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.

Recent Court of Appeal Ruling on Uninsured Motorist Benefits

Earlier this month, the Court of Appeal released its decision in Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 .  In that case, the court considered the availability of uninsured motorist benefits pursuant to section 20 of the Insurance (Vehicle) Act.

In British Columbia, all motorists are required to carry at least a minimum amount of third party liability insurance.  This means that when someone is injured as a result of a negligently operated motor vehicle, the injured party can almost always count on a pool of funding to be available from which they may recover an award of damages.  Section 20 of the Insurance (Vehicle) Act essentially acts as a failsafe in our mandatory insurance regime – for those rare cases where the motorist is uninsured, the injured party may make a claim for Section 20 benefits to fill in the gap where recovery from the negligent motorist is not possible.  However, as this case shows, Section 20 benefits have their own limitations to be aware of.

Section 91 of the Insurance (Vehicle) Act limits recovery in certain cases:

Limitation on recovery in relation to stolen vehicles

91 (1) This section applies to a person who

(a) suffered bodily injury, death or loss of or damage to property that is caused by the use or operation of a vehicle, and

(b) at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.

(2) Despite the Negligence Act and section 100 of this Act,

(b) a person referred to in subsection (1) is not entitled to any recovery from the corporation under section 20.

Essentially, an injured party is barred from making a section 20 claim if they were a passenger in a vehicle that they knew, or ought to have known was being operated without the owner’s consent.  In this case, ICBC was successful in arguing that the plaintiff was not entitled to section 20 benefits.  At the time of the accident, she was 17 years old, and was a passenger in a vehicle driven by a 15-year-old.  At trial, the judge found that because of the plaintiff’s young age, she couldn’t have turned her mind to whether or not the vehicle was driven without consent, and therefore she was not barred from recovering pursuant to section 20.

The Court of Appeal disagreed, and found that a reasonable person in the plaintiff’s circumstances ought to have known that the vehicle was driven without consent.

This is an important case, as it clarifies the test to be followed when considering the section 91 exception.  The court is to follow an objective approach, considering what a reasonable person in the plaintiff’s circumstances ought to know, as a opposed to the subjective approach employed by the trial judge.

Employment Law Part 2-NEW VIDEO!

 

Hi, my name is Eric Pedersen I’m a lawyer for Velletta and Company practicing employment law. Today we’re going to talk about another employment law topic which is constructive dismissal. Now the constructive dismissal is really just a fancy way to say, “I quit” to your employer to also at the same time exercise and enforce all of the rights that you would have if you were an employee who was fired without cause.

The general rule of thumb in British Columbia is that an employee who quits their position isn’t going to be entitled to any severance pay or any notice they’re walking away from the job and that’s on them. But constructive dismissal is a very specific category in the law that allows an employee who quits to bring a claim against the employer for severance. The idea is that although the employer hasn’t fired the employee they have by their conduct in the way that they might have changed the employee’s workplace duties changed their employment. Such to the point that they’ve pretty much been fired and have all of the rights of a fired employee.

Not every minor change that an employer might make to an employee’s employment contractor to their workplace will result in an employee having the rights of a constructively dismissed employee. A really obvious example would be if you were a CEO one day and then you showed up the next day you were demoted to janitor. Well you haven’t been fired but you have pretty much been fired.

So you have all of this same rights to claim for severance as an employee who was fired but not all cases are black and white. And there’s a lot of grey area. It’s important that you do consult a lawyer before exercising the option of constructive dismissal.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company’s civil litigation department. 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. His practice is focussed primarily on the following areas: Personal injury and motor vehicle claims, Employment and Human Rights Law, Commercial litigation, Real estate litigation, General insurance litigation, Disability insurance litigation and General civil litigation.

Employment Law | Wrongful Dismissal

Our professional Eric Pedersen is well-versed in employment law. In this video, Eric covered the topic of wrongful dismissal and what to do if you think you have been wrongfully dismissed at your place of work.

 

 

Hi my name, is Eric Pedersen and I’m a lawyer practicing employment law at Velletta & Company. Today I’m going to talk to you about one topic in employment law which is wrongful dismissal. There are a lot of misconceptions about what a wrongful dismissal is and the way to think about it is a wrongful dismissal is a firing or a termination where the employer fails to get the proper amount of notice. Or severance.

