How to Find the Right Lawyer For You

There are many situations where hiring a lawyer is in your best interests. If you are not sure if you need a lawyer, it’s not a bad idea to at least contact one to see if he or she can help (in most cases a first consultation is free). If you feel that you can’t afford a lawyer, you can look into legal aid resources that might be able to help you with your particular situation.

In these instances, hiring a lawyer is essential:

  • You could go to jail
  • You might lose a lot of money
  • You are involved in litigation and your opponent has a lawyer
  • The case involves bodily injury
  • You are involved in a complicated or messy divorce
  • You are doing comprehensive estate planning  or need to administer the estate of someone who died
  • You want to adopt
  • A contract is needed

This is just a sample of situations that should point you toward finding good legal counsel.

Website

A first step that many of us take is to do an Internet search, like searching “saanich lawyer” or “law office victoria bc”. You’ll of course be presented with a plethora of websites, and you’ll want to check out some of them. In addition to assessing the overall feel of the site (and hence the law firm itself, since the website is its virtual “storefront”), ask yourself if the site easy to navigate; can you quickly find what you’re looking for? If you select this law office you will undoubtedly be spending a lot of time on the site, so make sure it doesn’t frustrate you now, or you will regret your choice later.

Location

Hiring a lawyer involves the communication of a lot of information, and in most cases this is best accomplished with face-to-face meetings. Unless you have a reason to hire a lawyer in a different location than where you are (if so, ask if they can conduct business via video calls, for example Skype) you’ll want to look for a lawyer that is convenient to get to.

Is there easy parking close by, and is it free or low-cost (metered)? How long a drive is it, and how easy a drive is it? If you live outside an urban center (like Victoria, BC), will you have to drive all the way downtown or is there a satellite office in a rural area (like our Cordova Bay law office)?

If you have any difficulty with stairs or any other accessibility concerns you should also confirm what accessibility features the location offers. For example, the Velletta & Company law office has full-width doors, wide hallways, ample light and no steps.

specific expertise

Does the firm handle the specific type of legal advice or representation that you need? Some firms are very narrow in their scope, while others have a large team of lawyers with specific domain expertise covering a wide gamut of legal issues. You obviously don’t want to hire an attorney specializing in real estate law for your personal injury case.

Experience

How long has the firm been in business? Keep in mind that every law office is a business, and like other businesses, they won’t last long if they don’t provide good value (if you haven’t noticed, the competition is stiff). 

Scheduling

Will you be able to meet with your lawyer at a convenient time for you? For those who work, after-work appointments are the only viable option…does the office have typical “banking hours” or do they close late? Can they accommodate evening and weekend consultations? Can home or hospital visits be arranged?

Final Thoughts

Once you’ve created a shortlist of firms, the best thing you can do is schedule a one-on-one consultation with a lawyer there (either someone you select based on what you learned from the website or whoever is recommended by the firm based on your needs). How you feel about them on an interpersonal level will be the last deciding factor. It’s important to feel good rapport and can freely and easily communicate with them. As there may be lots at stake, you will be putting a lot of trust into not only the lawyer and her or his entire team. Make sure you feel comfortable that you will be getting the best advice and legal representation you can.

Top 5 Highlights of Cordova Bay

To celebrate the arrival Velletta & Company as the newest law firm to the Cordova Bay area, we’ve prepared this list of our favourite attractions in the neighbourhood. We love providing professional counsel to clients in Victoria, BC, but when our team of lawyers are not practicing law, you can likely find at least some of us at one of these.

 

Cordova Bay Beach

Cordova Bay Beach is a long, sandy beach scattered with logs that have washed ashore, and a great spot for kids because of both pebble and sandy shores. It’s a beautiful spot for a beach walk after a visit to the Beach House Restaurant, paddleboarding, swimming and lounging in the sun in summer. People of all ages can be see wandering the beautiful shores year-round. The beach can be accessed by a set of stairs next to the restaurant. This is a sunny spot for swimming as well, due to the shallowness of the waters.

The BEach House Restaurant

This restaurant, so perfectly located right on the shore of beautiful Cordova bay Beach, boasts stunning west coast design and exceptional west coast contemporary fare.

The Beach House Restaurant began as an ice cream stand and general store in the early 1920s and evolved into a hot spot for dining and dancing in the 1940s.

It is a comfortably elegant setting for a romantic dinner, weekend brunch, a casual lunch with friends, or to celebrate a special corporate or family event.

Mattick's Farm

Located in the heart of Cordova Bay, Mattick’s Farm has been a Victoria landmark since the mid-1940’s but today is a unique shopping experience.

It’s a favourite destination for both locals and tourists alike, who come for a relaxing visit in a stylish atmosphere, a casual lunch, afternoon tea, or an intriguing browse through unique shops. There’s fresh local produce, a spa, mini golf, wine shop, and more—truly an experience for the senses.

Lochside Trail

The 29-kilometer Lochside Trail trail is great for walking or biking, stretching from Swartz Bay to Victoria past beaches, farmland, wetlands, down country lanes and beside suburban backyards. The trail has a more civilized personality than its more wild cousin (the Galloping Goose Regional Trail). The trail surface is wide (3 to 6 metres) and mostly flat.

Cordova Bay Golf Course

Cordova Bay Golf Course is a public 18-Hole championship golf course, recognized as a “world champion golf destination” by Golf Canada Magazine, and rated one of the top-100 women-friendly golf courses in North America.

The course is a great place to play for all levels of golfer. The course offers enough challenge for the low handicapper and is eminently playable for the high handicapper.

Announcing Our New Cordova Bay Law Office Location

Velletta & Company is pleased to announce our opening of a new office location in the heart of Cordova Bay. This satellite office provides a much more convenient option for those in neighborhoods north of Victoria proper (Saanich, Broadmead, Brentwood Bay, Cordova Bay, Saanichton). Our new law office is in the IDA pharmacy plaza, beside Edward Jones Investments. 

Lawyer Graham Weeks will be staffing the office full time, providing expert advice in the areas of business and entrepreneur lawcorporate/commercial and residential real estate law and the planning and probate of estates. However, if you are seeking advice or representation for other legal issues, from family law to litigation, any of the other lawyers on Velletta’s legal team can arrange to meet with you at the Cordova Bay office. 

The two Velletta & Company offices as shown in Google Maps

Lots of free parking and easy access off Cordova Bay road makes this location very convenient for anyone not wanting to deal with downtown traffic. We’ve also focused on convenience with our office hours for the Cordova bay location: Monday to Thursday from 10:00am to 6:00pm, Friday from noon to 4:00pm. Being able to swing by the law office after work or perhaps combining a visit with a trip to Mattick’s farm (just up the road) is very handy.

