League and Williams Lawyers

Category: Video Blogs

  • You signed a waiver, but did you say goodbye to your right to sue in BC?

    You signed a waiver, but did you say goodbye to your right to sue in BC?

    A waiver (or release) is an incredibly common and powerful clause.  Hardly a day goes by without coming across one or more of them.  Getting on a chairlift or a ferris-wheel, parking a car, or even leaving clothing at a dry cleaner often involves agreeing to a waiver.  A waiver is an agreement not to claim for damages caused by someone else’s carelessness.  They are often effective in avoiding liability, however, under certain circumstances they will not be enforceable.

    Agreeing not to sue

    The core purpose of a waiver is to promise not to sue for any injury, death or property damage arising out of an activity.  This includes not suing for loss caused by the clear negligence of another person.  In British Columbia, claims against businesses and activity operators are barred as a result of an agreed upon release.

    Insurance companies like releases because they reduce the number of claims they have to pay because they reduce the likelihood their insured will be successfully sued.  

    Businesses like releases because they reduce the cost of their insurance.  If a business cannot get liability insurance, a well-drafted and presented waiver enables a business to avoid legal responsibility for negligence of the business and its employees.

    The idea that a person may be badly injured by the obvious negligence of another, and be without legal recourse is frightening. However, just because a person has signed a release, does not mean that the waiver will be enforceable (effective).  In order to be effective, the waiver must meet specific legal tests.  If the waiver fails to meet these requirements, a person or business may still be successfully sued.

    The legal tests waivers must meet to be effective

    Many releases are enforceable, such as the one upheld in a recent case (Loychuk v Cougar Mountain Adventures Ltd.).  However, for a waiver to be upheld, it must meet several legal tests.  In general, the waiver must meet the following three tests:

    1. Must actually apply to the facts of how the accident occurred;

    2. Must not be unconscionable; and,

    3. Must not be against public policy.

    1. A waiver must apply to the facts of the accident

    Waivers must apply to the facts of the accident. To meet this test, the court considers whether the terms of the waiver included a description of the risks that caused the person’s injury.  A release only covers risks considered at the time the waiver is signed or accepted.

    The cause of the injury that the release seeks to avoid legal responsibility for, must be clearly described in the waiver; and, be generally foreseeable by the parties. For example, if you are skiing it is likely in your mind you might ski off a poorly marked trail and injure yourself. It is foreseeable to be injured in an avalanche that could have been prevented. However, being shot by an employee carelessly handling a firearm would not be foreseeable.  You would also not imagine that poor practices in the ski lodge would result in food poisoning.  Events that are not foreseen, are not covered by a waiver.  

    Waivers must use clear language to be effective.  The courts will consider whether the participant actually understood what they signed.  A signed release is assumed to have been read and understood.  However, being told to sign a release in a hurried or casual manner; or, failing to give adequate time to read and understand the release will result in the waiver being ineffective.  This is because the service provider knew or should have known that the participant was unaware of the legal or practical effects of signing the waiver.  Service providers and businesses must take reasonable steps to advise those who are signing waivers, even though there are no special obligations to ensure people have understood what they have signed.

    2. A waiver must not be unconscionable

    Secondly, a valid waiver must not be unconscionable.  In other words, even if the release applies to the facts of an accident, the court may find the waiver unenforceable because it is unconscionable.  A release is unconscionable when a person has abused their power to get the release signed and then relies upon the waiver. 

    That said, participants almost always have the choice between agreeing to the release and participating, or not participating at all.  Courts uphold releases even in cases where the participant travels long distances to participate in an activity, only to find that if they don’t accept the release they will be turned away.  The courts do not generally view inconvenience suffered by a person because they cannot partake in an activity unless they sign a release as an inequality in bargaining power that makes signing the waiver unconscionable.

