Distracted Driving Presentation at David Thompson Sends Strong Message

Members of the Trial Lawyers Association of British Columbia delivered a highly compelling message of safety developed by the founders of End Distracted Driving, to dozens of David Thompson students last Friday.

End Distracted Driving was created by Joel Feldman and his wife Dianne after their daughter Casey, 21, was killed as a result of being struck by a car while walking in a crosswalk.

"Distracted driving is a devastating problem, both in BC and abroad," asserts Aseem Dosanjh, the 2016 President of the Trial Lawyers Association of British Columbia. "More than 80 people are killed each year in our province due to drivers being distracted. The high number of injuries and the number of people impacted by dangerous, reckless driving is too staggering to comprehend. Distracted driving has to stop. "

The presentation to the DT Social Studies 11 classes included opening remarks from BC's Minister of Justice, Attorney General Suzanne Anton, who is also the Member of the Legislative Assembly representing Vancouver-Fraserview, the constituency in which David Thompson Secondary School is located.

Defence cites flaws in Mr. Big sting at murder trial of Jean James

KEITH FRASER / Publishing date: Nov 01, 2011  •  November 2, 2011

A lawyer for accused killer Jean Ann James says his client made a false confession that she murdered her friend after discovering the friend was having an affair with James’ husband.

The motive for Jean Ann James murdering her friend was that she was in a jealous rage over news Gladys Wakabayashi was having an affair with her husband, a prosecutor argued Wednesday.

During final submissions, Crown counsel Kerr Clark told a jury that James, 72, felt betrayed after discovering the affair and drove to Wakabayashi’s Shaughnessy home.

He said the evidence from a confession James made to undercover cops shows that she used a box cutter to slit her friend’s throat.

“Jealous rage and betrayal is a very good reason for someone to be very, very angry,” he told the jury.

Clark noted James herself confessed that she had a plan and acted deliberately, methodically destroying all evidence of the crime.

James has pleaded not guilty to first-degree murder in the June 1992 slaying of Wakabayashi, the daughter of a Taiwanese billionaire.

No charges were initially laid in the police investigation but the file was re-opened in 2007 and an 11-month-long police sting launched.

James is captured confessing to the murder at a meeting with a police undercover officer posing as a crime boss at a Montreal hotel in November 2008.

Clark said there may be some discrepancies in the details James gave of the murder, but he argued that was understandable given the passage of time.

He said there was evidence James’s husband, Derek James, had had other affairs but that the accused’s anger at Wakabayashi was heightened by the fact she was a friend, not a stranger.

“One thing that’s very clear is that this was a very, very violent attack. It’s a crime that only can be committed by someone with exceeding anger and resentment.”

He added: “It appears it was almost an attempt at a decapitation.”

Aseem Dosanjh, James’s lawyer, told the jury police stings like the one targeting his client result in confessions which, by their very nature, are unreliable and which some would say are “notoriously” unreliable.

“I want to be clear, this is not a DNA case, this is also not a fingerprint case. This is a false-confession case.”

Dosanjh said the lack of hold-back evidence — evidence that would only be known to the killer — should raise a reasonable doubt for the jury. client made a

“If the design of the undercover operation has flaws in it, that should raise concerns and that would raise a doubt.

“And if the police put too much pressure on a 69-year-old woman, that is a flaw and should also raise a doubt.”

Dosanjh argued the police investigation that led to the “so-called” confession lacked reliability safeguards.

“Mrs. James’s version of events in that video recording is just not reliable. It’s not reliable because she did not do this crime.

“She is making up a story, putting together various pieces of second-hand information she had available to her and trying to make it all seem consistent and impressive.”

B.C. Supreme Court Madam Justice Catherine Bruce told the jury she expects to give them final instructions on Thursday before they begin deliberations.





Victim of Transit police beating speaks out after video surfaces

Chad Pawson, Karin Larsen · CBC News · Posted: Jul 09, 2016 10:23 PM PT | Last Updated: July 10, 2016

Former UBC student and football player claims incident was racially motivated, has filed civil suit

The man beaten by Transit Police five years ago at the Rupert Street SkyTrain station is speaking out about the incident after video of it has surfaced.

"I thought I was going to get beaten to death," said the man who can't be named due to a publication ban but spoke to media on Saturday after video showed the violence of the confrontation.

"I was punched in the mouth originally and that's when I knew this was a fight or flight situation, there's going to be danger," he said,

Last month Transit Police Const. Edgardo Diaz Rodriguez was given 12 months probation in relation to the incident after pleading guilty to assault causing bodily harm. Diaz Rodriquez apologized in court saying he lost control of the situation.

The other officer involved has since left the force, but is named as part of a civil suit brought by the victim who is seeking damages.

The victim, a 22-year-old UBC student at the time of the assault, had gone to the station to meet someone but left after getting a text from a friend.

