power of attorney document whether you want them to make decisions together or they are permitted to act independently. Additionally, you can name one or more alternate attorneys who may take over if your first attorney becomes unable or unwilling to act.

You can revoke the power of attorney with a written notice or by including an end date or a precipitating event in the power of attorney agreement. To be able to revoke the power of attorney you must be mentally capable and understand the nature and consequences of your revocation.

Are there any signing and witnessing requirements for a power of attorney to take affect?

You must sign the power of attorney agreement in front of one witness if they are a BC lawyer or notary public. Otherwise you need two adult witnesses to sign the document in front of you and each other. Your chosen attorney must also sign the agreement in front of one adult witness if they are a BC lawyer or a BC notary public. Otherwise your attorney needs two adult witnesses as well. Please keep in mind that if your power of attorney agreement is granting your attorney real estate related powers (i.e. buying and selling property on your behalf), signing of the power of attorney must be witnessed by a lawyer or a notary.

The following individuals cannot act as a witness to the signing of an enduring power of attorney:

  • a person named in the enduring power of attorney as an attorney;
  • a spouse, child or parent of a person named in the enduring power of attorney as an attorney;
  • an employee or agent of a person named in the enduring power of attorney as an attorney;
  • a person who is not an adult;
  • a person who does not understand the language used in the power of attorney document.

Does your attorney have any statutory duties and obligations towards you?

Section 19 of the Power of the Attorney Act [RSBC 1996] CHAPTER 370, sets out the duties of an attorney under an enduring power of attorney agreement. These duties include the following:

  • duty to act honestly and in good faith;
  • exercise the care, diligence and skill of a reasonably prudent person;
  • act within the authority given in the power of attorney;
  • keep records for inspection and copying;
  • act in your best interest, while taking into account your wishes, known beliefs and values, and any directions to the attorney set out in the power of attorney;
  • give priority when managing your financial affairs to meet your personal care and health care needs;
  • invest your property only under the Trustee Act, unless otherwise stated;
  • foster your independence and encourage your involvement in any decision making that affects your affairs;
  • not dispose of any property that the attorney knows is specifically gifted in your will, unless it is necessary to comply with their duties; and
  • keep your assets separate from their own assets.

If you think you need a power of attorney, we are here to help you. Our lawyers have the knowledge and skill necessary to draft a power of attorney that meets your needs.

Disclaimer

This website/blog by Davison Law Group is strictly for educational purposes and does not provide specific legal advice.  This website/blog should not be used as a substitute for legal advice.  For legal advice relevant to your particular circumstances, consult a licensed lawyer in your province. Use of this website/blog does not create a solicitor/client relationship between you and Davison Law Group, or any of its lawyers. The accuracy of information provided on or linked to through this website/blog may change over time. Neither Davison Law Group, nor any of its lawyers, is liable for any losses or damages due to reliance on the content of this website/blog. Unless otherwise specifically stated, all materials published on this website/blog are protected by copyright and owned by the author.  Unauthorized reproduction is prohibited.  Please contact the author to inquire about authorized reproduction.

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Termination & Leaves from Employment during COVID19 https://dlg-law.ca/termination-employment-covid19/ Mon, 20 Apr 2020 09:00:32 +0000 https://dlg-law.ca/?p=4287 Read More]]> With COVID19 forcing many businesses to close and others to see a serious drop in revenue, many companies are having to face the difficult consideration of laying off staff to decrease their payroll expenses.  While most of the standard laws about termination of employees apply, there are some new or coronavirus-specific laws in place to consider.

Termination of Employees

An employer may wish to let an employee go “for cause” – “for cause” termination being a specific and stringent category of termination that we discussed in a previous blog post and includes termination for things like repeated dishonesty and insubordination after multiple warnings or serious infractions such as theft.

In the case of COVID19, however, most terminations employers will be considering will be without cause due to a work shortage, closure, or desire to cut back on expenses.  In such cases, employers are required to give notice to the employee or payment in lieu of notice, typically called severance.  The amount of notice or severance an employee is entitled to depends on three things: the legislation, the terms of a contract of employment, and common law requirements.

  1. The B.C. Employment Standards Act (the “ESA”) provides that employers must give a certain amount of notice depending on how long the employee has been working for the employer. This goes up to a maximum of 8 weeks’ wages.  (see ESA, s.63).
  2. A written employment contract may provide that the employee is entitled to only the notice that the ESA requires or more (but not less).
  3. The common law (case law) provides that employees – barring a valid employee contract to the contrary – are entitled to more notice that that in the ESA based on a calculation of factors including the employee’s age, position, and length of service. Each situation must be assessed on its own factors (and it is best to have a lawyer advise on this), but in some cases this can be a substantial amount of notice or severance owing to the departing employee.