    3. A waiver must not be against public policy

    The third main requirement of a valid release is that the waiver must not be against public policy.  That is, the waiver cannot be contrary to the interests of the general public as a whole.  In BC, courts have rarely exercised the power to overturn a waiver because of public policy.  Releases in adventure tourism activities, for example, generally do not give rise to public policy concerns because, by definition, these activities have inherent risk and people generally expect some risk.

    Many activities with reasonable care of the business, should be low risk.  A court might find it is against public policy to enforce a release where doing so discourages routine safety practices.

    When in doubt seek legal advice out

    Properly drafted and presented waivers can provide business owners with strong legal protection from claims.  Business owners should seek legal advice to draft the waivers they use to ensure they can be relied upon if and when needed.  

    Those injured should never assume a signed release provides a complete bar to suing for damages. Injured victims should seek out legal advice before assuming they cannot claim fair compensation. This is particularly true in cases where there has been significant injury, property damage or death.  Under those circumstances, it is not unreasonable to ask a judge to decide whether the release is enforceable.

    If you have a question about this topic or another legal issue, contact us for a legal consultation.  Reach us at 250-888-0002, or via email at info@leaguelaw.com.

  • ‘Tis the Season – Holiday Parties and the Law

    ‘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

  • Acts of Dog & the Law in BC: Risk & Responsibility

    Acts of Dog & the Law in BC: Risk & Responsibility

    Personal Injury & Property Damage – Who Fetches the Bill for Acts of Dog?

    What are the legal and financial consequences when a dog injures somebody or causes property damage?  What can dog owners do to reduce or avoid those consequences?  Those are the questions being answered in this week’s blog on the acts of dog.

    It’s important to note that when it comes to legal responsibility for an act of dog or the resulting dog claim, it applies not only to dogs that you own, but also dogs the are under your care or even those dogs that are on your property with your permission.  Dog owners can often be sensitive to the criticism of others, not unlike how some are sensitive to criticisms of their children.  After all, dogs aren’t just man’s best friend – they are often valued as members of our families.

    This blog is not about any specific breed of dog, nor is it about how their owners train or care for them.  Any breed of dog can be either completely harmless or dangerous, depending on the circumstances.  This blog discusses how the law can hold a person responsible for injury, damage or death caused by a dog, and why having insurance is critical. 

    3 Ways People are Held Accountable by the Law for Acts of Dog

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

    • General Negligence Law
    • Occupiers Liability Law
    • Scienter

    General Negligence Law

    General negligence law requires that if harm to others from the behaviour of the dog is foreseeable, 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 a person takes a friend’s dog to an on-leash park, and lets the dog off the leash, and the dog knocks an elderly person to the ground, breaking their hip, the person borrowing the dog will likely be responsible for the injuries caused.  It wasn’t their dog, it wasn’t their property, but because they had control of the dog at the time, it is their responsibility.

    Occupiers Liability Law

    The second way that the law holds people legally responsible for the acts of a dog is when the damage 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 their property do not pose unreasonable risks to others on their property.  For example, a person decides to host a backyard barbecue and invites all of their friends to bring their dogs. It is reasonable to think that some of the dogs won’t get along, but none the less, the person hopes for the best. During the barbecue, a dog fight ensues, and a guest is badly bitten, suffering nerve damage to their dominant hand.  They find themselves unable to work as a result.  Even though it was not the property owner’s dog that did the damage, because of the property owner’s duty to ensure people are reasonably safe in using the property, the property owner may be held responsible for the injuries.

    The Law of Scienter

    The last legal basis for liability is based on an old legal maxim called scienter – which is latin for, knowledge of poor behaviour.  Scienter means that if the dog has demonstrated a dangerous behaviour previously, and the owner of the dog knew about, the owner 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 and held responsible for the resulting injuries.

    How to reduce the risk of acts of dog?

