League and Williams Lawyers

Category: Info Articles

Alternative Dispute Resolution: A Better Way Forward in Private Disputes
Most people find nothing but a headache in involvement in a legal dispute, especially if the dispute goes to court. While having competent, full service legal representation can make the process much easier, the prospect of going to trial is enough stress to be overwhelming. Court processes can prolong disputes while litigants anxiously wait for appointments and face Covid-19 backlog related delays. Alternative dispute resolution (ADR) is attractive to litigants because it offers a means of dispute resolution that avoids the courts altogether, often saving considerable time.

Most Common Methods of Alternative Dispute Resolution

There are a few different ways lawyers can help their clients go about alternative dispute resolution, and the method of choice will depend on the details of the dispute and how the parties agree to seek a resolution. The most common methods of ADR include
- Mediation;
- Arbitration;
- Conciliation
We will discuss the details of each process, their application’s pros and cons, and the scenarios best suited to them in this article. It’s important to remember that alternative dispute resolution is entirely voluntary, and the disputing parties must both agree to seek a resolution outside of the courts in order to move forward with a private settlement.

Mediation

The process of mediation involves a third party known as the ‘mediator’, who works with both parties and their legal representation to come to a decision. Usually, the opposing parties sit in private rooms with their lawyers while the mediator goes between rooms to speak to each party to fully understand the situation and the interests of everyone involved. Mediation is a rigorous process depending on the circumstances of the dispute it seeks to resolve, and parties must come prepared to share all details of the dispute to the mediator. This often involves detailed financial disclosures or medical records with extensive evidence.

People often use the process to reach settlements in personal injury claims or family disputes such as divorce. Mediation is informal and not binding, so it if often used in the greater process of drafting a binding agreement. Even if the mediation fails, it can help the parties to better understand each other’s positions on important issues and consider how they would like to move forward. This makes mediation a good choice for a first step in alternative dispute resolution, even for the most complex disputes.

Unfortunately, mediation does not always help parties to reach a settlement. A resolution must have both parties’ agreement to be binding, and sometimes, the parties can’t resolve their differences through mediation. Mediation doesn’t guarantee a resolution suitable for both parties, so an unsuccessful mediation risks wasting both parties’ valuable time and money

This is a particularly important point for those seeking ADR to consider when deciding their approach, as the point of ADR for most is to save time and money by avoiding court processes.

Arbitration

Like mediation, the disputing parties select or agree upon an independent third party in arbitration to find a resolution. However, the process differs from mediation because the arbitrator has the task of making a binding decision on behalf of both parties. Both disputing parties put their case forward to the arbitrator for them to consider. They will carefully consider the evidence put forward by both parties to help them come to a decision. Usually, the arbitrator will meet to discuss with each party at least once if not several times before coming to a decision to make sure they fully understand the dispute.

ADR processes allow the disputing parties to have more control over the outcome of their dispute than if they were to take the dispute to court.

People call the arbitrator’s decision an award, and it becomes binding once the arbitrator submits it to the parties. The binding nature of the dispute is what makes arbitration attractive to many people facing legal disputes, as the decision from a professional arbitrator is likely to be fair and reasonable to both parties and often settles the dispute faster than meditation would.

Adverse Outcomes in Arbitration

However, those seeking arbitration run the risk of an outcome that they are very unhappy with. If they find the arbitrator’s award very unsatisfactory, they can appeal the decision and take it to the courts. However, arbitrators are usually legal professionals like ex-lawyers and it is not often that a court will find that their decision should be entirely reversed or significantly changed in favour of the appealing party. Appealing the award also risks the courts handing down a decision that is less favourable to them than the arbitrator’s resolution, meaning that they got a worse deal and failed to save time and money by avoiding the courts.

Conciliation

The process of conciliation looks very similar to mediation at first glance, but the role of a conciliator has important differences from that of a mediator. A mediator’s job is to facilitate a conversation between the two parties to reach a solution, where a conciliator’s job is more involved in arriving at the specific solution. Like a mediator, conciliator is meant to facilitate the conversation between the two parties, but they also make interventions to direct the conversation and give their own advice on reaching a resolution. They often set an agenda for the meeting(s) and prompt the parties to answer specific questions which they feel will contribute to constructive conversation and resolution of the dispute. Though it is similar to mediation, conciliation offers more significant support from the third party facilitator making it attractive to individuals looking for a quick solution for disputes which are not particularly contentious.

The Role of Your Lawyer in Alternative Dispute Resolution

Whether you are working with a mediator, arbitrator or a conciliator, your legal representative will be one of your most important resources during the ADR process. Parties engaging in any of these ADR processes almost always have a lawyer representing and guiding them throughout the whole process, ensuring they are properly advocated for and fully understand their rights and options.

Your lawyer will be directly involved throughout every step of the ADR process, helping you to understand the legal implications of the dispute, gather and organize your evidence or disclosures, and providing coaching and support prior to and during meetings with the other party. Feeling comfortable and confident with your legal representation is the first step in successful alternative dispute resolution. If you are considering ADR as a means of solving a legal dispute, contact an experienced lawyer today. We’ll ensure you are properly advocated for and are prepared to put your best case forward to third party professionals.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
October 7, 2022
Enter the Housing Market: Co-Ownership
Breaking into the lucrative B.C. real estate market is increasingly out of reach for many due to the ever-increasing cost of property in the province. To purchase a property in B.C. more affordably, many are choosing to purchase with a family member or friend. Co-ownership can provide an easier pathway for many to purchase a first home or investment property. However, there are some important considerations for buyers using this method.