(A brief disclaimer: while the above is generally true, there are exceptions and different rules in some circumstances, including terminations due to layoffs of 50 or more employees in a short time, unionized employees, and employees with fixed term contracts.  Ideally, an employer should seek legal advice before terminating any employee. This is an area that we deal with frequently. You can contact us for assistance.)

A possible exception in the ESA

The ESA does have a section in it that provides for an exception to the notice/severance requirements under the ESA; that section reads:

“Sections 63 and 64 do not apply to an employee …employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act” (ESA s.65(1)(d))

Normally, this section applies to things like a fire or flood at the place of business, but the Employment Standards Branch has added new policy language saying that it “may” apply to terminations due to COVID19.  As the Employment Standards Branch used the word “may” it is not certain that it applies and because of the newness of the COVID19 pandemic, there is no prior law on a situation precisely like this.  That being said, this exception may be able to be used by employers terminating employees for the sole reason of a government-ordered work closure (and not merely a downturn in business) due to COVID19, however the employer would have to exhaust all possible alternatives, such as having the employee work remotely or similar work arrangements.  This exception should be relied on with caution and with specific legal advice, which we can provide.

Temporary Layoffs

Prior to March 2020 there was no ability for an employer to temporarily lay off an employee without triggering a termination unless:

  1. the contract with the employee expressly provided for that option;
  2. there is a well-known industry practice of layoffs; or
  3. the employee agrees to a temporary layoff.

In March 2020, an amendment was passed to the ESA (section 52.12) to allow for a temporary, unpaid leave for employees due to COVID19.  It is important to note though that this section allows for a temporary leave, in the circumstances listed below where the employee requests it.  While this section may be beneficial for employers as well, it requires the employee request the leave.

The section provides that if an employee requests a temporary leave due to COVID19 they are entitled to such (unpaid) leave if any of the following applies:

  1. they have been diagnosed with COVID19 and are acting according to medical or health advice of a category of professional listed in section 52.12(2)(a) of the ESA;
  2. the employee is in quarantine or self-isolation per the Quarantine Act (Canada) or the order or guidelines of the health organizations listed in section 52.12(2)(b) of the ESA;
  3. the employer has directed the employee not to work due to concern about the employee’s exposure to others;
  4. the employee is providing care to their child or to an adult under their care due to a disability or similar reason;
  5. the employee cannot return to B.C. due to COVID19 travel or border restrictions; or
  6. a prescribed situation exists relating to the employee.

(see the ESA s.52.12 for the complete section and language)

The unpaid leave stays in place for as long as the above criteria is satisfied (s.52.12(3)).

An employer cannot demand a doctor’s note (s.52.12(5)), but the employer can request proof that any of the above criteria are satisfied and the employee must provide same as soon as they are able (s.52.12(4)).

The above section is retroactive to 27 January 2020.

If you are unsure how to navigate this new section of the ESA or how it relates to your specific circumstances, you can contact our lawyers who would be happy to help.

Changing Circumstances

As the COVID19 situation is changing on a daily basis, employers considering their options for terminations or layoffs of employees should seek legal advice and consult the most up to date information from government sources.  Our lawyers are staying abreast of these changing laws and stand by ready to advise you on your unique circumstances.  You can contact us to set up a consultation.

Disclaimer

This website/blog by Davison Law Group is strictly for educational purposes and does not provide specific legal advice.  This website/blog should not be used as a substitute for legal advice.  For legal advice relevant to your particular circumstances, consult a licensed lawyer in your province. Use of this website/blog does not create a solicitor/client relationship between you and Davison Law Group, or any of its lawyers. The accuracy of information provided on or linked to through this website/blog may change over time. Neither Davison Law Group, nor any of its lawyers, is liable for any losses or damages due to reliance on the content of this website/blog. Unless otherwise specifically stated, all materials published on this website/blog are protected by copyright and owned by the author.  Unauthorized reproduction is prohibited.  Please contact the author to inquire about authorized reproduction.

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Force Majeure & Frustration: How COVID-19 may affect contracts https://dlg-law.ca/force-majeure-frustration/ Thu, 09 Apr 2020 00:37:38 +0000 https://dlg-law.ca/?p=4276 Read More]]> Since the COVID-19 outbreak was declared a pandemic in May 2020 and the virus’ effects have spread through British Columbia, the effects of closures, layoffs, and cancelations are being felt by businesses who need to know what their obligations are. Perhaps you hired a company to renovate your office, or you hired a catering company to provide appetizers at an engagement party in two weeks. At the time of writing, social distancing is being enforced and gatherings are banned, so what are your rights and obligations?