    These are all tragic, but entirely realistic scenarios.  Given this, what can a dog owner due to ensure that man’s best friend doesn’t do serious financial damage?  First, dog owners should take care to have their dog under a degree of control that is appropriate for the circumstances.  Second, dog owners should ensure that they are properly insured for the risk that their dog could cause injury or property damage.

    Many people don’t know that their homeowner’s insurance policy includes $1 million in liability insurance.  This insurance will cover a person’s costs for a legal defence, as well as any money that is needed to pay for the damages caused by their dog.  This is true even if the accident happens when they and the 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 costs around $35 per month.  In the last 10 years, approximately 25% of all claims made under homeowner’s and renter’s insurance policies were due to a dog causing injury or property damage.  In the last several years, the average value of a dog related insurance claim has been between $35,000 and $50,000.  Obviously, no dog owner would want to be responsible for this type of debt.  So, being covered by this kind insurance is wise, and can be bought separately if needed.

    In closing, dog owners, regardless of the breed, should do the responsible thing by ensuring they’ve reduced the risk by exercising reasonable care and control of their dog and by being appropriately covered by insurance.  Rarely does any dog intend to cause any harm, but unfortunately, the intention of a dog matters not when a dog owner is being sued for damages.  I hope you found this blog helpful and thank you for reading.

    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 serves clients across British Columbia and is headquartered in Victoria, BC.  Our expertise is in injury law, estate disputes and marine law.  If you are injured and would like a free consultation, contact us via phone at 250-888-0002 or via email at info@leaguelaw.com.  We are here to help injured parties get the fair compensation that they are entitled to.

  • Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Disinheritance and Deception – Disputed Estate Goes to the Supreme Court of Canada

    Bargaining for Elder Care – the Promise Made

    There were three adult children, Gloria, Max and Nate – each of whom had been promised a third of their parent’s estate including the family home by their father.  As is common, when their father died, everything was left to their mother.  As time went on, the mother was eventually unable to care for herself at home.  Wanting to keep their mother in her home, Gloria, unwilling or unable to care for their mother herself, made a deal with her brother, Max: if he moved back to Victoria, BC, Canada from England to care for their aging mother until her death, that she would agree to sell to him her expected one third interest in the family home, a home that had been built by their father some 60 years earlier.  The home having special meaning to Max, Max packed up his life and made the move, caring for their mother until her death three years later in 2010.

    Deception, Death & Disinheritance – a Recipe for an Estate Dispute

    Gloria held sway with their mother – so much so, that upon their mother’s death, Gloria revealed that their mother had transferred all of her assets to a trust of which Gloria was the only beneficiary.  Gloria’s actions resulted in the entire disinheritance of both brothers, betrayed by a sister who used her influence over their mother to exclude them from the estate. To make matters worse, Gloria then proceeded to refuse to sell to Max the interest in the family home, breaking the pledge she had made to him.

    Dismayed, Max sought to right the wrong that had been done and disputed the estate – suing not only for his fair share of the estate from the disinheritance but, also to hold his sister to the promise she had made to sell Max a one third of interest in the family home.

    Uncertain Certainties and the Law – Promises and Probabilities

    The disinheritance went to trial and the trial judge found Max’s sister had exerted undue influence over her mother in causing the mother to put all of her assets in her daughter’s name.  As a result, the judge ordered all of the assets back into the mother’s estate, and divided the estate equally into thirds.  Importantly, the trial judge also found that Max’s sister had to make good on her promise to sell her one-third interest to Max, because although the sister did not own the interest in the home when she made the promise, it was reasonable for Max to expect that Gloria would after their mother died. 

    In holding Max’s sister to her promise, the trial judge found the key components of “proprietary estoppel” were met:  there was a promise by the sister, that Max reasonably relied on, that was unfairly broken and caused Max detriment.  However, Max’s sister appealed to the BC Court of Appeal, and two of three judges found that Max’s sister could not be held to her promise because she didn’t own the one-third interest in the home at the time she made the promise, and it was not “certain” that she ever would.