The reality is that employer is permitted in British Columbia to fire anybody at any time. For almost any reason as long as they give them the proper amount of severance pay or notice. There is one major footnote to that which is B.C Human Rights Code. There are 13 protected grounds in the human rights code that you can’t base a dismissal on. Those are things like age, gender, gender expression, race, religion and country of origin and so on.

But back to the reasons for dismissal: it doesn’t actually matter. It doesn’t really factor into any court’s decision (unless the employer is alleging that they have cause to fire you), why the employer might have terminated you. They are allowed to terminate you for the dumbest reasons at all! It may be that you remind them of their fourth-grade school teacher or you just rub them the wrong way or you’re not a good fit. What matters is that you’re given the proper amount of severance pay. Severance pay or pay in lieu of notice. We’re going to be talking in a bit in another video as to what the proper amount of severance that an employee can expect termination is. All terminations are a difficult process. And it’s often important to know your rights before signing off on the release or if your employer before terminating an employee for any reason. Always get legal advice.

Calculating Reasonable Notice – Breaks in Service

Non-unionized employees in British Columbia who are terminated by the employer without cause are entitled to reasonable notice of the termination.  Reasonable notice can be given as pay in lieu of notice, as working notice, or as a combination of both.

These employees are entitled to statutory pay or working notice pursuant to the Employment Standards Act, and unless they are bound by an employment agreement that says otherwise, they may also be entitled to additional “common law” reasonable notice that is enforceable by the courts.

An employee’s reasonable notice period is usually calculated in weeks or months.  In calculating an employee’s entitlement to reasonable notice, the courts will consider the length of service of the employee, their age, and their ability to find other work.  The employee’s length of service tends to be a highly determinative factor, but in some cases, disputes may arise as to how the employee’s length of service is to be calculated.  It is typical of many long service employment relationships that there will be breaks in the employee’s service.  Typically, an employee will want their entire employment history counted when determining the length of service, while the employer is interested in minimizing their severance obligations.

In some cases, the court will ignore a break in service when calculating reasonable notice.  To make such a determination, the court will consider the length of the break relative to the length of service, the conduct of the employer in respect of the break (i.e., was the employee temporarily forced out of employment by the employer), as well as any evidence that shows that the employer intended to treat the employee’s service as continuous.  Typically, if the employee willingly leaves their job for another and is away for a considerable time before returning, the employment will not be considered as continuous.

If you are a long-serving employee who has been terminated from your employment, it is crucial that you seek legal advice.  An employer seeking to terminate a long serving employee should also be cautious as issues such these, as the amounts at stake as pay in lieu of notice could be substantial.

 

W. Eric Pedersen is a lawyer practising in Velletta & Company’s civil litigation department. 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

What to Bring to your First Meeting with a Lawyer

Lawyer Meeting

At Velletta & Company, our number one goal is to provide each of our clients with exceptional customer service. This starts right from the very first meeting. Throughout your matter, you may find yourself in our office or in contact with us quite frequently and we want to make sure we start the relationship off on the right foot!

Here are 5 things that you as the client can bring to make the process go even smoother.

 

  1. Two pieces of photo ID.

We need to confirm that you are you! Your ID is necessary for us to have relevant information about you that relates to the case such as your legal name, drivers license #, etc.   Examples of acceptable ID include Driver’s License, Passports and Medical Services Card (with photo ID).

 

  1. Pen & Paper

We will cover a number of things in our first meeting and there may be certain steps or documentation that we need you to follow through with—so note-taking in our meetings is always encouraged! Whether it is a pen and paper or notes on your cell phone—anything works.

 

  1. A List of Questions

Before your meeting write down any questions you may have. We are happy to answer them all and to help you understand the process that will take place. We want to make sure the process is as stress-free for you as possible.

 

  1. Relevant Documents

Bring any documents you currently have relating to your case. These may be a range of things and will vary based on your case. But the general rule of thumb is that if it has any relevance at all to your case, bring it in.

 

  1. Method of Payment

Please ensure that you bring a method of payment with you. We will notify you before the meeting of our consultation or retainer fees if they apply.

 

By bringing these 5 items with you to your first meeting we can ensure the process goes even smoother for both parties involved. We can also dive right into the details of your case and begin the steps necessary to ensure the best outcome possible!