Why Co-Ownership?

There are many reasons that people may consider co-ownership when purchasing a property. The potential benefits of co-ownership can include:
- Lower entry cost per person for high-value investments;
- It is often easier to qualify for financing with a partner;
- Access to additional funds for both purchasing and maintaining the property;
- Shared responsibility for maintenance of the property.
Protecting Both You and Your Investment Partner’s Interests

While some feel that doing business with family or a friend is low-risk, remember that a co-ownership agreement protects everyone. In the case of a co-owned investment property, the co-ownership agreement will serve many purposes that benefit all parties involved. These are important considerations for anyone managing an investment property with a partner or partners. The co-ownership agreement is a good place to establish the rules for the everyday management of the property. Some examples include:
- Creating a detailed guideline for how the property will be managed on a day-to-day basis
- Laying out the individual responsibilities of each owner, big and small
- Establishing the way in which decisions will be made by the partners (eg. a vote)
- Determining how and when a co-owner can sell their portion of the investment
Consequences for Breaching the Agreement

The other obvious purpose of the co-ownership agreement is to create accountability amongst co-owners for their responsibilities related to the investment. If a partner does not perform their duties as laid out in the co-ownership agreement, they could be considered in breach of contract and face legal and financial consequences. This protects the owners from financial injury if one owner fails to uphold their responsibilities, and can act as a guideline for what to do if things go wrong in the management of the property. This can also help avoid confusion and disagreement between co-owners throughout their time owning the asset cooperatively. Detailed co-ownership agreements can be especially important when planning your estate, as there should be no question of what will happen to your portion of the co-owned property upon your passing in order to protect your beneficiaries and your co-owner from litigation after your death.

Are There Risks to Entering a Co-Ownership Agreement?

In general, the purpose of a co-ownership agreement is to mitigate risk for the partners, protecting them in the instance that their co-owner does not fulfill their responsibilities causing harm, financial or otherwise. It also ensures the rights of each partner over the investment are known and agreed upon in case there is a dispute over the asset in the future. In this way, entering a co-ownership agreement is the best way to avoid risk when making a large purchase, though you should be certain that you will be able to fulfill your responsibilities according to the agreement, or risk being in breach of your co-ownership agreement.

When creating a co-ownership agreement, it is crucial that you are fully aware of its contents, and completely understand the responsibilities the agreement designates both to you and your co-owner(s). Your co-ownership agreement should be tailored to the unique needs of both the asset and its owners. If you’re looking to make an investment purchase with one or more other investors, or have already made said purchase without creating a co-ownership agreement, contact an experienced lawyer today to prepare you and your partners to protect your rights over the asset.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.
July 20, 2021
‘Tis the Season – Holiday Parties and the Law
Holiday Cheer May Bring Legal Liabilities

Welcome to this week’s blog on the law. As the holiday season approaches, many people and businesses plan on hosting holiday parties. Most of these parties involve serving alcohol, which in turn gives rise to certain legal responsibilities for the host of the party. This area of law is called “social host liability”, and in this week’s blog, I will outline some important points of social host liability.

What is Social Host Liability?

In 2006, Canada’s highest court found that a social host does not, as a general rule, have a duty to protect the public from a guest who consumes alcohol. That case involved someone who hosted a house party, and told their guests to bring their own booze. The host did not serve any alcohol, and did not see that one of the guests was intoxicated before the guest left the party and badly injured another person in a car accident. However, the court’s decision would likely have been different if the host was serving alcohol to its guests, or the host saw that the guest was intoxicated when they left the party.

People who serve alcohol as part of their business, such as restaurants and pubs, do have a duty to the general motoring public to ensure people they serve alcohol to do not pose an unreasonable risk to others. Most businesses address this duty by training their staff to monitor customers drinking and providing means to access safe rides home.

Also employers who host holiday office parties also owe a duty to their employees because there is generally an expectation of supervision in an employment relationship, and this supervision often includes what people do at office parties. On the other hand, people who are hosting a house party for friends may owe a duty to people who might be harmed by their guests if the host is providing alcohol to their guests, or they observe their guests to be intoxicated when they leave the party. These duties mean that if someone is hurt as a result of not complying with a duty, they can be sued.

5 Tips to Keep Holiday Cheer from Turning into Legal Liabilities

If you are hosting a Christmas party, particularly if you are an employer who is hosting a party for your employees, here are some quick tips to help address your duty to reduce the risk of harm coming to others:
1. Choose you party location wisely.
  
  Avoid having your party in a location where you know it is difficult for people to obtain safe rides home from. If you are an employer, try to have your party at a licensed establishment, such as a restaurant or pub. The duty the business has to safely serve and monitor guests is greater than the duty of the employer to monitor their guests, and will help to protect people from guests who have too much to drink.
2. If you have an open bar, staff the bar with a qualified bartender.
  