He was first confronted by transit police on the stairs leading from the platform and issued a ticket for fare evasion.

The officers then decided to arrest the him for obstruction, claiming he had provided a false name. The court heard he had in fact given them his full name.

"One thing led to another and they're trying to arrest me for no real reason at all," said the victim. "I even said I'll pay the ticket, I'll do that and you can let me go but they were not having any of that."

After that, the victim says the situation escalated.

The victim tried to flee but was grabbed and then struck more than a dozen times by the two baton-wielding officers, with Diaz Rodriguez delivering the majority of the blows to the victim's head and neck area.

"I have multiple injuries, my back had been riddled by the baton, I must have had a dozen strikes on my body, my elbows were swollen, I got hit in the ankles, my forearms got a lash on it," he said. "Obviously my head I had stitches there, my lip had a cut from the original punch."

Micheal Vonn of the B.C. Civil Liberties Society, who has seen the video, says it's unsettling.

"It's ghastly, it's simply shocking," she said. "What you see in the video is someone being batonned repeatedly, someone who is posing absolutely no threat to anyone you can see."

Meanwhile Transit Police is not commenting on the video or the claim by the victim and his lawyer Aseem Dosanjh that the incident was racially motived.

"We are hoping to purpose this case by way of jury trial, because I think people in our community here in Canada will see this case for what it is all about which is a young man, the fact is that he comes from a coloured background, was approached by the police at most should have been given a ticket, but instead was beat viciously," he told CBC News.

The victim says he has been unable to play football as a result of the incident and suffer panic attacks whenever he sees Transit Police.

Meanwhile Diaz Rodriguez has been placed on administrative duties for five years with the force and continues to collect his full salary.

In response to the victim's civil claim, the two defendants say the plaintiff did not suffer any injury, loss, damage or expense as alleged and that their actions were necessary to carry out their duties as Transit Police officers.

Fate of Accused Killer Jean James in Hands of the Jury

Kim Bolan Publishing date: Nov 03, 2011  •  November 3, 2011

B.C. Supreme Court Justice Catherine Bruce gave her charge to jury Thursday in the Jean Ann James first-degree murder case. The jury is now deliberating.

The Richmond senior is charged with slitting the throat of her friend Gladys Wakabayashi on June 24, 1992. The trial heard James believed her husband Derek was sleeping with Wakabayashi,s the 41-year-old daughter of a Taiwanese billionaire.

"The Crown said that in a jealous rage, James was determined to get rid of her rival and carefully plotted the crime, telling Gladys she had a gift for her and arriving at Wakabayashi Selkirk Street home with box-cutters and a murderous plan."

James finally confessed what she did to undercover cops posing as a crime ring in a so-called “Mr. Big” sting in 2008. She was arrested and charged a short time later.

Her lawyer, Aseem Dosanjh, pointed out inconsistencies between what James said to police and the evidence from the crime scene. He said she falsely confessed because she wanted to earn money from the ring due to financial stress she was under.

Over the three-hour recitation of the evidence at the four-week murder trial, Bruce highlighted the testimony from the various witnesses and told the jury to carefully consider what both the Crown and defence presented.

This trial has been so sensational that the courtroom was packed every day. Members of the public jostled to get a seat and some were left listening to the evidence from the hallway through the open door.

Trial Lawyers Association of B.C. set to take government to court over ICBC changes

The Trial Lawyers Association of B.C. is set to launch a constitutional challenge against the provincial government over new Insurance Corporation of B.C. (ICBC) rules.

The constitutional challenge is expected to be filed on Monday. The trial lawyers say they are attempting to protect the charter rights of British Columbians injured on the province’s roads.

“Access to justice is a basic human right guaranteed to us as Canadians under the Canadian Charter of Rights and Freedoms,” Trial Lawyers Association of B.C. president Ron Nairne said.
“The approach this government has taken to legislative and regulatory changes to address ICBC’s mismanagement problems violates the rights of British Columbians. This should be about protecting the public interest — not about protecting ICBC.”
A constitutional challenge means a law is being challenged in court to determine if it violates or is inconsistent with the Constitution of Canada, including the Canadian Charter of Rights and Freedoms.

The overhaul at ICBC comes into effect on Monday.

As a result of the change, there will be a limit of $5,500 on pain and suffering payouts for injuries that fall under the minor injury definition and a new independent dispute resolution process to help settle injury claims.

The changes are expected to save ICBC more than $1 billion — a welcome sign for a corporation that is forecast to lose more than that amount this year.

“These are massive changes. They are [the] largest change in the 45-year history of this company,” ICBC CEO Nicolas Jimenez said.

“This is a massive reorienting of the system. We are moving away from one oriented on litigation and [to one that] is really focused on care.”

