League and Williams Lawyers

Tag: Matthew Melnyk

  • Risk Taker Beware: The Voluntary Assumption of Risk Doctrine

    Risk Taker Beware: The Voluntary Assumption of Risk Doctrine

    What is Voluntary Assumption of Risk or the Volenti Doctrine?

    Today we are going to discuss a common defence used by insurers and defendants in personal injury lawsuits – The doctrine of volenti non fit injuria, or in English, the voluntary assumption of risk.  This doctrine essentially means that if somebody willingly puts themselves in a position where they know injury may result, they are not able to bring a claim against another party.  It is commonly plead together by the defence counsel with contributory negligence, which as discussed in previous video blogs is where the accident victim is found partly to blame for their injuries.

    The volenti doctrine is narrowly applied.  This is because if it is established, it acts as a total defence against a claim.  Despite this, it commonly arises in cases where a person is injured while participating in adventure activities, such as white-water rafting, bungee jumping, skiing or other activities where participants commonly sign a waiver prior to participating.

    What must be proven in order to rely on a Voluntary Assumption of Risk defence?

    To rely on this doctrine, it must be shown that:

    • an injured party was fully aware of the risks involved, both the type of risks and the extent of the risk;
    • the injured party consented to accepting these risks; and,
    • the injured party waived any possible claim for damages.

    This essentially means that a defendant must show an injured party assumed both the physical risk and legal risk involved in an activity. For example, it may be easy to show that a person who breaks into a building, or hops a tall fence to trespass onto private property likely assumed all the risks of that activity.  However, generally this defence is not so easy to prove.

    Waivers are commonly used to support a Voluntary Assumption of Risk defence

    In fact, it is often very difficult to show that a person has assumed the entire legal risk.  A defendant may rely on the implied consent of the injured party to establish this.  That is that the injured party’s actions or words show that they accepted all the risks of an activity.  However, it is much more common for an injured party’s consent to be proven by contract.  For example, before participating in an activity, a person may be asked to sign a waiver or release agreement that expressly limits their right to sue. Another common example is a waiver or release printed on the back of a ticket or posted on a sign at the premises.

    Not all waivers are effective in defending against injury claims

    However, the wording and placement of these waivers and releases is critical. Even if you’ve signed a waiver, if the waiver is insufficient, a defendant cannot rely on this defence.  Whether a waiver or release is sufficient, depends on the specific facts of each case.  If you have been injured, even if you have signed a waiver, it is often wise to seek legal advice about your case. The lawyers at League and Williams offer free consultations and may be reached either by email at info@leaguelaw.com or by phone at 250-888-0002.

    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.

  • 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®.

  • Fixing a Broken Will – What can the court do?

    Fixing a Broken Will – What can the court do?

    Hello and welcome to this week’s blog on the law.  In past video blogs, we’ve talked about reasons why people challenge wills.  Undue influence and unfairness are two common reasons.  A third reason is that the will does not meet the formal drafting requirements for a valid will – that is the will itself is “broken” because it does not meet the three basic requirements in order to be valid.  This blog will discuss what the basic requirements for a will in British Columbia are and what the court can do to fix a broken will.

    What are the 3 basic requirements for a valid will in British Columbia?

    There are 3 requirements for a valid will in British Columbia, these are:

    1.  First, the will must be in writing;
    2.  Second, the will must be signed at the end, and;
    3.  Third, it must be properly witnessed.

    Prior to fairly recent changes to BC law in 2014, if a will was missing one of these key elements, for example, if it was not witnessed, the courts would invalidate the will.  While the courts could invalidate a broken will, they were not, prior to 2014, able to fix a broken will.

    If a British Columbia will fails to meet the basic requirements, can the courts fix it?

    In 2014, the legal framework surrounding wills and estates in British Columbia changed with the introduction of new legislation called the Wills, Estates and Succession Act.  One of the biggest developments contained in the new law was something called a curative provision.  This means that in cases where a will does not fully satisfy the formal requirements, the courts can now cure, or fix, the deficiencies in the broken will and pronounce a will valid.

    What must be done in order for a BC court to fix a broken will?

    In order to be able to invoke these powers to fix a broken will, the court must be satisfied of two things:

    1. First, the court must be satisfied that the document is authentic. Essentially this means the court asks, was this document prepared by the deceased? and;
    2. Second, and most importantly, the court must ask, does this document truly represent the intentions of the deceased.  That is, is it a fixed and final expression of the deceased’s wishes?  Or in other words, did the person making the document mean for it to be their final will?