  If it is decided to host your party somewhere other than a licensed commercial establishment such as a restaurant or pub, it is wise to staff the bar with someone who is qualified to be a bartender. A counter full of booze for people to help themselves is generally a bad idea. You do not need to track people’s drinks by having “drink tickets”, but someone who is tasked with serving drinks that can monitor those who appear impaired will help protect that person, and others, from harm. If you are an employer that is paying for the alcohol, you should either provide drink tickets to limit the consumption, or close the “open bar” well before the end of the party to prevent over-consumption. An employer paying for unlimited alcohol is far more responsible for its effects than an employer who limits it availability.
3. Serve food throughout the evening.
  
  Serving food throughout the evening will not only reduce the effects of alcohol consumed, but will also typically reduce the amount of alcohol consumed.
4. Always have options for your guests to find a safe ride home.
  
  You cannot force a guest to accept a safe ride home, but making them available goes a long ways to avoiding harm. If you invite a friend who you know likes to drink, think ahead about how you will help get them home. Don’t leave it until the end of the night to figure out. Make it easy for your guests to make good decisions about getting home safely.
5. Invite the family, or at least the spouse or significant other.
  
  The purpose of holiday office parties, is of course to celebrate a year’s work well done. As a result, holiday office parties often involve a great deal of cheer and enthusiasm by employees, particularly when alcohol is involved. Accidents and even conflicts are not uncommon, but people tend to drink less or at least behave better, when their spouses are around, and particularly if their children are present. Guests often still enjoy their drinks, but to less of an extreme if their family is there.
  
  Wishing Everyone a Merry (and Safe) Holiday Season and New Year
In closing, nobody likes a party pooper but nothing wrecks a holiday season more than a death or injury that could have been avoided. All of us at League and Williams, wish all of you a merry (and safe) holiday season. I hope you have learned something about the law from this blog. Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law.

If you have been in an accident, do not hesitate to contact us via phone at 250-888-0002 or via email at info@leaguelaw.com
December 11, 2017
Drivers Optional? Liability and Fault for Self-Driving Cars

The Rise of Self-Driving Cars

Both the popularity and presence of self-driving cars on North American roads is expected to grow in the decades to come with car makers looking to make fully autonomous vehicles an affordable reality. What’s not to like? A person gets from point A to B in the comfort and convenience of their own vehicle while not having to do the tedious and attention demanding tasks of having to operate the vehicle. Is this the dawn of a new era? An era where parents are no longer slaves to the transportation demands of their children, the elderly no longer need to fear being told they are no longer fit behind the wheel and those who enjoy a drink or two no longer need to cab or have a designated driver. Are the days of carnage and casualty caused by driver error numbered? When accidents involving self-driving cars happen will their owners still be held responsible or will manufacturers have to share in responsibility for the damage caused?

The Days of Driver Error May Not be Numbered

There have been cases where vehicles in “auto-pilot” mode have been in accidents. As an example, in May 2016, a man was fatally injured while driving down a Florida highway at 119 km/h using his Tesla’s Autopilot driving system. The Tesla collided with a tractor-trailer that had emerged onto the road from an intersection. Immediately after the accident, Tesla indicated that the collision was because the camera on the car failed to recognize the tractor trailer due to the brightness of the sky that day. It first appeared as though the car was to blame for the accident.

A subsequent US Federal investigation into the accident determined that the autopilot function was designed to detect motor vehicles in the same lane and prevent front-to-rear collisions but was not designed for situations where cars appear from intersections to enter or cross the road. The investigators believed that the autopilot system was not responsible for the accident as it had performed as designed, but rather its use in a situation for which it was not designed (a road with intersections) was the cause of the accident. The federal investigation determined that the accident was ultimately the result of driver error as the driver had completely relied on the autopilot function when he should not have and had the driver remained vigilant, the collision would have likely been avoided.

Advanced Driver Assistance is Not a Green Light to Drive Distracted or Under the Influence

The US Federal investigation determined that a vehicle equipped with an advanced driver assistance system, or auto-pilot, still requires the continuous and undivided attention of the driver to monitor the road ahead of them (and intervene if appropriate). As such, drivers are still needed, and that failing to provide an appropriately trained and skilled person behind the wheel can result in personal liability should these kinds of systems fail if appropriate driver intervention could have avoided the crash. It would also appear that having the car in “auto-pilot” mode would be no defense against a distracted driving charge nor would it be a defense for a person who was driving under the influence of drugs and/or alcohol.

The Road from Driver Error to Product Liability

Drivers are still needed and will ultimately be held responsible if they fail to operate their vehicles responsibly. However, it is imaginable that car crash cases where the manufacturer of the car or the manufacturer of components of the self-driving features of the car are argued to have contributed will become more common. It is also imaginable that fully autonomous vehicles will become a reality in the decades to come and will challenge the law and car insurance to evolve – an “unfit” driver might someday be irrelevant to the case at hand. In the meantime, as vehicles with advanced driver assistance including auto-pilot, like the Tesla Model S, become more popular; road users will need to appreciate the limits of the technology to avoid carnage and casualty.

Indeed, it appears that the business of injury law related to car crashes is unlikely to become obsolete any time soon, although it may get far more complex in the years to come with the introduction of self-driving vehicles. Those in accidents involving a self-driving car may benefit from experienced legal advice that can assist them in navigating their claim. If you or someone you care about has been in an accident in BC and needs legal advice, the injury lawyers at League and Williams help their clients recover their fullest potential, provide free consultations and do not get paid until the claim is resolved. To contact our lawyers call 250-888-0002 or via email at info@leaguelaw.com.