At the core of the legal changes is the expansion of the Civil Resolution Tribunal (CRT). The CRT will be used to resolve motor vehicle accident injury claim disputes valued at $50,000 or less.

“Improving access to justice is the heart of our work and what motivates us every day,” CRT chair Shannon Salter said.

“We are looking forward to taking on this expanded role and helping British Columbians resolve these disputes without the time, stress and expense of going to court.”

It will be up to the tribunal to determine whether an injury is “minor,” whether a person is entitled to accident benefits and who is responsible for a crash. Where parties involved in a crash can’t agree, the CRT can make binding decisions that are enforceable as court orders.

The reason the province has moved things to a tribunal is to deal with rising settlement costs that have been driven by legal bills. ICBC says there has been an uncontrolled gap growing between the premiums collected from customers and the cost of the claims paid out each year.

Members of the Trial Lawyer Association of B.C. are concerned that the regulations emerging from the ICBC changes will “unduly restrict access to the courts” and unfairly reduce compensation for those injured on the road.

The trial lawyers also sought out the opinion of former B.C. attorney general and premier Ujjal Dosanjh.

“I am deeply concerned with the impacts on my fellow British Columbians of the impending legislation introduced by our current government. Fixing ICBC is a priority, but not at the expense of access to justice and the charter rights of British Columbians,” Dosanjh said.

“I felt compelled to speak out as I do not believe this government has clearly understood or described the impacts of this legislation on the citizens of B.C., especially those least able to advocate for themselves after an injury resulting from a road accident.”

Two of Dosanjh’s sons work at the Dosanjh Law Group and advertise work on both motor vehicle accidents and soft tissue injuries. His son Aseem previously served as president of the Trial Lawyers Association of B.C.

Ian Mulgrew: Attorney general under fire for bowing to ICBC concerns

Ian Mulgrew: Attorney general under fire for bowing to ICBC concerns

B.C. Supreme Court justices and senior lawyers have quit an important advisory committee after Attorney General Suzanne Anton bowed to concerns from ICBC and rescinded cost and fee changes to civil litigation.

The remaining lawyers said that without judicial representation, the 14-member blue-ribbon body was “essentially defunct.”

In an astounding rift between the judiciary and the government over the cost of civil lawsuits, the en masse resignations followed cabinet’s March 31 repeal of sections of an order-in-council announced in January and scheduled to come into force July 1.

Those sections reflected the committee’s recommendations on tariffs and the calculation of approved expenses in a lawsuit — the successful litigant normally recoups some, but not all, of their out-of-pocket costs.

The changes streamlined the way of determining what expenses were allowed and it was hoped would have led to the successful litigant recovering a larger share but still not all of their legal costs.

It is unclear whether ICBC has been too aggressively defending losing lawsuits and the increased costs under the now-rescinded changes were a result — though that is what the numbers suggest.

“Our preliminary estimate on what the change could cost ICBC customers is approximately $250 million in the first year and an ongoing annual cost of at least $90 million,” said ICBC spokeswoman Lindsay Olsen.

Committee members’ deliberations and their resignations fall within the scope of cabinet confidentiality and so they are essentially gagged.

“I am not aware of any occasions when this has occurred (since the committee was created in 1977),” explained Bruce Cohen, the Superior Courts communications officer.

The attorney general said she was impelled to act after ICBC raised concerns at “the 11th hour” with the Finance Ministry.

“ICBC supports and appreciates the Attorney General’s decision to take the time to fully consider all the information available regarding these changes to ensure the impact on all the affected parties is understood,” Olsen said in an emailed statement.

“Anything that increases the cost to defend motorists could have an impact on everyone’s insurance rates.”

However, the Trial Lawyers Association of B.C. — with a large number of personal-injury litigators among its membership of roughly 1,400 — was surprised to learn of the Crown corporation’s involvement.

“The changes were good and were good for the practice of law,” said Aseem Dosanjh, president of the group.

“From our perspective as consumers, we thought it was a smart approach. I don’t particularly like the optics of this … not even a proper transparent explanation was given to us. The AG never point blank told me it was ICBC.”

Anton told him that she was rescinding the changes because “other people” had concerns, he said.

“And I can appreciate why she wouldn’t want to tell me that,” Dosanjh added, “because we’d probably be a little more concerned and want to know why the AG was taking political instruction from the Insurance Corp. of B.C. when she has a well-constituted committee to do that for her.”

Anton maintained she was not taking ICBC’s side or blocking the changes forever, she only wanted to allow further consultation.

“ICBC put up its hand and said the implementation of this policy for July 1 is going to have an impact on us,” a ministry spokesman said.

“The attorney (general) didn’t say, ‘Oh, well I’m concerned about it’ and take up their case. She just said, ‘Oh well, this is news to me,’ and she wanted to give them a chance to make their case.”

Anton maintained that the committee fell down on the job this year and then wouldn’t schedule an emergency meeting with her to deal with the problem.

