Notice of Interest

We have covered the basics of the Builders Lien Act [SBC 1997] Chapter 45 (the “Builders Lien Act”) in a previous post, discussed the importance for property owners of understanding the liabilities they face under the Builders Lien Act, and the importance of having a contract with a reputable contractor.  There is, however, another shield provided to property owners under the Builders Lien Act that only the most astute or well advised take advantage of, even though the protection is easy to put into place.  This is the Notice of Interest.

The Notice of Interest allows property owners to protect themselves from lien clams with contractors carrying out work that the property owner did not authorize – in other words, it protects owners from the lien claims of contractors hired by tenants.  Generally this is relied upon in commercial tenancy situations, but provided that the basic criteria are met, a Notice of Interest could be used in a residential tenancy scenario as well.

The Builders Lien Act (sections 3(1) and 3(2)) provides that any work done on the property will be deemed to have been done at the request of the property owner where the property owner did not request the work but merely had knowledge of it – that is unless a Notice of Interest has been filed prior to the work being commenced.  A Notice of Interest is a notice made by way of a specific form filed on the title to the property “warning other persons that the owner’s interest in the land described in the notice is not bound by a lien claimed under this Act in respect of an improvement on the land unless that improvement is undertaken at the express request of the owner” (Builders Lien Act, section 1).  Continue reading

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Trust Issues: Employees as Fiduciaries

Owning or operating a business or enterprise requires a certain degree of trust. Unless you are a one-person show, chances are if you run a business, your trust will be placed on your employees. Some of these employees will be executives making important business decisions on your behalf; others will be low-level personnel managing day-to-day operations. Regardless of at what level these employees are found, once you place your trust in these individuals, they can be held legally liable to you for any violations of that trust.

Employees are fiduciaries. A fiduciary is a person in a position of trust – a person who has agreed to undertake the responsibility to act on behalf of or in the interest of another person or company with regard to the exercise of power or discretion in both a legal and practical sense. A fiduciary is accountable to the employer to perform with loyalty, in good faith and to avoid conflict of interest. An employee who is a fiduciary has the duty to not abuse the trust or confidence that has been placed upon them. If an employee violates that trust, they are liable to face legal consequences.

Historically, Canadian courts have limited fiduciaries in employment situations to those employees who are considered to be in established per se fiduciary relationships, such as that of registered directors of a corporations or a lawyers to their clients. Outside of these per se relationships, fiduciary duties are also be found in senior officers and upper management.

In recent judicial decisions, Canadian courts determined that even low-level employees can be considered fiduciaries. In Evans v. The Sport Corporation, 2013 ABCA 14, a hockey agent employee worked for a sports company employer for several years but was never promoted to the position of director of the company, nor did he have any real managerial powers. However, it was held in Evans that the hockey agent acted as the ‘face and voice’ of the employer company and held significant ‘power and influence’ over the company’s economic assets and interests, and as such, a fiduciary relationship was found and the agent was held liable for breach of duty to over $200,000.00. In an earlier decision for Navrab Investments Inc. v. Vaidyan, 2012 ONSC 6844, a sales employee who worked the night shift at a specialty store in Toronto was held in breach of his fiduciary duty to his employer when he stole over $70,000.00 from the store’s till while being entrusted with his employer’s valuables and security.

Canadian courts have emphasized that a person does not become a fiduciary simply because they are given a fancy title; rather, it is the individual’s role and the nature of their responsibilities that decides whether or not they owe a fiduciary duty to their employer. This is especially true for small businesses where individuals outside of management often play a significant and influential role either generally or with regards to specific transactions. Canadian courts are promoting the idea that they are willing to extend fiduciary relationships to ensure the protection of the ‘dependent or vulnerable party’ in employment situations – in this case, the ‘vulnerable’ employer who has placed his trust in his employee.

Breach of the fiduciary duty between employers and employees can happen and is unfortunately becoming more and more prevalent. Occupational fraud and theft is on the rise, resulting in millions of dollars in loss assets for many businesses. In the Association of Certified Fraud Examiners Report to the Nations 2014 study, of the 1483 occupational fraud cases examined, the median loss was $145,000.00 for victim employers, with over one-fifth losing at least $1,000,000.00.

distribution of losses

From the Association of Certified Fraud Examiners “Report to the Nations on Occupational Fraud and Abuse” (2014), at pg. 9

There are several ways to protect yourself as an employer against breach of fiduciary duty by your employees. One way to prevent a breach of trust is through a well-crafted employment contract. An employment contract can set out the specific role and responsibilities of the employee with emphasis on the trust relationship and expectations placed upon them. Further, an employment contract may also set out stipulations such as non-competition clauses and confidentiality agreements that further protect the employer’s interests. While these types of clauses are not iron-clad, they are a good place to start for employers seeking to protect themselves against breaches of their trust.