    The courts, in determining whether a document represents a valid will, will look to a wide variety of evidence.  This evidence includes: the presence of the deceased’s handwriting; whether the will had witness signatures; whether the document revoked previous wills; did the testator include plans for funeral arrangements; and did the testator include specific gifts.

    Want your last wishes respected? Avoid creating a broken will in the first place.

    Since the new laws have come into force, people have creatively tried to prove a number of documents as being valid wills.  These range from handwritten notes on scrap paper, to journal entries, to letters.  Although the courts are given broad power, the further a document departs from the formal requirements of a will, the harder it is for the courts to find it embodies the deceased’s testamentary intention.  In the end, it is always best to seek the advice of a lawyer in finalizing your will.  Failing to do so can mean your final wishes will be ignored.

    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.

    Matthew Melnyk is an associate lawyer with League and Williams.  Matthew practices in the areas of injury law, estate disputes and marine law.  He is a competent lawyer who practices as part of the League and Williams team and may be reached at 250-888-0002 or via email at info@leaguelaw.com.  League and Williams offers free consultations and has built their practice on client satisfaction. 

  • Undue influence: When will-makers are persuaded to disinherit

    Undue influence: When will-makers are persuaded to disinherit


    Undue influence: grounds for an estate dispute

    One of the reasons people challenge or dispute a will in British Columbia, is that the will was either prepared or signed as a result of unreasonable interference, or undue influence, by another person.   For example, the son of a testator might have pressured his parent to give him a larger portion of the family wealth because the son is the oldest child, or because his siblings are less liked or less successful than the son.  The son might use psychological, financial, or even physical pressure to influence the decision of their parent in writing their will.  In estate law, this is called undue influence.  If a court finds the will maker was under undue influence when the will was prepared or signed, the court can cancel or reduce the gift to the person who applied the undue influence.

    Making the case: what needs to be proven?

    Undue influence will not be found simply because someone persuaded the will-maker or testator to make a change to their will that benefits the person who persuaded the testator.  Good or bad, when a person asserts that a will is invalid, because the will maker was under undue influence, they have to prove several things.  The influence must be sufficient that the testator’s judgment or wishes were overpowered.  Undue influence has been described as:

    an influence causing the execution of a will which pretends to express the will-maker’s mind, but in reality does not, and expresses something else which he or she did not really mean.

    Therefore, mere persuasion or advice from an interested person will not suffice in proving undue influence.  The heavy burden of proving that force and coercion destroyed the will-maker’s free will lies with the person who is disputing or challenging the will.

    However, the burden of proof shifts if it can be shown that there was a special relationship between the will-maker and another person who substantially benefits from a will.  This is called the presumption of undue influence.  This type of special relationship arises where: the person was in a position where there was potential for dependence or domination of the will maker.

    This presumption can arise in a large variety of situations.  A common example is where the will maker is a parent who is dependent on one of their children for their day-to-day care.  Once this special relationship is established, it is the person who benefited from the will that has to prove the gift was not made out of undue influence.  If he or she cannot do this, the court can cancel or reduce the gift, or even set the entire will aside.

    I hope you have learned something about BC estate 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.

    Matthew Melnyk is a lawyer practicing with League and Williams in our Victoria, BC offices.  He focuses his estate dispute practice on helping those who have been wrongfully disinherited to successfully challenge unfair wills and estates to ensure his clients get what they are rightfully entitled to under BC law.  If you have an estate dispute issue, contact League and Williams for a free consultation at 250-888-0002 or via email at info@leaguelaw.com. 

  • Focused on What Matters: Our Client’s Interests

    Focused on What Matters: Our Client’s Interests

    Legal procedures and issues can be frustrating and stressful and often get in the way of meeting business objectives or personal goals.  When legal issues are not given the attention to detail they need, or when lawyers fail to listen to their clients and understand the problems they face, the solutions available and their client’s interests, the frustration and stress continue to mount – or a legal solution is provided that fails to resolve the underlying problems or causes other legal problems down the road.  There is far more to client satisfaction than just providing competent legal services.  League and Williams believes that the best results are only possible when the lawyer handling the case is competent in the law, understands and appreciates their client’s situation, and is committed to putting the needs of that client first.  We have demonstrated our legal competency and our commitment to client satisfaction over our many years of effectively handling a wide variety of personal injury claims, estates disputes and marine law issues.  We not only understand the legal system, but also understand our clients and strive to put their needs first.  This is just one of the things that makes League & Williams (LaW) different from other law firms in British Columbia.