Plan Ahead! Consider Additional Disability Coverage through ICBC

If you are involved in a motor vehicle accident and cannot work, the typical maximum rate payable by ICBC for TTD (temporary total disability) benefits is only $300 per week.  Every driver in BC has access to this coverage as a matter of law; however, the benefit amount has not been increased for over 25 years!  As I have written in an earlier entry, it is nearly impossible to make ends meet on that kind of money, especially if you are paying out of pocket for treatment costs.

Few people are aware of this, but it is possible to purchase extra disability coverage from ICBC.  Some of us here at the firm buy this extra coverage every year when renewing our vehicle insurance.  You can increase your TTD rate from the typical $300 per week up to $700 per week by purchasing Income Replacement Policy APV197.  An additional coverage of $400 per month costs $84 per year.  It’s a great value.  There is very little information online regarding this extra coverage, so we recommend that you discuss this with your broker the next time you renew your insurance.

If you are involved in a motor vehicle accident in British Columbia, contact one of our Victoria Lawyers today.

Four Paragraph Decision from the BC Supreme Court Provides Much Needed Clarification on Default Judgment Rules

The BC Supreme Court published a four-paragraph decision today that should be of some interest to the litigation bar in BC, particularly those whose practice includes creditors remedies.

Rule 3-8(2) of the Supreme Court Civil Rules allows a party to take default judgment against a party who has failed to respond to a claim by making a filing with the court registry if the claim is in a specified and ascertainable amount.   This means that if the Notice of Civil Claim specified the damages as a dollar figure, the Plaintiff can take judgment quickly and inexpensively, with no court appearances needed.  Where the damages are not specified as a dollar figure, the Plaintiff is required to make an application before a judge to assess the damages.

The court registry has in the past rejected applications for default judgment where there is a specified sum plead in the Notice of Claim, and where there are also alternative claims for general damages.  This would force the plaintiff to bring the claim to a judge for damages to be assessed.  This is a costly and inconvenient process, particularly if the Plaintiff is concerned about a dry judgment, or has limited resources to pursue collection.  Today’s decision seems to indicate that filings for default judgment will now be accepted and entered despite alternative pleadings being made.  This gives lawyers greater flexibility in drafting their claims, as they will not have to consider excluding general damages claims if the case may possibily proceed to default.

The court’s decision in Trustees of the Interior Lumbermen’s Pension Plan v. Moore, 2016 BCSC 89 is printed below:

[1]             THE COURTI am prepared to grant the order. 

[2]             I do so on the basis — and you may wish this to be transcribed, because it may be something that is of use to the profession generally — but in my view, Rule 3-8(3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 makes it clear that a party may obtain default judgment on a claim for money that is in a specific ascertainable amount. 

[3]             There is nothing in the Rules that precludes a party from doing so where the claim happens to be coupled with a claim in the alternative.

[4]             I am allowing the appeal and you may take the order.

 

 

Enforceability of Non-Compete Clauses in an Employment Contract

As an employment lawyer who represents small business as well as employees, I am often asked to advise on the contents of a written employment contract.  Many of the key provisions in an employment contract are concerned with what happens after the termination of employment.  This article deals with “restrictive covenants”, and more specifically, what are sometimes called “non-compete” clauses.

Read moreEnforceability of Non-Compete Clauses in an Employment Contract

Caveat Emptor in Real Estate Transactions

As lawyers practicing in the area of real estate litigation, we often find ourselves advising clients who have purchased a home, only to discover after moving in that the home is full of many problems and defects that they weren’t made aware of.  Faced with expensive repairs and renovations, disappointed home buyers will often turn to the seller of the property for these costs.  This article deals with the types of circumstances in which a vendor of real estate can be held responsible for defects discovered by the seller after purchase.

Read moreCaveat Emptor in Real Estate Transactions

Can I Sue My Home Inspector?

Purchasers of residential real estate in British Columbia will typically engage the services of a home inspector prior to purchasing a home.  For most British Columbians, a home is the biggest purchase they will ever make, and a proper home inspection can provide some assurance as to the quality of the home and can reveal defects that could otherwise catch the buyer unawares after purchase.

In some cases, a buyer may seek redress against a home inspector if the inspector failed to identify defects or misrepresented the home or their findings in some way.

Read moreCan I Sue My Home Inspector?

Help! The insurance company is denying my claim!