July 19, 2017
Form versus Function: Women’s Riding Gear
No rider plans to be in accident, but it happens, even to the safest of riders. When these accidents happen, the gear worn matters and can make a big difference. Good quality riding gear minimizes the risk of severe injuries and can save a rider’s life. Investing in proper riding gear is essential – but must women sacrifice function for fashion?

As a motorcycle rider who enjoys spending time on her bike, and as an injury law paralegal working as part of the League and Williams team, it is my pleasure to make the case that safety should never be foregone for style, and that today’s riding gear manufacturers are up to speed on women riders’ need for fashion. Simply put, there are no excuses to be improperly outfitted before hitting the road on your bike – women can look great while ensuring that safety is not sacrificed.

Ensuring your Riding Gear is Good to Go: Minimum Requirements

Many riders may not be aware of the minimum standards that their riding gear should meet. At a minimum women’s riding gear should include:
- An approved helmet; ensure that it is DOT, Snell or ECE rated – this is perhaps the most important piece of gear a rider owns, protecting against brain injuries, as well as eye and face injuries;
- A 1.2-1.4mm leather jacket or an approved textile jacket – a good jacket can protect a rider from severe lacerations and abrasions that can happen in a crash; jackets with armour offer more complete protection and if choosing a thinner jacket (less than 1.2mm), investing in the armour will offer better protection;
- Gloves;
- Boots, with at least a 6” shaft (from bottom of the foot to top of the boot); and,
- Proper riding pants (again, leather or textile, with or without armour) offer more complete protection.
Investing in the Jacket – Four Suggestions from One Rider to Another

Finding a suitable riding jacket that meets safety standards, looks great, and fits a rider’s budget can be a challenge. Having recently completed this challenge myself, I am happy to provide the following suggestions. After all, after a rider’s helmet, a suitable riding jacket is a key investment that will be worn for years to come. Thankfully, the industry has recognized women riders’ need for function, form and price. There are some great options out there that offer great protection, will turn heads on and off the bike and won’t break the bank. My four top picks include:
1. Roland Sands Design (RSD, @rolandsands) the Maven, available in black or oxblood. This jacket offers top grain pre-oiled cowhide (1.1-1.3 mm); perforated; performance fit; equipped for RSD armour (sold separately). This year’s model, the Riot, is made thinner for even better style, at only 0.8mm-0.9mm; this might suffice in warmer weather but the Maven would be a better option for three-season riding in Canada. The Maven or the Riot will run you about $850-$900CAD and can be found at Town Moto (@townmoto).
2. Black Arrow – Ain’t No Sissy Motorcycle Jacket. This is a favourite for style, and equipped for armour (again, sold separately), but like the Riot, may be too thin for Canadian riding in Spring and fall. This jacket costs about $650CAD.
3. Alpinestars (@alpinestars) Vika line – coordinating pants, gloves and boots available. This is one stylish, yet safe, line. If the budget allows, it is possible to be totally outfitted in safety while feeling like a model! Like the Roland Sands Design and Black Arrow, the Vika line is armour-ready but the amour is sold separately. Again, this line may not offer the warmth needed for Canadian shoulder-season riding.
4. On a tighter budget? Check out the women’s line at First Manufacturing Company (@FirstMfg), offering stylish, safe and armour ready jackets at very reasonable prices. You may have to ship up from the US; however, Town Moto does carry at least one of their jackets, the Warrior Princess, at $350CAD. Unlike the more expensive options above, most of First Manufacturing Company’s jackets come equipped with full-sleeve zip out liners, making them a great three season choice for Canadian riders. I am happy to don the #FMCPrincessCut myself.
Women’s riding gear that is good to go: Helena’s picks.

If you are looking for a stylish helmet too, my favourite is the Gringo S line by Biltwell.

Many riders could benefit by also equipping themselves with a high-definition helmet camera. Riders may enter to win a high definition helmet cam from League and Williams lawyers, by going to our Facebook page and commenting “League and Williams has your back” on the Hindsight: 1080p post – draw happens on July 12, 2017.

Even with the appropriate gear, when accidents happen, even to the safest of riders, injuries can be significant. It is good to know that the injury lawyers and legal team at League and Williams has your back. Our legal team pays for treatment when ICBC won’t, offers free consultations, and works to get injured riders their best recoveries. If you’re injured in a motorcycle accident, we may be contacted either by phone at 250-888-0002 or by email at info@leaguelaw.com. We serve clients across British Columbia.
July 7, 2017
Red Flags with Victoria’s Protected Bike Lanes and Green Boxes

Protected Bike Lanes on Pandora Open to Mixed Reviews

On Monday, May 1, 2017 the Pandora St. protected bike lanes officially opened to the public. The intent of this two-lane track that runs from Wharf St. to Cook St. is to separate bike traffic from car traffic and make cycling more efficient and safer. While the intention is honourable, the immediate result has been confusion and many near-misses between motorists, pedestrians and cyclists. Road (and crosswalk) users will have to adapt to significant changes in their usual behavior at intersections along Pandora. However, it should be noted, where this kind of bike lane has been implemented elsewhere, improvements in safety have been realized.