Initial consultations are free, and serves such as notarizations are reasonably priced, and nice and easy to obtain given the small, intimate and easily accessible office.

Drop in anytime to say hello to Graham!

The new Cordova Bay office as seen from Cordova Bay Rd.
Inside the new office
Inside the new office

Evicted for Landlord’s Use: Recent Amendments to S.49 of the Residential Tenancy Act

British Columbia’s Residential Tenancy Act (RTA) has received amendments earlier this year, primarily concerning notices to end tenancies issued by landlords on the basis that they require the rental premises for their own use. Like the series of amendments to both the Act and its Regulation in late 2017 that prevent landlords from signing “vacate clauses” (or “true” fixed-term tenancies) and applying for additional rent increases in most circumstances, these amendments mainly aim to protect the rights and interest of tenants.

Section 49 of the RTA allows residential landlords to unilaterally evict tenants on the following three reasons related to landlords’ own use:

  • The landlord, or a close family member, will occupy the rental unit.
  • The landlord has entered into an agreement selling the unit and the buyer plans to occupy the rental unit.
  • The landlord plans, and has obtained all the required permits, to demolish or renovate the unit in a way that requires it to be vacant.

All of these reasons remain untouched by the amendments. However, the three requirements for any s.49 eviction—notice, opportunity to dispute, and compensation—have all been increased in favour of the tenants.

Notice and Opportunity to Dispute:

Previously, the notice for evictions on all three reasons is two months, but the amendment has extended the period for renovation or demolitions to four months. The window of time the tenants have to appeal these notices before the Residential Tenancy Branch (RTB) has also been extended to 30 days after receiving the notice for renovation/demolition evictions, and 15 days for the first two.

Compensation

It is the landlords’ duty to compensate tenants for one month’s rent for s.49 notices remains unchanged, but a new penalty for failing to provide tenants evicted on the basis of renovations/demolitions the right of first refusal has been imposed in s.51.2-3. The right of first refusal refers to the tenant’s right to enter into a tenancy agreement at the same unit after renovations are completed. This penalty is a steep one, equivalent to 12 times the monthly rent, which is also the newly prescribed amount if the tenant proves that an eviction under s.49 was not issued in good faith, i.e. the landlord did not begin using the unit for stated purposes for at least six months, within a reasonable time after ending the tenancy.

 

By implementing these harsh provisions in place, the provincial government intends to curb landlords’ contravention of the RTA, and incentivize tenants to take them to dispute resolution at the RTB when it is discovered. However, owing to the recency of these amendments, as well as the RTB’s sporadic additions to its decision database, we have yet to read a decision that invokes these updated provisions.

Recent Decisions

However, one of the most recent decisions concerning compensation for a s.49 eviction sheds some light on instances where the landlord issues notice on the basis that they will return to occupy the unit. In Decision 7033, heard in November 2017, the applicant tenant alleges that the landlord has not moved back into the unit after she moved out. However, the arbitrator wrote that:

“… In my view a rental unit is occupied by the Landlord providing they are using it for a personal purpose, even if that purpose is simply to store personal property.”

In time, as more decisions concerning s.49 evictions become available, the public will be able to gain a better idea of how these disputes are resolved, but should keep in mind that RTB decisions are not binding on future hearings.

The provincial government’s Rental Housing Task Force is hosting community meetings across the province to gather ideas for further amendments to existing tenancy legislation, which will be reported to the Premier and the Minister of Municipal Affairs and Housing in fall 2018.

About the Author:

This is our first blog post from articling student, Wen He. Wen is interested in many practice areas including civil litigation, property, and family law. He is equipped with a unique cross-cultural perspective and skillset, having spent his youth in Beijing, China. He speaks Mandarin with native fluency and maintains a legal education column on a local Chinese newspaper. Find out more about Wen by clicking HERE.

Limitation Periods applicable to the Environmental Management Act

British Columbia’s Environmental Management Act sets out a comprehensive scheme with respect to the remediation of contaminated sites.  Central to that scheme is section 47 of the Act, which permits a party who has incurred the cost of remediating a site to bring a court action to recover the costs of remediation.  In a typical Environmental Management Act action, the party who has incurred the cost will seek contribution from the property’s previous owners and operators.  Even though the mechanisms in the Act are designed around the principle of “polluter pays”, the provisions of the Act make it difficult for parties who have owned or operated a site to escape liability, as the burden of proof is on those parties to show that they fall within one of the Act’s limited exceptions found in section 46 of the Act.  As a result, actions under the Act can often involve parties that have had no involvement with the property for decades.  As a result, a frequent question asked by parties finding themselves in such a dispute is whether or not the BC Limitation Act applies, or whether there are any time limits associated with bringing such a claim.

Although the Act does apply retroactively in the sense that all previous owners and operators the property can be found liable for the cleanup, a plaintiff does not have an indefinite time in which to bring their action.  In First National Properties Ltd. v. Northland Road Services Ltd., 2008 BCSC 569, the court confirmed that the BC Limitation Act does apply to remediation claims pursuant to the Environmental Management Act.  In that case, the court found that the limitation clock started running once the Plaintiff was aware of the cost to remediate.  In J.I. Properties Inc. v. PPG Architectural Coatings Canada Inc., 2014 BCSC 1619, the court confirmed that the six year limitation pursuant to the 1996 Limitation Act was applicable.

Prior to the passage of the 2012 Limitation Act, it appeared that an amendment would be made to the Environmental Management Act to the effect that an action could be brought at any time. However, when that legislation was passed, no consequential amendments were made to the Environmental Management Act, so it remains at this time that the Limitation Act applies.  Thus, a plaintiff who incurs remediation costs ought to bring their cost recovery action swiftly, as the Act’s two year limit will likely come into play.  Further, it remains to be considered in a future case what effect, if any, the discoverability provisions of the new Limitation Act have in respect of a cost recovery claim.

About the Author:

W. Eric Pedersen is a lawyer practicing in the civil litigation department at Velletta & Company. Mr. Pedersen has worked with the civil litigation department to achieve successful outcomes for individuals and businesses, appearing in Provincial Court, Supreme Court, and the British Columbia Court of Appeal.  Find out more about Eric by clicking HERE.

Relocating with Children: The Single Parent Know-Alls

Are you separated from your spouse and thinking about moving with your child? Before jumping on a plane, there are key questions that you need to ask and certain factors that you need to be aware of.

Firstly, does your child spend more time with you then they spend with your ex-spouse? If so, a court is more likely to allow you to relocate with your child than if the child spends equal parenting time with both parents. If your child spends equal parenting time with both you and your ex-spouse, then the only consideration a court takes into account is what is in the best interest of your child.