Despite early prevention methods, the fact that occupational fraud and theft is becoming more common means that employers still find themselves in situations where an employee has stolen their assets. As noted above, employees are fiduciaries and employers trust their employees to handle their assets responsibly – breach of that trust means legal consequences. One method of recovery is to prosecute the theft criminally; however, there is a growing trend in Canada where employers favour civil remedies. The recent shift in the definitions of fiduciaries has aided employers in ensuring their success in court against rogue employees. Employers should not shy away from pursuing employees for breach of their fiduciary duty. Canadian law establishes that these employees have legal responsibilities and employers have legal rights to pursue employees for breaches of the fiduciary duties they owe. The Canadian legal system has many mechanisms, from pre-judgement asset preservation to post-judgement garnishing procedures, to further the success of employers in civil recovery against such employees.

Learning to trust is one of the most difficult tasks, but employers cannot fear placing their trust in their employees. Canadian law protects employers by making employees fiduciaries and formally establishing this trust relationship as a legal responsibility. Employees must honour this responsibility and if they breach this trust, employers have the right to pursue them as fiduciaries and recover what is rightfully theirs.

by Jennifer Cao, summer studentмалого для бизнеса получение кредита

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Canada’s Anti-Spam Legislation

Anyone with email has found recently that their inbox has been heavy with emails from companies and organizations asking for permission to keep in touch via email. The reason for this barrage of email is, ironically, because of the federal government’s desire to help the public decrease the amount of unwanted email received. Canada’s new anti-spam legislation came into effect on 1 July 2014 and places limits on electronic, commercial messages (“CEMs”) that can be sent. The legislation is colloquially called the ‘anti-spam legislation’ because the entire title is:

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act

Accordingly, we shall refer to it as ‘the anti-spam law’ or ‘the law’.

The law is designed at prohibiting CEMs, which include messages sent by email, text, or by message to social media accounts, unless the recipient agrees to receive such messages. Whether or not the message is ‘commercial’ in nature will depend on the message’s content. If it promotes a product, service, or commercial activity (whether or not it is for profit), then it will likely be a commercial message. If, however, the message seeks donations, for example, it would generally not be captured under the law, as it is not promoting a commercial activity. The law applies to all businesses (whether or not they are incorporated), societies, associations, not-for-profits, and individuals. Continue reading

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DLG is Moving

Exciting News! Davison Law Group is Moving!

Davison Law Group is pleased to announce that we will be moving to a new location at the month’s end. As of June 2, 2014, we will be located at:

1650 – 1130 West Pender Street Vancouver, BC  V6E 4A4

dlg map

 

 

 

 

 

 

 

Our phone and fax numbers will remain the same and can be found on the left sidebar.

We look forward to seeing you there.friederike-ziganek-soehlke.com кредитная карта виза кредит моментум

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Getting Paid: Mechanics’ Liens

It is not uncommon for tradespeople, professionals and businesses alike to encounter customers who refuse or neglect to pay their bills. Although a lawsuit is always an option in these scenarios, many simply choose to write off the loss as bad debt rather than throw good money after bad, especially when a debtor has relative few assets and a lawsuit might result in a dry judgment.

Fortunately for mechanics, however, the British Columbia Repairer’s Lien Act provides a method for securing payment of unpaid bills without having to commence a lawsuit. The Repairer’s Lien Act gives a mechanic a lien on the vehicle he or she has repaired for the total cost of the repairs, and the mechanic is entitled to sell the vehicle to pay the debtor’s bill if the bill is still unpaid 90 days after it was rendered.

While the mechanic’s lien is virtually automatic, it is important to note that the lien exists only as long as the mechanic has the vehicle in his or her possession. If for any reason a mechanic wants to relinquish possession of the vehicle to a debtor, for instance if the mechanic doesn’t have enough space to hold the vehicle, the mechanic can preserve the initial, possessory lien by:

  1. before surrendering possession of the vehicle, obtaining a signed acknowledgement of debt from the debtor (a signed invoice will suffice); and
  2. registering a “financing statement” in the British Columbia personal property registry within 21 days after possession is surrendered.

Continue reading

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Employee Theft – Don’t Continue to be the Victim

Introduction

As long as I have been involved with asset recovery for victim employers, it has been an uphill battle trying to convince employers to go after rogue employees. Employees take millions of dollars from employers, yet there is a reluctance to be aggressive and recover what was theirs.

Canadian and moral law demands for a fair recovery of all assets that you can prove have been wrongfully taken, but more importantly, recovery is the right thing to do. The excuses for not pursing the rogue are many:

  1. shame in letting yourself become the victim;
  2. inability to prove that they have taken the assets;
  3. belief that the police will fix the problem;
  4. belief that you will never recover the assets; and
  5. belief you are throwing good money after bad.

None of these reasons justify putting your tail between your legs. The real, potential benefits from trying to recover your losses far outweigh the cons. Continue reading

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The Process in BC for Declaring a Missing Person Legally Dead

For the family members of a missing person, there may come a time when it is reasonable to infer the person is deceased. In such a situation, these family members may need to obtain a legal declaration of death for the person in order to deal with the various legal issues that arise upon this presumption of death.