    Is it reasonable to require certainty when making a promise about something that a person does not own at the time the promise is made (but is likely, but not certain, to own in the future)?  Are contingent promises valid – or are those who rely on them without recourse if the promise maker reneged?  These questions merited an appeal to the Supreme Court of Canada, which heard the case on May 26, 2017.  

    The Argument Before the Supreme Court of Canada

    League and Williams’, Darren Williams appeared before the 9 judges of the Supreme Court of Canada to argue the case on Max’s behalf.  Mr. Williams argued that the BC Court of Appeal was wrong in insisting there be absolute certainty in the sister’s ability to make good on the promise.  What followed was a lively debate with the 9 justices on the level of probability needed in order for a person to be held to the promise that was made.  Does the outcome of the promise have to be as certain as death or taxes?  Or is reasonable probability enough?  

    The decision of the Supreme Court of Canada is expected in the fall of 2017.  Those who are making contingent promises and those who are relying on those same promises should look forward to the clarity this case may bring to this area of law in Canada.  This blog will be updated once the decision is issued.   

    Have an estate dispute?  The lawyers at League and Williams are here to help and will fight for your fair share of an estate.  We serve clients across British Columbia, offer free consultations and do not get paid until you do.  We may be contacted at 250-888-0002 or via email at info@leaguelaw.com. If you have suffered an unfair disinheritance, do not delay, it could cost you your fair share of an estate. 

  • Parents Beware: ICBC child injury claim – the need to knows

    Parents Beware: ICBC child injury claim – the need to knows

    There is a common mistake made by people when dealing with an ICBC child injury claim.  The mistake is about when a minor, that is someone under the age of 19, loses the right to claim for ICBC benefits after an accident.  Many people know that after a car accident, ICBC must provide rehabilitation benefits and a partial wage loss replacement.  These benefits include payment of some chiropractic and physiotherapy treatment, and wage loss benefits of up to $1,200 per month.  These are called “no fault” benefits because a person is entitled to them even if they were at fault for the accident.

    Many people also know that if they have been injured as a result of someone else’s fault, that they have two years to start a court action to preserve their right to be compensated for the injuries.  This is called a limitation period.  In BC, the Limitation Act provides, in simple terms, that a person has two years from the day they discover they have been harmed to start that court action.  In most accident cases, like car accidents, this is from the date of the accident because that is the date it is obvious you have been injured

    Importantly, the Limitation Act also provides that for a minor, again in BC that is someone under the age of 19, their limitation period of two years does not start to run until their 19th birthday.  This is because a minor is under what is is called a “legal disability” and their right to sue cannot be prejudiced while they are a minor.

    Many people do not know, however, that a two year limitation period also applies in respect of the right to make ICBC pay for no fault benefits.  That is, if ICBC has refused to pay for no fault benefits, perhaps because they believed the injuries were not caused by the car accident but rather from some other event, then there is only two years from the date of the accident or the last day ICBC paid benefits, to preserve the limitation period by filing court documents.

    Importantly, when it comes to an ICBC child injury claim, the same rule that the running of a minor’s right to sue for compensation doesn’t start to run until their 19th birthday, does not apply to no fault benefits.  In other words, a minor, even someone who is 10 years old for example, must sue ICBC within two years of the accident date or the last day they received no fault benefits, or their right to those benefits will be forever lost.

    Parents of children injured in an motor vehicle accident should bear this in mind when making their ICBC child injury claim, because parents are responsible to protect the legal rights of their children.

    I hope you have learned something about the law from this 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.  If you, or someone you care about has been involved in a car accident, contact us at 250-888-0002 or via email at info@leaguelaw.com for a free consult. We do not get paid until you do and are BC injury law experts.