If you do not have equal, or near equal, parenting time with your ex-spouse then the considerations are different. A court will require that:

  1. You have made a proposal for reasonable and workable arrangements to preserve your child’s relationship with their other parent, persons who have contact with them, and persons who play significant roles in their lives; and
  2. Your proposed relocation is made in good faith.

What are reasonable and workable arrangements?

In the case of Hansen v. Ferguson, 2015 BCSC 588 the court found the mother proposed reasonable and workable arrangements to preserve the father’s relationship with the children by sharing all travel costs, returning to Victoria twice a year with the children, transferring all available travel points to the father for his use, and providing regular Skype contact and email reports when he was at sea.

Although every case is different, sharing the cost of travel, planning trips home, and ensuring the children remain in contact with the other parent are all factors that the courts will consider as reasonable and workable arrangements. Keeping in mind the courts want to see that your child will be able to maintain his or her relationship with their other parent.

What is the meaning of good faith with regards to relocation?

Good faith is defined in s.69(6) of the Family Law Act and includes:

  • the reasons for the proposed relocation;
  • whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;
  • whether 60 days’ notice of an intention to relocate was given; and
  • any restrictions on relocation contained in a written agreement or an order.

Accordingly, if you can satisfy the court of the above, then the relocation is presumed to be in the best interests of the child and should thus be granted, unless the children’s other parent satisfies the court otherwise.

Returning to the case of Hansen v. Ferguson the court found that the mother had shown her cost of living would be substantially less in Ontario to that of Victoria, and the proposed move was well planned. The mother would have more emotional supports in Ontario through extended family and support of her boyfriend.  This would have a trickle-down effect on the children, given that she was the primary caregiver.

The court specifically stated that:

[48]As the primary caregiver, this improvement in the mother’s general quality of life will also benefit the children. However, neither the mother nor the children have personal connections with anyone in Pembroke other than R.W., and the children will be far away from their father, grandmother, aunt and cousin, with whom they have established close bonds. This is, of course, the primary concern, but it does not on its own show an absence of good faith. These children are very young and they have not yet established routines outside of their immediate family lives that are important for them. Adapting to a new life away from their father and his family may be challenging for them, but they will be with their mother with whom they also have very close bonds. And given the mother’s plan to have more time with them and to place them in daycare where they will meet other children, I would expect them to socialize in their new environment reasonably quickly.

[49] In this case, the mother has given a lot of consideration to the impact of this move on her children’s emotional well-being. Despite the separation from the father, I find that the relocation will likely enhance the general quality of their lives.

 

If you are thinking about relocating to a new city, with your child, please contact Velletta & Company today. We would be happy to advise you on the proper procedure and help you satisfy the above requirements.

 

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

The Do’s and Do Not’s for Examinations for Discovery

Examinations_For_Discovery

An examination for discovery is a critical part of any personal injury or civil litigation case in British Columbia’s Supreme Court. Generally, in a civil or personal injury case, each side has an opportunity to examine the opposing party. If the opposing party is a corporation, partnership, or other non-human entity, that party’s representative will be examined on their behalf. Examinations take place in a boardroom at the offices of specialized reporting companies that provide the space for the examination and a trained court reporter who produces a written transcript of everything said during the examination.

 

Examinations for discovery are very important because they allow each side to ask questions, gather information, and pin down the story of the other side. You can explore contradictions in the other side’s version of the facts. You can also find out about any records, correspondence, or other documents in the possession of the other side, and request that they disclose these documents if they are relevant. You will likely have a better idea of the strength and weaknesses of your case after both sides have conducted examinations for discovery. This helps you prepare for trial, and can even help the parties reach a settlement because they are better able to predict the outcome of the trial and more likely to compromise if they can foresee a low likelihood of success at trial.

 

What happens at an examination for Discovery?

 

Many people are understandably nervous about attending an examination for discovery, and it helps to know what to expect. The examinations take place in a boardroom around a big table. The court reporter usually sits at the head of the table between the two sides, and takes notes and marks exhibits throughout the examination. The party who is being examined will sit across from the opposing party’s lawyer who is examining them. Anyone who is a party to the litigation is permitted to attend the examinations, and usually, the party whose lawyer is conducting the examination will be there, sitting next to their lawyer. This is helpful because that party can take notes while their lawyer is conducting the examination, and can even discuss the examination with their lawyer during a break if they think of other questions that need to be asked or contradictions that should be explored.

 

If you are being examined and have a lawyer, your lawyer will attend with you to represent you and object to any questions that are irrelevant, or otherwise improper. While you are under examination, you cannot discuss the case with your lawyer, even during the lunch break.

 

The lawyer examining you will ask you questions about the events and facts that form the subject matter of the case. The examining lawyer may also ask you to look at specific documents and ask you questions about the documents. Generally, the questions are specific and leading questions, but you are not limited to a yes or no answer. You can give complete answers, although you should try to avoid rambling. The questions asked of you are designed to elicit specific information or admissions. The opposing lawyer may ask you to agree with them about how specific events happened. The lawyer examining you is representing the opposing party and is undoubtedly trying to undermine your case, but even with this adversarial situation, examinations are usually polite. On some occasions examinations become tense, but if you have a lawyer representing you at the examination you can rest assured that they will interject if things become inappropriate or the other side is being too aggressive – which is rare.

 

The length of an examination varies depending upon the complexity of the case. More complex cases take more time, and generally examinations last between 1 hour up to an entire day. There is usually a lengthy lunch break of at least one hour, because examinations are often taxing for everyone involved. The Supreme Court Civil Rules limit the length of examinations. In fast track actions they are limited to 2 hours and in regular Supreme Court Actions discoveries are limited to seven hours. The exception to the time limits is that a party can be examined for longer if they consent or unless the court extends the time limit by a court order.

 

Dos and Don’ts of Examinations

If you are the party being examined for discovery, your lawyer will meet with you before the examination to help you prepare and understand what will be expected of you. It is important that you are well prepared because once you are sworn under oath you will not be able to discuss your case or your testimony with your lawyer. Your lawyer’s advice and preparation for the discovery will vary depending on the nature of your case, but your lawyer’s advice will probably include:

 

  • Always tell the truth – You are under oath and have the same liability for perjury as if you were in court in front of a judge. You should take your obligation, to tell the truth extremely seriously.
  • Dress well, sit up straight, and look the examiner in the eye – the opposing lawyer is not just interested in your answers, but also in how you answer. You want to present yourself as a strong witness who will be calm and credible in court before a judge or jury.
  • Listen to the entire question and understand it before you answer -If you don’t understand the question, you shouldn’t answer until you do. You can ask for clarification.
  • Don’t interrupt – the court reporter will be taking a transcript of the examination, and it is important that the transcript is clear and easy to read, without people talking over one another.
  • Be polite in your answers, don’t raise your voice or become angry with the examining lawyer – you want to make it clear that you will not be goaded or become angry to the advantage of the other side.
  • If your lawyer makes an objection or interjects, stop talking immediately -wait until the lawyers have dealt with the objection and you are either allowed to continue or advised

 

Being examined for discovery in a personal injury or civil case is undoubtedly an intimidating experience, but with strong representation and good preparation, you have the opportunity to gather important information about the other side’s case, and to show them what a confident witness you will be at trial. Examinations for discovery are a vital fact-finding tool in almost every personal injury or civil case, and one which may help you win at trial or achieve a fair settlement.