Insurance law, Victoria BC, Velletta & Company

For many Canadians, insurance is a fact of life. We rely on our insurance policies to provide for us in the case of the unexpected. Insurance has become such an important part of our lives that in 2011, Canadians spent over 39 billion dollars on their premiums.[1] When you make a claim on your insurance, your claim will be managed by an insurance adjuster. The adjuster’s job is to ensure that you are paid out properly under the policy – and in most cases, your insurance claims are handled smoothly and you get the compensation and peace of mind you paid for. However, in order to keep your insurance premiums low (and the insurance company’s profits high), the adjuster must always endeavor to keep payments under the policy to a minimum. As a result, disputes arise between insurance companies and their customers about their insurance coverage, and many people find themselves frustrated, and in need of assistance in resolving these disputes.

Read moreHelp! The insurance company is denying my claim!

Driver takes ICBC to court to keep his safe drivers discount – and wins.

An interesting decision was released today by the British Columbia Provincial Court.  In this case, a driver was deemed by ICBC to be at fault for an accident that occurred when his vehicle struck a rock in the middle of the roadway.  ICBC made payments to an injured passenger, and repaired the vehicle, making both payments pursuant to the driver’s collision coverage, as opposed to paying “no-fault” benefits to the passenger, and paying out the repairs under his comprehensive insurance policy.   The upshot of ICBC’s determination,  was that the driver would lose his safe-driving discount, and would have to pay increased premiums.  He decided to fight this determination in court, and was successful.

Read moreDriver takes ICBC to court to keep his safe drivers discount – and wins.

Court of Appeal Decision Places Heavy Burden on Cyclists Passing On the Right

Earlier this month, the British Columbia Court of Appeal released its reasons in the case of Ormiston v. ICBC, 2014 BCCA 276.  In this case, an injured cyclist was found totally at fault for an accident that occurred while the cyclist was passing a vehicle on its right, contrary to the Motor Vehicle Act.  As a cyclist myself, I agree that cyclists must endeavour to follow the rules of the road – however, this case highlights problems with the legal framework that governs how motorists and cyclists are to share the road, and the associated problems in adjudicating negligence cases involving cyclists.

Read moreCourt of Appeal Decision Places Heavy Burden on Cyclists Passing On the Right

Illegal Income in a Personal Injury Claim

In a personal injury action, the injured party can claim against the defendant for both past income loss (being their actual lost income up to the date of the trial), as well as for potential future lost income earning ability (called a “loss of capacity” claim).  In both cases, the plaintiff must satisfy the court on a balance of probabilities that they have suffered these losses, as well as the amount of the loss.  In many cases, past wage loss can be a simple calculation – for example, a plaintiff can use pay stubs, or income tax returns to show how what their earnings were up to the accident, and can readily calculate how much income was lost – for example, if the plaintiff earned $600 a week, and was off for two weeks, their lost income is easily calculated to be $1,200.   Bringing a claim for lost income can be tricky if your income comes from more unorthodox sources.

Read moreIllegal Income in a Personal Injury Claim

Traumatic Brain Injury and Homelessness

A recently published Canadian study reveals a frighteningly high correlation between homelessness and traumatic brain injury.  This study was funded by the St. Michael’s Hospital Head Injury Clinic in Toronto, the Canadian Institutes of Health Research and the Ontario Neurotrauma Foundation.

Read moreTraumatic Brain Injury and Homelessness

Injured, Poor, and Living Off of ICBC Benefits

Parties injured in a motor vehicle accident in BC have access to no-fault disability benefits and payment of some treatment costs through ICBC.  If the injuries were caused by another driver who as at fault, the injured party can bring a lawsuit to recover their additional losses.  In reality, this can play out very differently for individuals, depending on their economic status.  Parties that were barely scraping by before suffering injuries in a motor vehicle accident, are at a comparative disadvantage to those parties that have access to savings or outside streams of incomes, due to a number of compounding factors.

Read moreInjured, Poor, and Living Off of ICBC Benefits

Calculating ICBC Disability Benefits

If you are injured in a motor vehicle accident in British Columbia that prevents you from working, you may be entitled to disability benefits, even if the accident was your fault.  This is because in British Columbia,  we have a “no-fault” benefit scheme which provides wage loss benefits, death benefits, and medical benefits that are available to most people injured in a motor vehicle accident in BC (and for BC residents injured in the states, or elsewhere in Canada).  These benefits are set out in Part 7 of the BC Insurance Vehicle Regulation (which is why sometimes they are referred to as “Part 7 Benefits”).

Read moreCalculating ICBC Disability Benefits