  • Slow Down and Move Over, It’s BC Law (video blog)

    Slow Down and Move Over, It’s BC Law (video blog)

    Slow down and move over – It’s a matter of safety

    Despite slow down and move over being the law since January 2015, many people still forget that the BC Motor Vehicle Act requires people approaching any official vehicle parked on the side of the road to slow down and, if safe to do so, move into a lane away from the official vehicle.  This law is important because motorists often find themselves approaching official vehicles parked on the side of the road, and even split second inattention when passing a vehicle closely, can lead to tragic consequences including serious injury and death.

    Indeed, in the last 10 years, more than 250 people working on the side of the road, including police officers and paramedics, have been struck while helping others and more than a dozen have lost their lives as a result.  So, I would like to help clear up some common points of misunderstanding about this law.

    When does the slow down and move over apply?

    First, the slow down and move over law applies to all “official vehicles”, not just police, fire, and ambulance.  Official vehicles include tow trucks, highway and municipal maintenance trucks, Commercial Vehicle Safety Enforcement vehicles, park ranger and conservation officer vehicles, utility vehicles, land surveyors, animal control vehicles and garbage trucks.   As a rule, when you see a blue, red, or even a yellow flashing light, you should assume that vehicle is an official vehicle and the slow down and move over law applies.

    What does slow down and move over mean?

    The law requires people to slow down, and also move over if safe to do so.  These requirements apply particularly to those people approaching in the lane that is closest to where the official vehicle is parked.  However, it also applies to vehicles traveling on the side of the road opposite to where the official vehicle is parked, if there is no median in the middle of the road, and if the side of the road closest to where the official vehicle is parked only has one lane.

    Also, importantly, the requirement to slow down is that if the speed limit in the area is 80km/h or above, such as 110km/h, you must slow down to below 70km/h, and if the speed limit is below 80km/h, you must slow down to at least 40km/h.  This is often referred to as the 70/40 rule.

    Lastly, the requirement to move over applies only if it is “safe to do so”.  For example, when you’re traveling in a lane closest to the official vehicle and there is a second lane going in the same direction, you must pull into that inside lane unless it is unsafe to do so.  What is safe, will obviously depend on the specific circumstances of each case.  For example, there might be a car next to you in that inside lane, but that does not necessarily make it unsafe to move over. It is likely appropriate to slow down to allow the car next to you to pass to create room for you to move over to the inside lane.

    Also, if there are only two lanes in the roadway, both going in opposite directions, you must pull into the oncoming lane of traffic if it is safe to do so, in other words, if there are no oncoming cars.

    What are the consequences for not slowing down and moving over?

    I’ve seen numerous people been ticketed for failing to comply with the slow down and move over law. Many of them caught on dash cameras.  The resulting fine is $173, and importantly there are three driver penalty points assigned to your license.  You may know that if you earn more than 3 points in one 12-month period, ICBC will force you to pay a driver penalty premium.  This premium is in addition to any other ICBC premiums you might pay, and can be collected from you even if you don’t insure a vehicle with ICBC.  For example, a person who is given 6 driver penalty points in a 12-month period will pay an additional $300 in penalty premium, and a person who earns 10 driver penalty points, will pay an additional $905 in penalty premium that year.

    The financial consequences aside, clearly slowing down and moving over is the right move.

    I hope you have learned something about the law from this 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.

    Darren Williams is the principal lawyer at League and Williams Lawyers where he leads the injury law practice.  He has more than 16 years of experience working in BC injury law and has the knowledge and experience to get results.  League and Williams Lawyers offers free consultations and may be contacted at 250-888-0002 in Victoria, 250-746-0002 in Duncan, 250-591-1056 in Nanaimo and 250-914-4529 in Campbell River or via email info@leaguelaw.com.

  • Parental Liability in BC – Kids and Consequences

    Parental Liability in BC – Kids and Consequences

    Who’s Legally Responsible when a Child is to Blame?

    Parents usually try to teach and encourage their children to take responsibility for their own actions.  But when those actions lead to property damage or other losses, who does the law hold responsible?  Is it the child that is legally responsible or is it the parents?  What is the law of parental liability in BC?