 

About the Author 

C adeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high-performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost-effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Cadeyrn has represented clients at all levels of court in British Columbia, including conducting an appeal in the British Columbia Court of Appeal.

 

Who Gets the Pet?

Pet_Custody_Case

Most pet owners consider their pet to be a member of their family and not just another piece of property.

Normally when separating from your spouse pets are considered property and are therefore subject to be divided within the overall division of property in your family law case. A pet, therefore, would be subject to the property law principles in the Divorce Act and the Family Law Act.

This means that in British Columbia the courts consider the following when answering the question of, “who gets the pet?”

  1. Who purchased the pet?
  2. Was the pet a gift to one of the parties?
  3. Who has paid for the majority of the expenses related to the pet?
  4. Is one of the parties the registered owner of the pet?
  5. Who has had possession of and/or cared for the pet since the parties’ separation?
  6. Who was principally involved in the pet’s early training?
  7. Who was principally involved in the pet’s day-to-day care?

Additionally, courts have expressly stated that:

(a)  Pets will not be treated in a manner such as children;

(b)  Courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

As you can see, when a court considers the question of “who gets the pet” the question is more related to who the true owner is and not what arrangement is best for you and the pet. If you and your former partner both want to remain involved in your pet’s life, then it might be preferable to settle your pet custody dispute by consent in the form of a Consent Order or a Separation Agreement. This is because Judge’s tend to want to ensure some kind of finality for the parties while minimizing the likelihood for future conflict. Since, in the eyes of the law, pets are considered property, it is highly unlikely a judge would order some form of shared or joint custody of your pet.

Recent decisions, however, have challenged the status quo. The Court of Appeal of Newfoundland and Labrador case, Baker v. Harmina 2018 NLCA 15, involves a Bernese-poodle mix, Mya, who was “treated as a family member”. The couple had moved in together a short time after purchasing the dog, but when the couple separated a legal battle began over who got to keep her. Although In the end, the majority of the court considered the status quo property argument, Justice Lois Hoegg dissented in part, describing the issue of who owns Mya as being more complex than simply who bought her. Justice Lois Hoegg considered questions like:

  • Was the animal acquired during the relationship?

 

  • Who bore the burden of the care and comfort of the animal?

 

  • Who paid for the animal’s upkeep?

 

  • Who cared for it?

 

This could set the tone for future cases.

In conclusion, Velletta & Company can certainly help you in establishing an adequate way of dealing with the issue, or alternatively, moving forward in establishing your court case. Contact us today!

About the Author:

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE

Our Newest Lawyer: Natalia M. Velletta

Velletta & Company officially welcomes Natalia M. Velletta as the newest lawyer to our firm.

Natalia joined Velletta & Company in May, 2016 and has since successfully completed one year of Articles and called to the Bar on December 1, 2017, as a practicing lawyer in British Columbia. Natalia completed her formal induction in front of the Supreme Court of British Columbia at the Victoria Courthouse on March 15, 2018.

 

Natalia Velletta Natalia obtained her Juris Doctorate from Bond University in Queensland, Australia. Bond University’s Juris Doctorate is an accelerated program that provided Natalia with experience in both Canadian and Australian Law. Receiving an advanced education at a prestigious, international law school has provided Natalia with a unique, global perspective, which gives her greater insight into all types of commercial transactions.

 

During her time at Velletta & Company Natalia has established a diverse Solicitor’s practice and focuses primarily on the areas of:

 

  • Corporate and Commercial transactions;
  • Wills and Estates;
  • Real Estate transactions; and
  • Personal Injury including motor vehicle accidents.

 

With a specialty in Corporate and Commercial transactions, Natalia specifically enjoys mergers and acquisitions, having successfully bought and sold many companies and businesses for her clients. Natalia also has a passion for representing plaintiffs in motor vehicle accidents and frequently negotiates with ICBC to achieve fair and justified compensation for her clients.

 

At Velletta & Company, Natalia wishes to develop her Solicitor’s practice and to continuingly broaden her scope of experience. Natalia is determined, hard-working, and prides herself on offering the very best service for each and every client.  She is friendly and approachable and is always keen to take on new clients.

Outside the practice of law, Natalia enjoys staying active by exploring beautiful British Columbia and exotic locations around the world. She has many accomplishments including ballet, scuba diving and multiple, week-long hikes over the rugged West Coast Trail. She has a passion for photography, cooking, and camping.

Removing a Lien by Posting Security

Once someone has filed a builders lien and started litigation, there are only a few ways that the builders lien is going to be removed from the title of the property on which the lien is registered. If there are defects in the lien, the owner of the property can apply to have it removed. Assuming that there are no defects, then the owner could potentially be stuck with the lien on title until the litigation is resolved and any judgment obtained by the lien claimant is satisfied. Of course, this poses a potentially huge problem for the property owner, who may want to clear the title of their property to arrange for new financing or to sell the property.

 

The Builders Lien Act [SBC 1997] c. 45 (the “Act”) creates two options for the property owner or other parties interested in the property to clear the lien from title. Section 23 of the Act allows removal of a lien upon paying into court the total amount recoverable under the lien. That amount will either be the total amount of the lien claim, or, in some circumstances, the amount that is owed by the person depositing security to the person who hired the lien claimant. The latter set of circumstances arises when the lien claimant was hired by a contractor or subcontractor, and the person seeking the discharge of the lien is an owner or someone higher up the contractual chain who has no direct contractual relationship with the lien claimant. Section 23 provides an easier avenue to have the lien discharged if you can provide the required amount of security, which will then be held in court until the lien claim is dealt with or the matter settled.

 

In many cases, it is cost-prohibitive to put up the full amount of the lien claim as security. The lien might be for an amount that seems excessive, or even if the amount doesn’t seem excessive it might be too large to place the full amount in court. Section 24 gives the court a broader ability to cancel a claim of lien if an owner, contractor, subcontractor, or other interested party posts security that the court considers sufficient for payment of the claim of lien. The concept of “sufficient security” opens up a broader range of alternatives than putting up cash as security. Two common forms of alternative security are letters credit and lien bonds.

