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.

 

 

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.

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What can a Home Inspection Reveal?

 

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.

 

Why would I sue my Home Inspector?

 

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.

 

Is it Hard to Sue a Home Inspector?

 

At common law, a home inspector may be found responsible for negligent misrepresentation or breach of contract if they fail to properly carry out their inspection and advise their client.  In the case of Gordon v. Krieg 2013 BCSC 842, for example, the Plaintiff sued the vendors, as well as their home inspector with respect to numerous problems discovered in a home after purchase.  In that case, the home inspector was found to be 75% liable for the Plaintiffs damages with respect to poor advice given respecting foundation and structure of the home.

That said, even though a home inspector may technically be found liable for their mistakes, the court may uphold clauses in the home inspector’s contract limiting their liability.  In Gordon v. Krieg, the home inspector’s contract included a provision limiting their liability to $400.  Although the inspector could have been responsible for over $60,000 in damages, the court upheld the limitation clause.  In considering the fairness of that clause, the court wrote as follows:

[165]     The first point to make is that the fact that the presence of a liability limitation clause does not automatically signal substantial unfairness. Instead, the whole of the contract must be taken into account. Here, the contract provided that PTP would provide an inspector who would divide about three hours between, first, inspecting the house and preparing a written report, and, second, conversing with Ms. Gordon. In return, Ms. Gordon paid a fee of $400. That works out to about $133 per hour. That fee had to cover Mr. Kilby’s wage and all of PTP’s overhead. The contract required PTP to conduct a visual inspection only – neither party expected that PTP would get all forensic on the property by poking holes in walls, tearing up floor boards, or removing insulation. Four hundred dollars does not seem an unreasonable figure for the relatively limited service the contract contemplated. I grant that it might be different if PTP had charged, say, $40,000 for its three hours of time. In that case, it would be difficult to see how such a large fee could be rationally connected to the value of the limited services provided.

[166]     As for the role that the limitation clause plays in the assessment of fairness, it is important to note that the asset that was being inspected was a house that was about to sell for $360,000. Absent the limitation clause, PTP would have been open to claims in the range of tens and hundreds of thousands of dollars. In that case, the fee that PTP charged to Ms. Gordon would have to reflect that risk; it would have been much higher. The limitation clause had the effect, therefore, of moderating the price PTP charged and of bringing that price into a range that was affordable to Ms. Gordon. Rather than being unfair, the limitation clause brought the price Ms. Gordon paid for the inspection down to a point that she could afford.

[167]     For these reasons I find that the bargain between Ms. Gordon and PTP was not substantially unfair.

In short, the court upheld the limitation clause on the basis that, if it were not for such a clause, the cost of a home inspection would have to be much higher, in order to reflect the substantial risk being carried by home inspectors for their work.

 

Is a Home Inspector Liable?

 

Before bringing a case against a home inspector, careful attention must be paid to the wording of any limitation clause, and whether such a clause would apply.  As every case is unique, it is important that you consult a lawyer to discuss the facts specific to your case, and whether you may have such a claim.

 

 

 

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.

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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.

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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.

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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.

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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.

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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.

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Collisions with wildlife are an unfortunate reality for motorists in British Columbia.  According to some statistics, in an average year in BC, four people are killed, 384 motorists are injured, and at least 6100 animals are recorded as killed.   Here in Victoria, the abundance of deer on the roadways has resulted in some municipalities proposing drastic measures.  In personal injury lawsuits, ICBC adjusters and defence lawyers often seek to deny compensation to parties injured in a collision involving wildlife by claiming that the accident was "inevitable", and not the result of any driver's negligence.  However, each case turns on its own facts.

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