Motorists, Cyclists and Pedestrians Face a Learning Curve

Motorists will no longer be able to make right turns on red lights at intersections, and must stop behind the green bike boxes away from the intersection. Cyclists have to maneuver to enter and exit the bike lanes through “green boxes” that are far from intuitive and involve turning right to go left, and vice versa. The City has had to produce a four-minute video to explain how the protected bike lane works – it is doubtful many cyclists, motorists or pedestrians will absorb the video. The City has stationed employees at the intersections to explain to road users how to navigate the new “facilities” – it is unclear how long these employees will be stationed there as the tourist season progresses. The forecast calls for confusion and flared tempers, and sadly a significant chance of serious injuries as people adjust to this new norm.

No Requirement to Use the Bike Lane Provided

While many motorists are glad to see the dedicated bike lanes, some are not. Even some cyclists ask if they have to use the bike lanes, many of them nervous that motorists and pedestrians won’t know how to behave around the bicycles that enter and leave the green boxes in a bizarre fashion that involves turning their bikes 180 degrees. However, whether people like it or not, the law does not require cyclists to use the protected bike lanes simply because they are available. If a cyclist is injured by a vehicle outside of the protected bike lane, the court will not find the cyclist negligent for not using the bike lane just because it was there, provided the cyclist’s actions were not otherwise the cause of the accident.

If Protected Bike Lanes Prove Hazardous, Can the City be Held Liable?

Importantly, BC courts have said: “a municipality has a duty to maintain roads in a reasonably safe condition. The duty extends to taking reasonable steps to prevent injury to users of the roads caused by hazardous conditions… such as those arising from the design or configuration of the road.” The point to be drawn from the foregoing is that a municipality’s duty extends to maintaining and configuring its roads, such that they are safe for use by someone using ordinary care.

How cyclists are required to navigate Victoria’s new bike lanes, as well as how motorists and pedestrians are expected to behave around them, is now far from ordinary for the typical road user (watch the video and you will see). This means that the City may find that a cyclist, pedestrian or motorist is injured because of a confusing or otherwise unsafe road design that a person exercising ordinary care would not expect, may hold the City responsible for their injuries. Such a claim does not involve ICBC paying for the City’s negligence.

Many people do not know that there is a very short time limit for notifying the City that its design or implementation of the new bike lane has caused someone harm. The BC Local Government Act states that a local government “is in no case liable for damages unless notice in writing, setting out the time, place and manner in which the damage has been sustained, is delivered to the municipality… within 2 months from the date on which the damage was sustained.” This means that if the City is not notified of an injury within 60 days of the accident, the City will bear no responsibility regardless of how severe the injuries are. Hopefully no injuries arise as tourists and locals learn how to use the new protected bike lanes, but if they are, they should not overlook the requirement to give notice to the City within the 60 days required by the Local Government Act.

Darren Williams is the principal lawyer with League and Williams and leads the personal injury area of practice of the firm. If you or a loved one has been injured in an accident, we would like to help you recover. League and Williams offers free consultations, does not get paid until you do and is focused on ensuring that you recover to your fullest potential. League and Williams is headquartered in Victoria, BC with satellite offices in Duncan, Nanaimo and Campbell River. We may be contacted via email at info@leaguelaw.com or phone at 250-888-0002.

May 3, 2017
Private Mooring Buoys and Anchorages – How is the Wild West to be Regulated?

In 2015, BC’s highest court confirmed that the constitutional right to secure a vessel by buoy or anchor is limited to a “reasonable time, for a reasonable purpose”. This decision, and the application of the law that will flow from it, is a significant cautionary marker for all those who rely on private anchorage and mooring buoys along the BC coast. In what could easily fill a small book, this article will briefly summarize the issues and interested parties in what is, under the surface, one of the most controversial marine issues on our West Coast of Canada – private moorage.

What makes the issue of anchoring/mooring controversial is that there are two very different ways of viewing the same fundamental right, the right of navigation. On one hand, many vessel owners interpret the right of navigation, and its included right of anchoring/mooring, as a legal basis for storing their vessel at anchor, or on a buoy, for both short and long periods of time. On the other hand, other vessel owners, upland property owners and other concerned parties, view anchoring/mooring to the seabed (or riverbed) as the use of common (public) property that should not be utilized such that it interferes with others’ use of the same resource (the waterway), or endangers life, property or the environment. What makes matters worse is that the law remains less than clear on what reasonable anchoring/mooring is, and who is responsible for regulating it. These issues are best understood by reviewing the following relevant parties: the Federal Crown, the Provincial Crown, local governments, upland property owners and vessel owners.

The Parties: from the Queen to Vessel Owners

Historically, the Federal Crown has been viewed as the de facto regulator of anchoring/mooring because of it exclusive jurisdiction over “navigation and shipping” under Canada’s Constitution. While only partially correct, this view is likely even less correct under evolving law, as discussed below. The Federal Crown (through Transport Canada) partly regulates anchoring/mooring under two primary laws: the Navigation Protection Act (“NPA”), and the Private Buoy Regulations (“PBR”). The PBR applies to all private (non-governmental) buoys placed as aids to navigation (including mooring buoys) except for those used to mark fishing apparatuses, and sets out the shape, colour, size and responsibilities of those placing the private buoy. The PBR does not restrict the location of mooring buoys. The NPA applies to buoys used for moorage, which are defined as a “work” within the NPA, and is meant to ensure the placement of buoys do not interfere with vessel traffic. That said, Transport Canada will rarely respond to complaints about anchoring/mooring unless the vessel or buoy impedes commercial vessel traffic or is a significant risk to general vessel traffic.