There are two doctrines that may arise in situations such as these:

  1. force majeure; and
  2.  frustration.

Force Majeure

Force majeure is a clause that may be included in contracts. It is, effectively, the ‘acts of god’ clause that will excuse or delay performance of all or part of the contract by one or both parties in the event of some unforeseeable event. Some contracts will have a long list of such events – floods, war, general strikes, et cetera. Some of them may use less specific language such as ‘unforeseeable events beyond the parties’ control’. Whether or not COVID-19 is included would depend on the language of the clause. Words like disease, pandemic, or biological epidemic would probably include it. “Acts of God” itself has not received a lot of treatment by the courts to determine exactly what is and is not included, but the Supreme Court of Canada has loosely described it as “a supervening, sometimes supernatural, event, beyond control of either party, [that] makes performance impossible.”[1]

So, subject to the exact language of each clause, the idea is that it must be something unforeseeable and out of the control of the parties that makes performance of the contract impossible. For many contracts, COVID-19 would likely meet the criteria – unless the contract was entered into after the pandemic was announced, after such time it may be arguable that the parties entered into the contract knowing of the threat and therefor it may not be an unforeseeable ‘act of god’.

In the case of some contracts, a force majeure clause may allow for performance of the contract to be delayed (perhaps in the above example of the office renovations); for others (like the above example of the catered party), the contract may be void. Some force majeure clauses will contain requirements for one or both parties to take action or give notice for the clause to apply. Again, the language of the contract will dictate the specific terms.

It is important to note that force majeure clauses cannot be implied into contracts; they must be expressly written in.[2] Where there is no force majeure clause, the doctrine of frustration may apply.

Frustration

Unlike force majeure, frustration is not something that must be included in the contract for it to apply. Frustration applies through the common law, where the circumstances dictate. As stated by the Supreme Court of Canada, relying on earlier jurisprudence: “Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes “a thing radically different from that which was undertaken by the contract””[3] In other words, where the parties entered into the contract and, through no fault their own, an unforeseeable event occurs and as a result the core of the contract is fundamentally altered and can no longer be performed as planned, the contract is frustrated. In such cases, the contract will be void.[4]

If the contract included a clause addressing what to do in the event of a global pandemic, then in our current situation, frustration would likely not apply as the issue was dealt with in the contract. If a person contracted to buy a house and COVID-19 causes an economic downturn that made buying the house no longer financially viable for the buyer, frustration would likely not apply as the core of the contract (the sale of the house) is not altered. In the case of the office renovation, the contract would likely not be frustrated, as the renos could be done at a later date. But in the case of our catered engagement party example, assuming the contract did not speak to a pandemic or contain a force majeure clause, the contract would likely be frustrated as the services contracted for can no longer be provided or received due to this unforeseen event.

As with all contracts, written or oral, the precise terms will depend on the language and nature of each contract.

A personal anecdote

My personal situation that relates to all of this (aside from cancelled flights) is that I pay a monthly fee for membership in a certain club that carries out its activities in a set space – like a gym, or a bowling club, or that Loyal Order of Water Buffalo Lodge that Fred Flintstone belonged to, but it is none of those things. We pre-pay our monthly fees twice a year in January and July. In mid-March the club rightly decided to close due to COVID-19. At this point we have no idea when it will reopen, but we have paid club fees for a space and activities that we can no longer use. We didn’t have a written contract, so there is no force majeure. We certainly did not anticipate or plan for any sort of club closure, so it would seem that the contract is frustrated – at least as it relates to the months that it is closed. It is impossible for me as a member to get what I bargained for. In practical terms, I would be well within my rights to seek a refund of those fees paid during the time the club is closed; or more reasonably I could ask that those fees be applied against a future month when the club is again open. Truthfully, I haven’t done that yet as it is the least of any possible concerns I have surrounding this pandemic, but those are rights that I have. I prefer to remain optimistic that all of this will improve in the near future…and if it doesn’t, and I still don’t receive a refund or credit, I have two years to sue.