    The common law in Canada doesn’t prevent civil claims from being brought against minors, but children, especially younger ones, aren’t usually all that likely to be held responsible.  Their actions will be viewed against what might be expected of children the same age.  Even if a court did find a child liable, there would rarely be much point in bringing the case in the first place.  When a civil lawsuit is started, the goal is usually to ask the court to award damages, or money, that would compensate for the loss that occurred.  Not many kids are going to have enough Lego to pay off a judgment.

    A child’s parents on the other hand, may very well have substantial assets, but are they legally responsible for their children’s actions?  The answer in most of Canada is no, however, the law in British Columbia is different.  The Parental Liability Act holds parents responsible for intentional loss or damage caused by their children up to a limit of $10,000.  Parents won’t be responsible if they can show they supervised the child and discouraged the behaviour, making court cases under this law very rare.  Claims have been started for reasons such as a stolen computer and for stealing from and then vandalizing a house.

    The BC School Act – Offers Hard Lessons on Parental Liability

    Parents in BC ought to be much more concerned with the School Act, that says that parents will be held responsible for the damage caused by their children to school property, whether that damage was intentional or not.  The parent’s own actions are not a defence and there is no dollar limit. Thankfully, this too has led to very few cases in the courts.  The consequences of those cases have been very harsh, however, for the families involved.  In one case several teens went joyriding in 1993 before setting a car on fire on school grounds.  The fire ended up causing $3 million dollars worth of damage.  The court of appeal held the teens’ parents responsible.  More recently, a student played a prank that unintentionally caused the fire sprinklers to go off in his school.  While this incident was far more of an accident than the previous cases mentioned, the incident caused nearly $50,000 in damage and the parents were ultimately responsible for the clean up costs.

    While the courts have recognized that the effect of this legislation is draconian and can place an enormous burden on parents who may be blameless themselves, this remains the law in BC.  If you have children, this is just one more reason to make sure you have sufficient home or rental insurance to make sure your family isn’t devastated

    To see more of our video blogs you can follow us on Twitter, like us on Facebook, find us on LinkedIn and visit our YouTube channel.

    Andrew Broadley is an associate lawyer at League and Williams who practices in the areas of estate litigation and personal injury.  If you have a personal injury you would like to discuss, we offer free consultations and may be contacted through our offices at 250-888-0002 or via email at info@leaguelaw.com.

  • Contributory Negligence: When ICBC blames the accident victim (Video Blog)

    Contributory Negligence: When ICBC blames the accident victim (Video Blog)

    Why does ICBC often blame the accident victim?

    A concern that some people have after being in a car accident is being found at fault, or partially at fault, for their accident.  Sometimes, fault lies with multiple parties.  A common approach used by ICBC and injury defence lawyers is to try to avoid 100 percent of responsibility for the injuries sustained by saying that the injuries the victim has suffered were caused by the victim’s own negligence.  This is called “contributory negligence” and means that accident victim’s actions, or inactions, may have contributed to the cause of the accident, and therefore the injuries suffered.

    Contributory Negligence: What does it mean?

    To rely on this defence, ICBC or a defendant in a personal injury trial must show that the accident victim acted in a manner that was not to the standard of how a reasonable person in the same circumstances would act.  For example, another driver may have rear-ended the accident victim and be at fault for doing so, but the other driver might allege you sat at a green light while you finished a text, and therefore were unreasonably blocking the expected flow of traffic.

    If the accident is reasonably foreseeable, and a choice was made to ignore the risk and the accident victim’s own behavior contributed to the cause of the accident, the accident victim can be held contributorily negligent for their own injuries.

    However, the law does not require that a person act perfectly.  It is not enough that an accident or injury was foreseeable in hindsight.  For ICBC or a defendant to rely on contributory negligence, they must show that the level of care exercised was less than what a reasonably sensible person would have done in similar circumstances.