    Legal issues take a huge toll on people, both physically and emotionally, and often takes months or years to put lives or businesses back on track after a legal issue arises.  Having a lawyer who can provide trusted advice and help to make decisions that meets your needs is invaluable.  Having a lawyer who is committed to finding the solutions needed goes a long way towards making legal problems less stressful and frustrating.

    For personal injury cases, you can count on League & Williams to serve only your interests as the injured party. We have no hidden agendas! We guide you through every step of the claim process – right through settlement or trial. We educate you about your claim. We keep in close contact with you and work closely with your team of healthcare professionals who are helping you regain your health and wellness.  We ensure our clients are empowered to recover as best as possible from their injuries.

    For estate disputes, you can expect us to help you understand the options available to remedy an unfair will.  We work with our clients to enable a better understanding of what they are entitled to under BC Estate Law and to empower our clients to gain the benefits that they are entitled to from an estate. Then we guide our clients through the process of disputing a will and asking the court to change the will in accordance with the BC Wills, Estates and Succession Act.  We stand by our clients right through settlement or trial.

    For maritime law, you can trust us to identify key issues in this highly specialized area. Regardless if you are a humble boat owner or a major player in the province’s commercial fishing scene, League and Williams will always be there to lend its legal and technical know-how in the province’s maritime law industry.

    Here at League & Williams, we work with the our client’s interests at heart. Give us a call at 250-888-0002, email at info@leaguelaw.com or visit leaguelaw.com/contact-our-lawyers/ for a free consultation.

  • The LaW Team: Personal Injury, Estate, and Marine Law experts in Victoria, BC

    The LaW Team: Personal Injury, Estate, and Marine Law experts in Victoria, BC

    Established in August 2014, Victoria, BC based League and Williams (LaW) provides experienced, effective legal services in the areas of personal injury, marine law and estate litigation across British Columbia. LaW’s legal team of lawyers, and legal assistants led by principal Darren Williams has extensive litigation experience and delivers legal services with compassion and understanding.  The cornerstone philosophy of League and Williams is that clients should be enabled to have the best recovery possible and that fair and just settlements are the result of working collaboratively with the client and their care providers as a team.

    Darren Williams, lawyer & principal

    Darren Williams understands the real impact of the problems faced by his clients and arrives at the best resolution possible by providing an exceptional quality of legal services and advice.  Darren has a commitment and dedication to ensuring that his clients recover as best as possible – both physically and financially.  Darren believes that client satisfaction is the key to building and sustaining a leading personal injury firm in British Columbia.

    Aside from being a skilled personal injury lawyer, Darren also operates the largest maritime law practice on Vancouver Island and has written and published over 100 articles on maritime law issues.  Darren has been invited to speak and has presented on both maritime law and personal injury law issues at a number of conferences and events.

    Andrew Broadley, lawyer

    As a member of the LaW team, Andrew Broadley works collaboratively to ensure his clients receive a quality legal services and advice.  Andrew is committed to serving his clients’ interests, regardless of the legal challenge being faced and is dedicated to delivering results and trusted advice.

    Andrew was called to the British Columbia bar in 2016.  Prior to being called to the bar, he completed his articles under the supervision of Darren Williams, founding partner of LaW.  Previously, Andrew was a successful business owner who managed a chain of automotive service facilities before selling the business to a national chain to pursue the practice of law.

    Andrew practices collaboratively in the areas of personal injury law, and estate litigation.

    Andrew is a member of the Victoria Bar Association, the Canadian Bar Association and the Trial Lawyers of British Columbia.

    Matthew Melnyk, lawyer

    Matthew Melnyk is the newest member of the LaW team, continuing with the firm after completion of his articles under the supervision of LaW principal, Darren Williams in 2016.  Matthew is a hard working and dedicated lawyer who endeavours to work collaboratively with his clients and the rest of the LaW team to deliver the results his clients deserve.  Matthew believes working collaboratively to ensure that clients receive quality legal services and advice that they are satisfied with is key to succeeding in the practice of law.

    Matthew practices collaboratively in the areas of personal injury law, estate litigation and marine law.

    Matthew is a member of the Victoria Bar Association, the Canadian Bar Association and the Trial Lawyers of British Columbia.

    Legal Assistants and Support Staff

    In addition to the lawyers who practice at LaW are the team of legal assistants and support staff who enable our lawyers to deliver exceptional services to our clients.  Every member of the LaW team is detail-oriented and committed to our clients and their satisfaction and works to ensure that every client’s case gets the attention it deserves to get the best resolution possible.