 

Letters Credit

Letters credit are issued by a bank, and are essentially the bank’s guarantee that payment will be made. In the case of a lien claim, the bank would guarantee that the lien claimant’s judgment will be paid if the court awards judgment to the lien claimant. Banks are risk averse, and are often reluctant to issue letters credit in lien claims unless they have a long-term relationship with the party seeking letters credit. Many banks require 100% cash security as between the bank and the party who requested the letter of credit, and for this reason it is often impractical to use a letter of credit as security for a lien claim.

 

Lien Bonds

The more common alternative is a lien bond issued by an approved surety company. The Registrar of the Supreme Court of British Columbia maintains a list of companies approved to act as sureties. Those companies can issue bonds promising to pay the amount of any judgment obtained by the lien claimant, and those bonds can then be filed with the court to secure the removal of the lien under section 24 of the Act. The surety companies charge a fee for issuing the bond, and also require security to ensure that they will be paid back if they are required to make good upon their bond. That security however is usually less onerous than the 100% cash security often required by banks, making lien bonds a practical alternative to putting up 100% cash security.

 

Having a lien removed from the title of the property is often imperative, particularly when it can take some time for a lien case to go to trial and be finally resolved one way or the other. Construction projects usually involve financing that makes it necessary to deal with any lien claims before the next financing draw can be issued. The Act provides two avenues for the owner or other interested party to clear title by providing security, and both of those alternatives are designed to ensure that the lien claimant is not prejudiced by the removal of their lien from title.

 

If you are looking to have a lien removed, it is always useful to contact a lawyer and utilize the guidance and knowledge they offer. Contact us today to find out how we can help.

 

About the Author

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Cadeyrn has represented clients at all levels of court in British Columbia, including conducting an appeal in the British Columbia Court of Appeal.

How to contact individuals online without being considered SPAM

CASL Guidelines

Individuals promoting their business or company online are now subject to Canada’s Anti-Spam Legislation (“CASL”). CASL deals with how businesses can contact people and what must be included in the content of online messages. One important question relating to this legislation is “how can I contact people online in order to promote my business and attempt to gain clientele without breaching this legislation.” This blog post attempts to answer that question.

 

Firstly, CASL only applies to commercial messages. Messages you send are commercial where the purpose of the messages are to encourage participation in a website. The three requirements that CASL has when sending commercial messages are:

 

  1. Having consent from the recipient in order to message them further;
  2. Identifying yourself in the message and including contact information of the sender; and
  3. Having an unsubscribe function so the recipient can choose when to opt out of your messages.

 

Please note that liability applies to anyone who sends, causes, or permits a commercial message to be sent, and whether or not the sender is in Canada. If the message is accessed from a computer in Canada then CASL applies and the sender can be liable.

 

  1. Having consent from the recipient in order to message them further

 

The first time you contact a potential customer you must ask their consent in order to contact them again. Exceptions to this requirement are where you have a personal or family relationship with the recipient or you are responding to an inquiry about your site. If the message falls within one of these categories, you do not need the above three requirements in order to communicate with them. This applies whether or not the message is commercial in nature.

 

Other exceptions exist where the message is sent solely for the purposes of providing a quote to a potential customer or contacting someone with whom you have a prior business relationship with.  In either of these scenarios, when responding it is recommended that you ask their consent in your response. An example would be “click here if you would like to receive further correspondence about upcoming and new developments from our site.” Otherwise, without consent, you cannot contact them with a commercial message.

 

If you are contacting an unknown person for the first time then consent is required and must be obtained before contacting the same unknown person a second time. Once you obtain consent you do not need to ask for consent again. An example of obtaining consent would be something like:

 

We are requesting your consent to provide you messages from our site. These messages will allow us, along with other members, to contact you about our services. By clicking below you are agreeing that you consent to receive these messages and therefore participating in our site.

 

If you would like to contact the manager of our site, or having any questions, please email us at…

 

After you have received consent any further correspondence in a message to the same address will require the two elements below:

 

  1. Identifying yourself in the message and include contact information of the sender

 

When sending a message you must identify yourself. This can be done by including the logo of Jobsdone.ca at the bottom of your messages.  Unless the message is sent to a recipient with whom the sender has a personal or family relationship with.

 

  1. Having an unsubscribe function so the recipient can choose when to opt out of your messages

 

Every message sent for a commercial purpose must have an unsubscribe function at the bottom of the message. Unless the message is sent to a recipient with whom the sender has a personal or family relationship with.

 

In conclusion, you can certainly contact people on the web and elicit customers to join your website. The recipients cannot be added to a send list, email list, or messaged the second time until you have received their consent in contacting them. Velletta & Company can certainly help you in establishing an adequate way of doing this, or alternatively, moving forward in establishing your website. Contact one of our associates today to get started-we would be happy to help.

 

Additional sources: http://laws-lois.justice.gc.ca/eng/acts/E-1.6/page-1.html

 

About the Author, Jade Fraser

Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.

 

 

 

VIDEO | BENEFITS OF INCORPORATION

 

Incorporating your company in Canada has a variety of benefits to you as a business owner. Incorporation effectively means that your business becomes a  separate legal entity created under the Business Corporations Act or Canada Business Corporation Act offering a flexible array of ownership, control, and profit participation share structures. A statutory scheme with corporately established rules and governance. Although professional advice is recommended to best design a specific corporation, set up costs are surprisingly low.

A few of the benefits of Incorporation include:

  • Very flexible business structure
  • A two-year provincial tax holiday for most new businesses
  • Creates a marketable entity
  • Very flexible ownership options, allowing possible participation of family or key employees
  • Allows for different equity contributions, not all owners have to make the same investment
  • Allows for non-controlling ownership interests (i.e. non-voting shares) for family, key employees, etc.
  • Many income splitting options
  • Lower tax rates for high-income individuals
  • Limited liability in most areas (tax liability, employee taxes, and wages are not limited)
  • Allows preferred ownership interests through preferred share structures giving special rights to prescribed investors
  • A Corporation is immortal, creating a flexible and advantageous estate planning tool

There are a few fees associated with incorporation, including a legal fee to set up and an annual fee of to run. However, these are more than manageable and well worth it for the wealth of benefits incorporation offers you.

 

Are you thinking about incorporating your business? Or just want to learn about the process? Give us a call today to speak to one of our professionals:  250.383.9104. We would welcome the opportunity to work with you to start the steps to  incorporate your business

Challenging a Will in British Columbia

Challenge_wills

In British Columbia, the Last Will and Testament of a deceased may be challenged if there are doubts about its validity or fairness. Inheritance is a subject fraught with emotion for will makers and beneficiaries, especially when it comes to the allocation of assets. Sometimes feelings of unfair treatment can trigger disputes over the validity and fairness of a will. The Wills Estates and Succession Act (WESA) sets up ways in which a will may be challenged, and anyone thinking about changing or challenging a will in B.C. would do well to speak with legal counsel on the following:

 

Validity

Contesting a will for its validity is open to the executor and any person interested in obtaining a declaration as to the validity of the will. There are four primary ways that validity of a will can be contested in B.C., each of which relates to “suspicious circumstances.”