The Provincial Crown in BC is an important party to these issues because, since 1871, BC has had ownership of its “inland seas” (Strait of Juan de Fuca, Strait of Georgia, Johnstone Strait and the Queen Charlotte Strait), as well as ownership of the foreshore (area between low and high tide) and bays. While all Canadians can enjoy the public right of navigation through these waters, there are laws related to the trespassing of these lands. For example, under the BC Land Act, it is an offence of trespass to occupy, possess, or use the seabed without lawful authority from the Province. Individuals, including owners of property adjacent to the foreshore, cannot build or construct private moorage facilities on the foreshores or seabed without a lease or specific permission from the Provincial government. Local governments (for example, cities, municipalities, and regional districts) have not historically been party to the issue of regulating anchoring and mooring. This has recently changed, predominantly as local concern over managing abandoned (derelict) or hazardous vessels has increased. BC Courts have ruled that, provided the seabed (lakebed or riverbed) is within the boundaries of the local government, the local government may enact bylaws that limit anchoring and mooring, provided the purpose of the bylaws is to manage land (the seabed and adjacent upland properties) and not manage navigation. Importantly, the restriction to such bylaws is that they cannot interfere with anchoring or mooring for a “reasonable time, for a reasonable purpose”. In 2015, the BC Court of Appeal (in Kelowna v. Newcomb) cited, with approval, an earlier decision of a BC court regarding anchoring:

There is a common law right to navigation which includes the incidental right to anchor… This is not a right to anchor or moor permanently but it must be exercised reasonably as determined by the circumstances at the time of anchoring such as the weather, loading or unloading of the vessel, or the need for repairs to the vessel. The right to anchor therefore contemplates the right to do so for a reasonable time, for a reasonable purpose.

Some local governments have begun attempting to indirectly define what a “reasonable time, for a reasonable purpose” is, by setting limitations on anchoring to, for example, less than 3 consecutive days, or not more than 4 days per month. To date, no BC court cases have considered what is an appropriate limit, and undoubtedly, that limit will depend on the particular watercourse, and what use is made of it by the public.

Upland property owners are also concerned about how the law is evolving. The Provincial Crown generally recognizes an upland property owner’s right to have unobstructed access to deep water from their property, and hence has historically required an upland property owner’s consent before giving a lease or licence over adjacent seabed to a third party. That said, the Provincial Crown does not generally regulate anchoring and mooring of vessels, and does not typically issue lease or licences for anchorage and mooring buoys. As a result, there are many cases where neither the Federal Crown, the Provincial Crown nor a local government regulate anchoring/mooring in an area. Many desirable bays have become congested with vessels whose owners store the vessel for longer than a “reasonable time, for a reasonable purpose,” impeding other’s use of the waterway, including upland property owners.

In closing, while writing this article I came across the following post in a boating blog: “In BC, the government told me they don’t give water lease for private moorings, so anyone is free to use any mooring they please, legally. I certainly do, after giving it a good shot of reverse to check it out”. This post highlights an interesting misunderstanding held by many people, and why the right of anchoring/mooring can at times be a paradox. Firstly, the Province does not issue leases for mooring buoys, but this does not mean that a mooring can be placed on Crown land (seabed) other than for a “reasonable time, for a reasonable purpose” without it being trespass. After all, that anchor or buoy, if left for an unreasonable time or an unreasonable purpose, is utilizing common property and depriving others of such use. Secondly, arguably that mooring buoy is the personal property of an individual, and attaching an unauthorized vessel to it is trespass to that person’s personal property. The paradox is that, at the same time, that buoy may be trespassing on Crown seabed. This begs the question – who is less in the wrong: the person trespassing on another’s buoy, or the owner of the buoy trespassing on public property? These are issues that can only be answered definitively once the courts have considered them.

Darren Williams is the principal lawyer at League and Williams and leads the personal injury, estate dispute and marine law practices of the firm. This article was previously published in the August 2016 edition of Western Mariner. He can be reached for comment at info@leaguelaw.com or 250-888-0002. League and Williams offers free consultations.

December 16, 2016
ICBC Claims: Accident Benefits, Does it Matter Who is at Fault?

Most people’s livelihoods depend on their ability to get from home to the workplace, and back again, and many people are affected by accidents that occur while on a roadway, either as a motorist, a cyclist or a pedestrian. In this blog post I will provide an overview of the accident benefits available to people injured in a car accident in BC through ICBC claims.

ICBC Claims Accident Benefits – Does it Matter Who is at Fault?

The simplest way to explain how motor vehicle ICBC claims are handled is to divide them into two categories: (1) accidents that you are at fault for, and (2) accidents that someone else is at fault for. When you are injured in a vehicle accident that is your own fault, the Insurance (Vehicle) Act requires ICBC to pay you minimum mandatory benefits regardless of your fault for the accident. These are called “no-fault benefits”. On the other hand, when you are injured and someone else is at fault (even partly) you can claim no-fault benefits, but importantly, you can ALSO claim under the other driver’s insurance policy for any compensation that is not provided by your own “no fault benefits”. These ICBC claims against the other driver are called “tort claims”. This is an important difference because the benefits provided by your own no-fault insurance (as described below) are minimal compared to the benefits you are entitled to from the insurance policy of the other driver by making a tort claim.