[1] Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited, 1975 CanLII 170 (SCC), [1976] 1 SCR 580
Domtar Inc. v Univar Canada Ltd., 2011 BCSC 1776, paras 76-77
[2] Ibid para 78
[3] Naylor Group Inc. v. Ellis-Don Construction Ltd., [2001] 2 S.C.R. 943, 2001 SCC 58, para 53, cited in Wightman Estate v. 2774046 Canada Inc., 2006 BCCA 424, para 25
[4] Wightman Estate v. 2774046 Canada Inc., 2006 BCCA 424, para 28
KBK No. 138 Ventures Ltd. v. Canada Safeway Limited, 2000 BCCA 295, para 13

Disclaimer

This website/blog by Davison Law Group is strictly for educational purposes and does not provide specific legal advice.  This website/blog should not be used as a substitute for legal advice.  For legal advice relevant to your particular circumstances, consult a licensed lawyer in your province. Use of this website/blog does not create a solicitor/client relationship between you and Davison Law Group, or any of its lawyers. The accuracy of information provided on or linked to through this website/blog may change over time. Neither Davison Law Group, nor any of its lawyers, is liable for any losses or damages due to reliance on the content of this website/blog. Unless otherwise specifically stated, all materials published on this website/blog are protected by copyright and owned by the author.  Unauthorized reproduction is prohibited.  Please contact the author to inquire about authorized reproduction.

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AL-SABAH ESTATE, 2020 BCSC 169 https://dlg-law.ca/al-sabah-estate-2020-bcsc-169/ Thu, 13 Feb 2020 21:13:00 +0000 https://dlg-law.ca/newwebsite/?p=4469 Judge Duncan_Al-Sabah Estate

“Davison Law Group successfully represented a beneficiary in a large estate matter of a deceased Kuwaiti royal family member. Further disclosure was ordered and the judge reversed some of the administrators decisions. Only one step in the long estate process but a good step for the client by the DLG team.”

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B.C. man claims he owns People’s Party of Canada, not Maxime Bernier – 19 Feb 2019 https://dlg-law.ca/b-c-man-claims-he-owns-peoples-party-of-canada-not-maxime-bernier/ Tue, 19 Feb 2019 21:47:09 +0000 https://dlg-law.ca/?p=4164 Dean P. Davison and client address claim over political party trademark filed against the People’s Party of Canada.

https://www.cbc.ca/news/canada/british-columbia/satinder-dhillon-peoples-party-canada-name-maxime-bernier-1.5025103

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Abbotsford Man Sues Bernier Over Party Name – 19 Feb 2019 https://dlg-law.ca/abbotsford-man-sues-bernier-over-party-name/ Tue, 19 Feb 2019 21:44:33 +0000 https://dlg-law.ca/?p=4161 Dean P. Davison and client address claim over political party trademark filed against the People’s Party of Canada

https://drive.google.com/file/d/1xJnt1m9ec0Xx63fBVf5usKlZSav-T3H4/view

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Abbotsford Businessman Suing Bernier – 19 Feb 2019 https://dlg-law.ca/abbotsford-businessman-suing-bernier-19-feb-2019/ Tue, 19 Feb 2019 21:42:21 +0000 https://dlg-law.ca/?p=4159 Dean P. Davison and client address claim over political party trademark filed against the People’s Party of Canada

https://drive.google.com/file/d/1ij4X7B6C4J64nnYIRVt3BjNYdzLm8bJj/view

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Vancouver Dispensaries Won’t Close Without a Fight – 14 Jan 2019 https://dlg-law.ca/vancouver-dispensaries-wont-close-without-a-fight/ Mon, 14 Jan 2019 21:16:22 +0000 https://dlg-law.ca/?p=4152 Dean P. Davison speaks to Leafly about the ongoing legal challenge brought by cannabis dispensaries against the City of Vancouver.

https://www.leafly.ca/news/politics/vancouver-dispensaries-fight-stay-open

 

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“Pharmacies grapple with medical marijuana sales rules” – 16 September 2018 https://dlg-law.ca/pharmacies-grapple-with-medical-marijuana-sales-rules/ Thu, 06 Sep 2018 21:33:01 +0000 https://dlg-law.ca/?p=4099 Dean P. Davison quoted during submissions in Supreme Court cannabis dispensary case.

https://www.westerninvestor.com/news/british-columbia/pharmacies-grapple-with-medical-marijuana-sales-rules-1.23423680

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“Cities cannot restrict medical-marijuana sales, B.C. dispensaries argue in court” – 4 September 2018 https://dlg-law.ca/cities-cannot-restrict-medical-marijuana-sales-b-c-dispensaries-argue-in-court-4-september-2018/ Tue, 04 Sep 2018 21:44:45 +0000 https://dlg-law.ca/?p=4104 An early article about the Vancouver cannabis dispensary hearings in Supreme Court in which Davison Law Group and various co-counsel law firms are fighting for a large group of medical cannabis dispensaries to remain open.

https://www.theglobeandmail.com/canada/british-columbia/article-cities-cannot-restrict-medical-marijuana-sales-bc-dispensaries/?utm_medium=Referrer:+Social+Network+/+Media&utm_campaign=Shared+Web+Article+Links

 

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