The first of these suspicious circumstances has to do with the formalities surrounding the preparation and execution of a will. Previously, failure to meet certain formalities was fatal to a will, now however, defective wills may be saved under WESA.

The second circumstance is where the will maker lacked the testamentary capacity to understand what was going on when they signed their will. This can be a complicated matter. Advanced age is often associated with diminished cognitive function, but there are varying degrees of mental capacity and there is no standard of perfection when it comes to determining what a person understands. Testamentary capacity requires that a will maker understand the nature and quality of the act in which he or she was engaged when they made their will, but this does not mean that a will maker must meet a stringent standard to be of sound and disposing mind and memory. In essence, what is required is an awareness of the effect of the will, and freedom from mental disorder.

The third way in which the validity of a will may be challenged is if the will maker did not know or approve of its contents.

Lastly, and perhaps the most contentious circumstance, is “undue influence”. The elderly can be vulnerable to coercion and fraud, particularly in situations of dominance and dependence. Traditionally, the burden of proving undue influence rested with the party challenging the will, and it was that party who had to prove coercion. Now however, under WESA, the party challenging a will must only establish that the alleged person of influence was in a position where there was potential for dependence or domination over the will maker and the onus of proof now shifts to the party being accused to prove that there was no undue influence.

 

Fairness

If a will is found to be valid, another way in which it may be challenged is on fairness. Unlike contesting the validity of a will, a claim to vary a will, due to fairness, is only open to the deceased’s spouse and children. Third parties and other family members do not possess the ability to make a claim to vary the will of a deceased.

The definition of “spouse” in WESA includes individuals who are legally married, or who have cohabitated for more than two years in a marriage-like relationship. It is important to note however that the definition of spouse is always changing, and courts will examine a variety of different factors to determine who qualifies. A recent B.C. Court of Appeal case affirmed a spousal relationship that existed between two partners late-in-life. Even though the couple had maintained separate residences, had kept separate finances, and demonstrated their intention to benefit their respective adult children from earlier marriages and not each other, the court upheld the decision to vary the deceased’s will in favour of his partner of 20-plus years. Conversely, a married individual can lose their entitlement to vary where the parties are separated, but not formally divorced. This is because the loss of status as a spouse happens upon separation, regardless of the duration of the marriage.

While WESA defines “spouse,” “children” are not formally defined, but the term does apply to both biological and adopted children. Neither grandchildren, stepchildren who have not been adopted, nor the will maker’s biological children who have been subsequently adopted have standing to challenge a will under WESA.

If the deceased’s spouse or children believe they have been unfairly provided for under the will then they may apply to have the will varied. Although a will maker is free to decide how he or she wishes to see their estate distributed and they have a right to how their wishes are carried out, will makers also have a legal obligation to make “adequate provision for the proper maintenance and support” of their spouse and children.

A question often asked is what can a will maker do if they are legally obligated to bequeath their estate to an estranged, abusive, or incorrigible spouse or child? In such cases, will makers can try to protect their will by including a supporting memorandum that explains their rationale for disinheritance. Such documents, however, are still reviewable, and although courts are generally reluctant to vary allocations where they fall within an acceptable range, they are still empowered to exercise their discretion if they think it is necessary to do what is just and equitable in the circumstances.

To avoid depleting the assets of an estate in order to fund litigation, will makers should be very clear about the content of their will. Individuals should consult an accountant and a lawyer about how to structure their estate to maximize the likelihood that their assets will pass as intended. It is also important that will makers are clear about where their will is located and what document or documents make up their will.

 

Natalia M. Velletta is an Articled Student at Velletta & Company. Before pursuing her passion for law, Natalia attended the University of Victoria where she obtained her undergraduate degree in Education. Natalia also worked for the Government of British Columbia under the Superintendent of Motor Vehicles.

VIDEO: Medical Malpractice

Here at Velletta and company we work in the area of medical malpractice, amongst other things.

We work with some top notch medical and healthcare advisers who give us advice on the technical medical matters in your claim, in order to allow us to better focus on the legal and technical issues to properly prepare your case for trial. Not every case is a viable medical malpractice action. If you’ve been the victim of what you believe is medical negligence consult with us. We pride ourselves on analyzing the case on figuring out what is the standard of care, whether there’s been a breach and whether that breach has led to damages

In the cases damages have occurred, we’re happy to assist in moving your case forward and getting you the compensation you deserve.

Gregory Rhone obtained his law degree at the University of Victoria after studying Sciences, English, Classics, Political Science and Philosophy as an undergraduate. He articled with Gordon & Velletta and was called to the bar in February, 1999. Before joining the firm as a civil litigator, he was in private practice.

 

What is the meaning of a Common Law Spouse?

Common_Law_Spouse

Many people in Canada and British Columbia live together before becoming legally married. Some people live together while never having the intention of becoming married. It is important, however, for people in all of these circumstances to understand when their relationship is considered ‘marriage-like’ pursuant to the laws of British Columbia. This is because, if a relationship breaks down the definition of ‘marriage- like’ becomes important in determining what is, and what is not, considered family property.

 

Under the provincial legislation of British Columbia, the Family Law Act (FLA), a person is considered a spouse of another person if those two people have lived in a ‘marriage-like relationship’ for a continuous period of two years or, if they have a child together.  If you are a common-law spouse or a legally married spouse and the relationship breaks down, the date the relationship became ‘marriage-like’ is the date all acquired property is family property.[i]

 

This seems as though it is fairly straightforward, however modern times are changing and certain indicators of what a ‘marriage like relationship’ is are evolving.  For example, the courts of British Columbia have found couples are becoming more and more independent of each other by having separate finances and sometimes separate homes. It is important that both parties understand when their relationship is “marriage-like” so that they can undergo steps, if they wish, to protect their interest in the event of seperation.

 

The following are highlighted characteristics from the courts as to whether or not a couple will be considered in a “marriage like” relationship:

  • How do the parties intend to portray themselves in society?
    • Did they intend to get married?
    • Did friends believe they intended to be together forever?
  • Did they have a healthy intimate life?
    • If they weren’t intimate, were they affectionate to each other in other ways?
  • Did they partake in social activities together?
  • Did the parties live under the same roof?
  • What were the sleeping arrangements?
  • Did anyone else occupy or share the available accommodation?
  • What was the conduct and habit of the parties in relation to:
    • Preparation of meals,
    • Washing and mending clothes,
    • Shopping,
    • Household maintenance,
    • Any other domestic services?
  • Did they participate together or separately in neighbourhood and community activities?
  • What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?
  • What was the attitude and conduct of the community towards each of them and as a couple?
  • What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?
  • What were the arrangements concerning the acquisition and ownership of property?
  • Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?
  • What was the attitude and conduct of the parties concerning children?