No-Fault Benefits in BC

Your No-Fault Benefits: No-fault benefits are available to you even if you cause an accident, for example, you slide off the road and crash into a tree and break your leg, or you rear-end someone and hurt your neck. No-fault benefits are provided to anyone who is injured as a result of the “operation of a motor vehicle” in BC, whether they are in the vehicle or not (you might be a pedestrian or a cyclist struck by a vehicle). However, in order to qualify for no-fault benefits you must either have a B.C. driver’s licence or live with someone who does. At law, ICBC must provide up to $150,000 in no-fault benefits. Sounds good, right? Unfortunately, no-fault benefits are more limited than they sound and are restricted to two primary forms: temporary wage loss supplements, and partial rehabilitation benefits.

If your injuries cause you to lose time at work, no-fault benefits only pay up to (a maximum of) $300 per week of lost wages. However, they will only pay this if all other sources of income replacement (EI, CPP, short or long term disability) have not already replaced 75% of your pre-accident income. For example, if you were making $1,200 per week prior to the accident, and after the accident your short term disability was paying you $800 per week, ICBC would only pay you an additional payment of $100 per week, for a total of $900 per week. In many cases, this shortfall makes it tough to pay the mortgage, buy groceries and cover other family expenses. Also, this temporary wage loss replacement only lasts for 104 weeks before it is permanently terminated.

In addition to some temporary wage loss replacement, no-fault benefits also provide limited rehabilitation expenses (again, part of the global $150,000 cap on no-fault benefits). These expenses are largely at the discretion of ICBC, although, they are intended to be funded whenever “medically necessary”. Rehabilitation expenses may include physiotherapy, massage, chiropractic and other medical treatments. No fault benefits also provide funding for an injured person’s inability to care for themselves (nursing care) as well as caring for their household (for example, yard work). Obtaining approval for payment of these benefits can be difficult and where they are improperly denied, the only recourse is to sue ICBC for breach of your no-fault benefits. Unfortunately, this is common.

Benefits When the Other Driver is At-Fault

Your Tort Claim: a “tort claim”, refers to the ability to sue someone for your losses caused by their negligence. In a motor vehicle accident caused by another driver, or at least partly caused by another driver, you have a tort claim against them (which their insurance will cover) to the extent they are at fault. The amount of compensation available to you will depend on the extent of your injuries, what effect they have on your life, and the amount of insurance carried by the other driver. Most drivers carry at least $1,000,000 in insurance (per collision). However, if a person owns significant assets (such as a house) in the same name as the vehicle driven by them, I recommend carrying at least $2,000,000 in insurance for the additional cost of about $75 per year.

Importantly, in a tort claim the types of compensation you can claim are not limited by the same categories as under your own no-fault benefits. Remember, you are suing the other driver for their negligence (which is why they have insurance in the first place), and you are entitled to be put in the same financial position you would have been in had the other person not injured you. As a result, you are entitled to payment for all of your lost wages, your medical expenses, your future loss of earnings due to disability, as well as the pain and suffering for the general effect that the injuries have on your life. While the prospect of going to court often deters people from making a claim, it should be known that most people are able to get fair compensation through negotiation and more than 95% of cases settle out of court.

Darren Williams is the Principal Lawyer of League and Williams (LaW) and has handled over 1,200 motor vehicle claims for injured parties in 15 years. He is a lawyer specializing in injury law, estate disputes and marine law at League Law Corp, in Victoria, B.C., Canada and can be reached for comment at info@leagueandwilliams.com or 250-888-0002.

November 4, 2016
The Dog Got Us Sued: Liability for Acts of Dog (Video Blog)

The Legal Liability for Dogs

This week we are talking about legal liability for dogs. That is, if a dog injures someone or causes property damage, what are the consequences, and how can they be reduced, or even avoided entirely? This discussion applies to both dogs that you might own, but also dogs owned by others that might be under your care, or even simply because they are on your property. Dog owners can be very passionate about their dogs, and sensitive to the criticism of others, much like someone would be about their own children. Indeed, dogs are not only our best friends, they are members of our families.

This blog is not about any particular breed of dog, or how their owners train or care for them. Indeed, every breed of dog can be completely harmless, and also quite dangerous, depending on the circumstances. Rather, this discussion is about how the law may hold the owner of ANY dog responsible for injury, death or damage caused by a dog, and why having insurance is critical.

Three Ways the Law Holds People Accountable for Dogs

There are three principle ways that the law holds people responsible for harm caused by a dog.

The first is under general negligence law. This means that if the behaviour of the dog could cause foreseeable harm to others, the person whose control the dog is under has a responsibility to prevent the harm. This is true regardless of the ownership of the dog, or the location of the dog. For example, if you take a friend’s dog to an on-leash park, you let the dog off the leash, and the dog knocks an elderly person to the ground breaking their hip, you will likely be responsible for their injuries.