    In the example I mentioned above, obviously a person should not be texting at a stop light.  Indeed, no driver should be handling their electronic devices while operating a vehicle at all.  It is likely that a person doing so might be found to be contributorily negligent.

    What happens to the personal injury claim if the accident victim is found contributorily negligent?

    The law regarding contributory negligence in BC comes partly from the BC Negligence Act.  This Act states that each party is responsible for damages in proportion to their degree of fault for the accident and the resulting injuries.

    The Act also provides that if it is not possible to establish fault on any party, liability (or responsibility for the accident) will be divided equally, that is, 50/50.   If three cars are involved in an accident and the relative fault of each driver cannot be determined, the court would split fault in thirds, if four, then it would be quarters.

    To illustrate these situations, imagine a scenario where a person turns left at an early yellow light and collides with the ongoing car.  At trial, the judge finds the accident victim is entitled to $100,000 for the injuries and lost wages sustained, but the judge also finds that the accident victim is 25 percent at fault for causing the accident.  In this case the judge would reduce the award by 25 percent.  This is the practical effect of contributory negligence, it reduces the amount of the damages the other parties are responsible to pay to the victim of the accident.

    Whether being blamed or not, seeking legal advice is wise

    If a person is injured, whether or not they are being blamed by another person for the cause of the accident, seek the advice of a lawyer.  Many, including our firm, League and Williams, will give a free consultation.

    I hope you have learned something about the law from this 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.  If you need legal advice, please contact us by email, info@leaguelaw.com or by phone, 250-888-0002.  We serve clients across BC and are experts in personal injury law, estate disputes and marine law.  Our firm has been rated as one of the three best injury law firms in Victoria, BC by Three Best Rated®.

  • Don’t be Sorry for Saying Sorry – the BC Apology Act

    Don’t be Sorry for Saying Sorry – the BC Apology Act

    What is an Apology and What is the Apology Act?

    Many people know that a simple, sincere apology, can avoid a lot of legal trouble.  Whether you might have caused a car accident, said something defamatory, broken a contract, or perhaps even committed a minor criminal offence, an expression of remorse can go a long way in avoiding a dispute and solving problems.  That is why the law in BC encourages people to apologize by ensuring that if they do apologize, it cannot be used against them as proof they did something wrong.  This BC law is called the Apology Act, and is a very short piece of legislation that very few British Columbians know about.

    The Apology Act defines an apology as:

    …an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

    Legal Consequences of Making an Apology are Limited

    The Apology Act states that an apology made by, or on behalf of a person, does not constitute an express or implied admission of fault or liability by that person.  Importantly, the law provides an apology cannot be taken into account by any court in determining whether a person is at fault for an event.  An apology cannot be used as evidence in court.  For example, if you are in a car accident, and you apologize to the other driver, the other driver cannot raise this apology in court as proof you think you might be at fault for the accident.

    Some people believe that apologizing for an accident can void their insurance coverage.  Generally speaking, insurance policies require people not to prejudice the insurer’s ability to defend them, and if they do, the insurer can avoid providing coverage to that person.  The Apology Act however, provides that an apology cannot void insurance coverage.

    Many people know that if you are in an accident, you only have two years to file a claim in court to preserve your right to compensation.  This is called a limitation period.  In some circumstances, that we discuss in previous blogs, the limitation period can be extended beyond two years.  However, the Apology Act is clear that an apology does not serve to confirm the basis for bringing a claim, or postpone the running of the two-year limitation period.  This means that if someone denies they caused you harm, and then later apologizes for it, your two year limitation period runs from the time they caused you harm, not when they later apologize.

    I hope you have learned something from this 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.  If you have a personal injury, estate dispute or marine law issue – contact us for a free consultation at 250-888-0002 or email us at info@leaguelaw.com.