 

 

For example, in the case of Weber v. Leclerc, 2015 BCCA 492 the appellant sought a declaration that the parties were not spouses for the purposes of the Family Law Act, on the basis that they had not lived in a “marriage-like relationship”. After evaluating the evidence before her, the judge concluded that the relationship was “marriage-like”, notwithstanding that the couple separated their finances throughout their relationship. The appellant appealed, arguing that the judge misapplied the legal test for a marriage-like relationship, and failed to give proper weight to the appellant’s assertions that she did not intend to live in such a relationship. Held: Appeal dismissed. The judge applied the correct legal test, and her findings are entitled to deference. In light of the objective evidence and the proper inferences drawn by the trial judge, she made no error in finding that the couple were in a marriage-like relationship.

 

Further, in the case of S.L.M.W. v. M.R.G.W., 2016 BCSC 272 the applicant and respondent owned and maintained two residences. As a matter of law, it is established that parties can maintain two residences and still be in a marriage-like relationship. In this case, the respondent maintained a separate residence for work purposes and this fact did not negate the court finding them to be in a marriage-like relationship.

 

As you can see understanding when a relationship becomes ‘marriage-like’ may not be straight forward. Velletta and company is a full service law firm and if you need assistance in this area, or wish to form a cohabitation or marriage agreement, please contact us.

[i] This is subject to some exceptions known as excluded property. Please note that if the parties married before they were living in a ‘marriage-like’ relationship then that is the date acquired property becomes family property.

 

Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education.

VIDEO: Changes to Scope of Work

In any project, whether it is a large residential development or a small residential renovation, there are often changes to the scope of work that take place over the course of the project. In a large project a municipality might require changes in order to issue approval, or a problem, such as inconveniently located bedrock, might become apparent that needs to be overcome in order to continue with construction. On a smaller project, gutting some walls might reveal shoddy work from a previous renovation, or water ingress or mould that should be remedied while the wall is open. In all of these hypotheticals, if the contractor did not include this work in their original quote and scope of work, then a change to the scope of work becomes necessary.

 

When there is a change to the scope of work, it can be problematic, because the work is already underway and suddenly there is the need to deal with the uncertainty created by the change in scope. The contractor will want to ensure that they are fairly paid for the additional work required by the change in scope. The owner or client will want to ensure that the contractor does not take advantage of the situation and bill an overly large amount for the additional work. It may be a delicate situation for both parties. The homeowner might feel like they are held hostage because their house is hallway ripped apart and they don’t want to get into a dispute with their contractor and delay the completion of their home. The contractor may have invested time and money into the project and might fear that getting into a dispute over a change to the scope of work will prevent or delay payment for the work already completed.

 

In large construction contracts, there is generally an independent consultant who acts as an intermediary when changes to the scope of work are needed. When the need for a change becomes apparent, a formal written change order will be issued to the contractor, the contractor will formally quote the change, and provide the quote to the consultant, who determines whether the quote is reasonable and in theory protects the interests of both parties. There may even be provisions for arbitration if one party does not agree with the consultant’s decision on a large change order.

 

For homeowners, it is cost prohibitive to have an independent consultant, and the pace of change on a residential project can be rapid, especially if the project is a residential renovation where things might be uncovered during the initial demolition phase. While there is no independent consultant on a smaller project, the parties themselves can still help avoid problems by clearly communicating. If the homeowner wants a change, that should be clearly specified and described. If the contractor thinks they are being asked to do something that was not included in the original scope of work, then they should deal with that issue immediately instead of putting it off until the final bill. Where both parties agree that something is an addition to the scope of work, the contractor should prepare a written quote for that addition – this is fair to both parties, the contractor is entitled to be paid for the extra work, and the homeowner is entitled to know what their requested change is going to cost.

 

While ultimately homeowners and residential contractors cannot implement the extensive procedures that are used on larger jobs, the same principles apply. The scope of work has to be clearly defined at the outset, for the benefit of both parties. Changes to the scope of work need to be clearly defined, and ideally agreed upon in writing through a written change order that defines the addition to the scope of work, and the compensation payable for completing that addition. Following these strategies should help both homeowners and contractors avoid disputes regarding the scope of work on a project. If the worst happens, and such a dispute does arise, it may be time to consult with construction litigation counsel. Velletta & Company is pleased to assist clients facing a construction litigation dispute, whether they are homeowners or contractors.

 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.Since joining Velletta & Company, Cadeyrn Christie has helped clients achieve cost effective legal solutions in a wide variety of contentious matters, including business disputes, debt collections, personal injury litigation, real estate disputes, and construction litigation. Contact Cadeyrn Christie

 

Builders Liens and How to Get Paid in Construction

Builders_Lien

The construction industry is one of the places where disputes often arise over unpaid bills, the scope of work, and whether or not work is done correctly. The end result is that tradespeople are often left fighting to get paid for the work that they performed on a project. Add in the fact that many construction projects are done based on a verbal agreement and a handshake, and you have a recipe for contentious disputes. Even worse, if you are a subcontractor, the head contractor with whom you reached an agreement might go bankrupt, leaving you with a dry judgment that cannot be easily enforced.

 

The law has evolved to recognize that disputes often come up in construction, and that there are unique factors that may make it difficult to get paid. The culmination of the legal solution to this problem is the British Columbia Builders Lien Act (the “Act”). In order to protect contractors and subcontractors, the Act establishes special remedies. In order to qualify for these remedies, you must comply strictly with the Act. If you miss a deadline or make a mistake in filing your lien, your lien will likely be invalid and may be struck if the owner of the property, or anyone else interested in the lien claim, takes you to court. If you lose in court, you may also have to pay the successful party’s legal fees.

 

The Act allows a person who supplies work or material to an improvement on a property, and has an unpaid invoice, to file a builders lien against the title of the property. The lien then goes on the title, like a mortgage or other encumbrance. People who search the title of the property, such as people who are interested in purchasing the property, will see the lien and be alerted to your claim.

 

Once you have filed your lien, the owner of the property and any head contractor may be more willing to negotiate the payment of your invoice. If filing the lien is not enough and there is still a dispute, then You may ultimately have to take your case to court and enforce your claim of lien.

 

The lien gives you security for your claim, against the title of the property that you worked upon. Even if the head contractor goes bankrupt, and you have no contract directly with the owner of the property, you can still potentially recover at least part of your unpaid invoice from the owner. This may seem unfair to owners at first, but keep in mind that the tradespeople who worked on the property improved the property and presumably increased its value.