The second ground on which you may be legally responsible for injury caused by a dog, is if it occurs on property controlled by you. This is because in BC, a person who controls property must take reasonable steps to ensure activities conducted on the property do not pose unreasonable risks to others on the property. For example, you decide to host a backyard barbecue and invite all your friends to bring their dogs. You might know some of the dogs don’t get along but you hope for the best. During the barbecue a dog fight ensures, and a guest is badly bitten, suffering nerve damage and they are unable to use their dominant hand to work. Even though you don’t own the dog, because of your duty to ensure people are reasonably safe in using the property, you may be responsible for the injuries.

The last legal basis for liability is based on an old legal maxim called scienter – which is Latin for, essentially, knowledge of poor behaviour. Scienter means that if you own a dog, the dog has demonstrated a dangerous behaviour previously, and you knew that it had, you may be liable if that behaviour hurts someone. For example, a dog owner is aware their dog likes to chase motorcycles because they have seen the dog chase motorcycles. One day the owner forgets to tie the dog up and it chases another motorcycle and the motorcyclist loses control and is badly injured. The dog owner would likely be entirely at fault for the accident.

These are all tragic, but entirely realistic scenarios.

How can dog owners reduce their legal risk?

So, besides having your dog under a degree of control that is appropriate for the circumstances, what can dog owners do to reduce their legal risk? The answer is: insurance. Many people don’t know that their homeowners insurance policy includes $1 million in liability insurance that will pay for a legal defence and any money that they have to pay as a result of injury or damage caused by their dog. This is true even if the accident happens when you and your dog are away from the property, such as at the park. The same is true of renter’s or tenant’s insurance policies, and such insurance often only costs about $35 per month. In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were made as a result of a dog causing injury or property damage. In the last several years the average value of dog related insurance claims has been $35,000 and $50,000. Obviously, no dog owner wants to be responsible for this type of debt. If you are not a homeowner or renter, or a family member living with someone who is, you likely do not have liability insurance if your dog gets you sued. However, you can buy separate liability insurance. Any insurance broker can help you with this.

In closing, if you are a dog owner, regardless of the breed, the responsible thing to do is ensure you have insurance to protect you, and any person that might be injured by your dog. Rarely does any dog intend to cause any harm, but unfortunately the intent of a dog matters not when you are the one being sued. I hope you found this blog helpful and thank you for watching.

We hope you have learned something from this week’s video blog. Please feel free to like us on Facebook, follow us on Twitter, or subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002. If you are injured and would like a free consult, give us a call. We are here to help injured parties get the fair compensation that they are entitled to.

October 11, 2016
Video Surveillance and ICBC Injury Claims – Fair Game or Foul Play?
Insurance adjusters and defence lawyers alike will often attempt to prove that the injured person is not really as injured as they are claiming, and video surveillance may be used as a tool in support of this defence. Injury claimants are subject to scrutiny and it is an unfortunate reality that some injury claimants will be videoed while going about their day-to-day business after making an injury claim. Sadly, those who are most severely injured with potentially large claims are also most likely to have the insurer use video surveillance in their case.

Video Surveillance: What is Fair Game and What is Foul Play after an Injury Claim?

There are several standard defences to personal injury claims that are considered by insurance adjusters and defence lawyers in every injury claim they handle. One of these standard defences is to say that you are not really as injured as you or your doctors say you are, or in some cases, to even claim that you are not really injured at all. In more serious, complicated and contentious injury cases, video surveillance is occasionally used as a tool to prove this defence. The law in BC provides that if you are in public view, and not in a place where you would expect to have privacy, this type of surveillance is permitted.

For example, it is lawful to take video of someone as they are lifting groceries out of their trunk in the grocery store parking lot, or chopping wood in their front yard. On the other hand, it is not lawful to take video of someone when they are in the privacy of their living room or within their private backyard.

Injury Claimants should Expect Some Scrutiny after Making a Claim

It is true that when you make an injury claim, you are, to a certain extent, opening up your life to scrutiny. Medical records, employment files, and school transcripts may be disclosed and examined as part of proving your claim, but being videoed is an intrusion into privacy of an entirely different sort.

Dos and Don’ts after an Injury Claim

If you have an injury claim and think that you may be surveilled, the best course of action is to carry on living your life as best as your injuries allow:
- Do not to take risks or expose yourself to physical strain that may worsen your injuries,
- Do not exaggerate your injuries,
- Do not undertake activities your doctor has advised against, but;
- Do your reasonable best not to allow your injuries to interfere with your normal life.
The common purpose of surveillance is to capture someone doing something they said they couldn’t do. It’s important to remember that video surveillance footage is taken only in the most serious or contentious cases. Even when it is taken, it is often not used in court. This is simply because almost all people with personal injury claims are honest about their injuries and disabilities.

If you’ve been truthful with those supporting you through your injury and recovery, such as your employer, your doctors, and your lawyer, then there is little that video surveillance can capture that is likely to be damaging to your case.

We hope you have learned something from this week’s video blog. Please feel free to like us on Facebook, follow us on Twitter and subscribe to our YouTube channel to receive notice of our future weekly video blogs on the law. League and Williams is a Victoria, BC based law firm with expertise in injury law, estate disputes and marine law and may be reached via email at info@leaguelaw.com or phone at 250-888-0002. If you are injured and would like a free consult, give us a call for a free consult. We are here to help injured parties get the fair compensation that they are entitled to.
September 30, 2016