As a recent summer student at the British Columbia Coroners Service, I witnessed death in many forms. These deaths were invariably tragic and painful for the family of the deceased person but—although they may not have realized it—the relatives of these deceased persons were fortunate in that they had a dead body. The existence of a dead body is incontrovertible proof that a death has occurred. The Coroners Service will duly and promptly issue a declaration of death for a deceased person when his or her body is observable and identifiable, thereby enabling the family of the decedent to address the legal issues that may have arisen upon his or her death.

In most missing-persons cases, even though the person may have been missing for years, there is insufficient evidence of death to satisfy the Coroners Service’s criteria for issuing a legal declaration of death. There isn’t a dead body, and quite often the missing person disappeared without leaving any indication of what might have happened to him or her.

Fortunately, the Survivorship and Presumption of Death Act provides the family members of a missing person with an alternative method of obtaining a legal declaration of death for the person. Under the Survivorship and Presumption of Death Act, a family member (or other interested party) may apply to the Supreme Court of British Columbia for an order declaring the missing person “presumed dead.” Before the court will make such an order, it must be satisfied that:

  1. the missing person has not been seen by the applicant or any other person since he or she went missing;
  2. the applicant has no reason to believe the missing person is alive; and
  3. there is some evidence from which it can be reasonably inferred that the missing person is dead.

Continue reading

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Increasing a tenant’s rent that has fallen below market: a guide for landlords

Rent increases for tenants of residential property in British Columbia are controlled by the British Columbia Residential Tenancy Act. A landlord is permitted to increase his or her tenant’s rent every 12 months, and must give the tenant at least three months’ notice of the increase. Each year, however, a landlord is only permitted to increase his or her tenant’s rent by an amount equal to the inflation rate + 2%. If a landlord does not increase his or her tenant’s rent on an annual basis, it is possible—and probable in a red-hot rental market like that in Metro Vancouver—that the tenant’s rent will soon become much lower than the market rent for similar rental units. Fortunately, if you are a landlord and you have not increased your tenant’s rent for a number of years, the Residential Tenancy Act provides for certain methods to bring your tenant’s rent back in line with market rent.

1. Obtain your tenant’s written consent to an additional rent increase

The Residential Tenancy Act provides that a landlord may increase his or her tenant’s rent up to an amount agreed to by the tenant in writing. This is the simplest method of increasing rent beyond the annual amount that is allowed for by the Residential Tenancy Act. However, increasing a tenant’s rent through this method requires the tenant’s agreement; he or she cannot be forced to accept a rent increase beyond the annual amount. Continue reading

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Immigrating and Investing in Canada

The Canadian Government seeks to attract experienced business people to Canada who will support the development of a strong and prosperous Canadian economy.

There are different ways to immigrate to Canada as an investor. The most popular one is the Provincial Nominee Program – Business Stream. Here, the applicant needs to demonstrate their intentions to establish in certain province and they will need to present a business plan for approval. If the business plan is accepted and the applicant receives nomination by the Province, they can apply for a work permit and will have the right to apply for permanent residence.

Another popular way to immigrate to Canada as an investor is by using the Free Trade Agreements Canada has with different countries around the world. The General Agreement on Trades in Services (“GATS”) can be considered as one of these options as well.

When there is no Free Trade Agreement between the applicant’s country of origin and Canada; and the applicant’s country of origin is not signatory of GATS either; another option will be to create a business in Canada under Rule 205 of the Immigration and Refugee Protection Regulations. This regulation talks about significant Canadian interests where the Canadian economy will have a benefit from a possible investment such as creation of new jobs for local people, etc. Continue reading

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The New Family Law Act

On 18 March 2013 the new British Columbia Family Law Act comes into force and will replace the current Family Relations Act and the way the law in BC deals with cohabitation, marriage, separation, and divorce. There are too many changes to go through in detail in a blog post, but here are some highlights to be aware of if you are currently moving in with or marrying your partner or if you are in the process of ending your relationship.

Overall, the Family Law Act covers the same ground as the Family Relations Act, but it contains some updated and revised terminology, adds some concepts that were absent from the prior legislation and changes some procedures for resolving conflict. The new legislation has more of a focus on putting the child’s interests first and on settling matters out of court through mediation or arbitration.

The Family Law Act includes a long list of new terminology for old concepts. For example, the Family Law Act does not talk about “custody” or “access” of children; it uses terms such as “guardianship”, “parental responsibilities”, and “parenting time”. The definitions of these and other terms are all found in the legislation itself and, overall, the new Act is written in a way that uses more “plain language” and is easier to understand.  Other terminology is left the same, but has new definitions, such as “spouse”, which now includes people who are married or who used to be married, unmarried people who have lived together in marriage-like relationships for more than two years, and unmarried people who have lived together for less than two years but have had a child together. Continue reading

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