  • Wrongful dismissal? Legal Recourse in BC (Video Blog)

    Wrongful dismissal? Legal Recourse in BC (Video Blog)

    Welcome to this week’s blog on the law.  This week I will explain why, when you have been fired from your job without good reason, in other words you have suffered wrongful dismissal, you might make a complaint with the BC Employment Standards Branch, or why you might be better off pursuing your claim outside that process.

    Notice or Pay in Lieu of Notice Unless there is Just Cause to Terminate

    Let’s start with some basic principles.  First, an employer may fire an employee for almost any reason, provided they give the employee adequate notice of the termination, and either allow them to work through that notice, or provide them with the pay in lieu of the notice period.  In other words, an employer does not have to keep a person employed if they are unhappy with them, but they do have to pay to get rid of them.  The exception to this general rule is that an employer may not terminate someone for a reason that is discriminatory.  Discriminatory termination is a human rights breach under the BC Human Rights Code.  A decision to terminate someone is discriminatory, whether the employer intends it or not, if the decision is based on the race, colour, ancestry, religion, marital status, family status, physical or mental disability, sex, sexual orientation, or gender identity.  When an employer fails to provide adequate notice or pay in lieu of notice, and there is not “Just Cause”, the termination is considered to be wrongful dismissal.

    We will cover human rights breaches in another blog.

    What is “Just Cause” when employment is terminated?

    Second, an employer may fire an employee for cause, and avoid giving any notice or paying any severance, if the employee’s conduct is so egregious that the employment relationship cannot continue.  This is called termination “for cause”. We will cover what justifies cause for termination in other blogs.

    For now, if an employer does not terminate an employee for a reason that amounts to cause, they are responsible to pay the employee the minimum severance required under the BC Employment Standards Act.  The Employment Standards Act is a written law, or statute, enacted by the BC government, and is enforced by a government agency called the Employment Standards Branch.

    The minimum severance under the Employment Standards Act amounts to one week of wages after three months of service, 2 weeks of wages after 12 months of service, and after three years of service an amount equal to three weeks wages plus an additional week for every year of service after three years, up to a maximum of 8 weeks.

    Employment Standards is Not the Only Option for Recourse from Wrongful Dismissal

    Note that I said the Employment Standards Branch cannot award more than 8 weeks of severance as a maximum.  Many employees who face wrongful dismissal jump to making a claim under employment standards thinking it is their only recourse.  This is not correct.  Outside of the employment standards process, the employee can make a demand for severance based on common law.  Common law does not come from a piece of legislation, like the Employment Standards Act, rather, common law comes from the decisions of judges in courtrooms that have developed over time.

    The common law on wrongful dismissal is generally much more generous than the law under the Employment Standards Act.  As a general rule of thumb, an employee may receive about a month of severance for every year of service with an employer, which is three to four times that provided under the Employment Standards Act.

    The amount of severance paid under common law will vary from case to case, and will depends on a variety of factors, such as the age of the employee, their experience and qualifications, their seniority and generally how difficult it will be for the employee to find a similar job.  Many employees can make a demand for common law severance and negotiate that amount with the employer without the help of a lawyer.  If the negotiation is not successful, the employee can file a claim in BC small claims court, and seek up to $25,000 of severance in that court.  Larger claims must be heard in the BC Supreme Court.

    Larger Wrongful Dismissal Claims Often Benefit from Legal Guidance

    In more serious cases, where the length of employment has been longer, such as more than 4 or 5 years, the employee might seek the help of a lawyer to pursue their claim.  Larger severance claims often result in the employer alleging they had cause to fire an employee, even if they didn’t, just so they can avoid paying the money.  An employer will often put in issue the employee’s competence or honesty, and having an objective advocate to combat these allegations is important and will remove much of the stress from the employee.

    I hope you have learned something from this 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.  If you have employment issues you would like to discuss, League and Williams offers free consultations and may be contacted at either 250-888-0002 or via email at info@leaguelaw.com.