 

Unfortunately, while the Builders Lien Act provides valuable protection to tradespeople, it also is extremely complicated, and cannot be fully explained in a short article. The Act also involves a series of holdbacks kept all the way down the chain from the owner, to the head contractor, and to the sub-contractor. Unfortunately, these holdbacks are often not dealt with properly, especially on smaller projects where the parties may be used to doing things more informally. If the holdbacks are dealt with improperly, it can further complicate matters.

 

If you are facing a builders lien issue, it likely makes sense to consult with a lawyer. There are tight timelines involved, and if you fail to file your lien within the timelines, then you may completely lose the right to file a builders lien. In some situations the deadline can be 45 days from when you finish the job. This makes it a very tight timeline indeed when you factor in that many invoices are not due and payable until 30 days after they are issued. Because of these tight timelines, you should talk to a lawyer as soon as possible If you get the suspicion that your invoice is not going to be paid on time.

 

If you are facing a builders lien situation, Velletta & Company offers a free consultation to discuss your situation and how we can help you obtain payment for your invoice.

 

Cadeyrn Christie is a civil litigation lawyer and business lawyer with Velletta & Company. A former tradesperson, business owner, and high performance athlete, Cadeyrn focuses his practice on providing dynamic representation to individuals and businesses.

We Are Hiring | Articled Student for May 2018

Velletta & Company is currently seeking an articled student to start in the May 2018

Start Date:  May 2018

 

Information:

Velletta & Company is a full service law firm in Victoria BC with many practice areas including:

  • Business Law
  • Civil Litigation
  • Employment Law
  • Family Law
  • Plaintiff Personal Injury Law
  • Wills and Estates
  • Real Estate Law

We are looking for an articling student for the 2018/2019 year.

 

We offer a well-rounded articling experience, supportive work environment and competitive pay. We offer a competitive, challenging, and diverse articling experience to motivated students demonstrating academic achievement.

 

Please submit a cover letter, resume, law school transcripts and reference letters to the attention of

 

Firm Contact Information:

 

  1. Eric Pedersen

4th Floor – 931 Fort Street

Victoria, BC  V8V 3K3

www.victorialaw.ca

pedersen@victorialaw.ca

 

Applications will be accepted by email to the above address.  We are accepting applications immediately.

Termination during a Probationary Period

According to the BC Employment Standards Act, an employee who is terminated without cause is entitled to severance pay or a period of notice based on their years of service.  The Act specifically provides that Employees in their first three months of employment can be terminated with or without cause at any time, and without severance.  Most employers consider this to be a three month probation period during which the Employee’s suitability for continued employment will be assessed.

 

In addition, many employers will include a probationary period of a similar nature into a written employment contract.  Although such a provision will typically be enforceable, it will not give the employer carte blanche to fire at will.  The law in British Columbia has developed so as to place an obligation on the employer who terminates during a probation period to do so in good faith.  In the recent case of Ly v. British Columbia (Interior Health Authority), the BC Supreme Court set out requirements placed on an employer who chooses to terminate during a period of probation.  In tis case, the plaintiff was hired in a managerial role and was terminated after approximately two months of employment.  The court set out the following factors to be considered in determining whether the termination was made in good faith.

 

1)      whether the probationary employee was made aware of the basis for the employer’s assessment of suitability before, or at the commencement of, employment;

2)      whether the employer acted fairly and with reasonable diligence in assessing suitability;

3)      whether the employee was given a reasonable opportunity to demonstrate his suitability for the position; and

4)      whether the employer’s decision was based on an honest, fair and reasonable assessment of the suitability of the employee, including not only job skills and performance but also character, judgment, compatibility, and reliability.

 

In this case, even though the employee was terminated during the probationary period, the court found that they were entitled to reasonable notice damages because the employer had not provided the employee with a fair opportunity to demonstrate their suitability.

 

Before terminating an employee during a probationary period, it is important that the employer turn their mind to the above principles, as failure to do so could result in a court award made against the employer.  Similarly, for employees, the mere fact that the termination took place during a probationary period will not necessarily bar a claim for reasonable notice damages.

Should you need any assistance with this area, or have further questions, please contact us. We are here to help you navigate tricky situations such as these ones and get you the best possible outcome.

Beneficiaries entitlement to financial information of an Estate

Estate_Planning_Beneficiaries

In most cases, when a person passes away they leave behind assets that form their estate. Usually, a personal representative (either an executor or trustee) is appointed to manage and distribute this estate. When receiving this role, the personal representative obtains a number of duties that they are legally required to follow. To acknowledge these duties they must swear in an affidavit that they will legally administer the deceased’s estate and be subject to these duties. This article will focus on the personal representative’s duty to account.

To account for an estate means providing information relating to two different stages, firstly about the status of the estate, and secondly about how the estate was administered and any work that was done. This information should include payments made by the estate and also any expenses and executor’s fees charged. A personal representative is required to retain detailed and accurate information of all transactions throughout their management of the contents of the estate. In some instances failing to keep accurate records can lead to the personal representative being held personally responsible for a transaction.

Specifically, there is a legal requirement that a personal representative must have their accounts approved by all beneficiaries or before a court every two years, unless it is otherwise agreed or ordered. The information that must be contained is:

  • a statement of the assets and liabilities of the estate;

 

  • a description of capital transactions, listed in chronological order;

 

  • a description of income transactions, listed in chronological order;

 

  • a statement showing the proposed fees that the executor or administrator is claiming for their work with respect to the estate; and

 

  • a statement setting out any past and proposed distributions of the estate.

Additionally, there is a common law duty to be ready at all times to provide information about the progress of the administration of the estate. Although the amount of detail under the common law duty varies based on a person’s interest in an estate, the amount of disclosure owed to a beneficiary is at the highest level. A beneficiary is permitted to inspect accounts, and other documents relating to the estate, at any point in time. Additionally, failing to account to a beneficiary after being requested to do so may result in the personal representative being ordered to pay costs of the beneficiary when the accounts are passed.

 

As you can see the duty to account is an important duty for beneficiaries and others to be aware of in the event that they are confused as to the estates financial management or its distribution. If you are a beneficiary and the personal representative is not providing you with an accounting or adequate information, it is important to consult with an estates lawyer. One of our experienced associates would be happy to provide you with the necessary advice and information to make the financial management or distribution process one that is stress-free and easy for you; all you have to do is contact us to book your first consultation.

 

 

Jade_Velletta_Company Jade grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Jade is excited to be commencing her articles with Velletta & Company in August of 2017. Although her interests reside in family law, Velletta & Company offers a broad range of experience in many different areas of law which Jade will actively engage.