“I don’t think she’s excited the way this played out,” her spokesman said.

“But she needed to rescind the (order in council) so she could allow that consultation, understand any impacts on ICBC … I don’t think that was a fault issue, these were just circumstances that were unexpected and the minister finds it unfortunate.”

The committee’s membership and stature in the legal firmament belied that explanation.

Appointed by the attorney general, it included judges, masters, representatives of court services, legislative counsel and members of the bar.

The members of the private bar were chosen for their expertise in civil or family litigation and also to broadly represent larger and smaller areas of the province.

“The composition of the committee, together with a policy of expansive consultation, ensures that proposed amendments to the rules are evaluated in the broadest context,” according to its mandate.

After citing that responsibility, the ministry spokesman said Anton wasn’t satisfied the expansive consultation “was being done here … she went back to the committee and said this needs to be addressed … the main operators in the justice system didn’t know anything about it.”

Again, the committee’s membership makes that questionable — Ed Montague, for instance, was former president of the Trial Lawyers and a current board member.

Still, the minister’s aide emphasized she’s not taking ICBC’s side: “She’s saying we have to be able to let them make their case on the impact … we need to hit the pause button. She wants it done right.”

The committee included Justice Nathan Smith (Chair), Justice Paul Pearlman, Justice Robert Punnett, Justice Barbara Young, Registrar Stuart Cameron, Peter Behie, Q.C., Daniel Bennett, Q.C., John Hogg, Q.C., Maureen Lundell, Q.C., Dinyar Marzban, Q.C., Kenneth McEwan, Q.C., Ed Montague, Kevin Kohan, Legislative Counsel (ex officio), Jess Gunnarson, Justice Services (ex officio), and Jill Leacock, Legal Counsel and Secretary.



Contractual Terms in Real Estate Development 

Contractual Terms in Real Estate Development

Did you know you could lose the market value of your home due to obstructed views and loss of privacy if you do not contractually stipulate against it?

When you purchase a property, how the contract of purchase and sale is drafted is essential. If specific clauses are not included, then recovery of damages in court is most likely out of the question. 

This was what happened in a recent case by the BC Supreme Court, Whiffen v Whistler Rainbow Properties Inc. A couple, Valerie Whiffen and Arthur Craddock sued for damages when the developer, Whistler Rainbow, built a house adjacent to theirs which obstructed their views and intruded on their privacy. Their claim was based on breach of contract, breach of promise, or negligent misrepresentation.

The Court dismissed their claim on the basis that these conditions were not set out in the original purchase agreement, and that representations made to Mr. Craddock and Ms. Whiffen could not be read into the contract. 

The couple was looking to purchase one of the five lots that were being developed by Whistler Rainbow and to be built by Big Bang Construction.  They eventually became aware that a house was going to be built in the lot next to their property. The couple had concerns about the height of the house that was to be built on the adjacent property and notified the listing agent to negotiate a purchase agreement. Eventually, they moved ahead with their purchase after agreeing to two formal addenda to the purchase agreement. 

The Contract
The final agreement to purchase their home ultimately contained six initial conditions. Notably, the contract did not contain any terms and conditions relating to the height of the house that was to be built on the adjacent property.

During the development of the adjacent property, the couple said that they were constantly “pushing for comfort” as to what was going to be built.” Their concerns eventually lead to a meeting, where the architect for Whistler Rainbow said that he told the couple several times that the plans of the adjacent property were subject to change and that they “should not count on a future house at the adjacent property following the existing plans.” 

However, the next day, Mr. Garcia, who communicated on behalf of Big Bang and Whistler Rainbow, emailed the listing agent saying that “as long as Big Bang Construction builds the house…[it] will be the one shown on the plans that I showed to your client.”

The Aftermath
The design of the house that was built on the adjacent property was eventually changed to include a rooftop deck with an outdoor kitchen, a hot tub, and a bathroom. The couple claimed that the new house interfered with their view and that it compromised their privacy. They listed their house in May 2019 and could not sell it until September 2021, after spending $14,546.45 in privacy renovations. They also sold their house for what was described as well below the asking price.

Mr. Craddock and Ms. Whiffen tried to argue that the email by Mr. Garcia (which told them the plans for the house on the adjacent property would not change) was part of the contract that they signed. However, the Court rejected this argument, saying that the discussions surrounding the properties were “far ranging” and “lack[ed] the certainty required” to be read into the contract. 

Notably, Mr. Craddock and Ms. Whiffen “did not know that it was possible to include that type of term in the Contract” and their real estate agent “did not suggest that [they include] such a term.” The judge made it clear that had either party “wished to make their expectations clear, they were well able to include a term or terms dealing with those expectations.” 

If you are concerned about having future adjacent real estate developments affect the value of your property, you should consult with a lawyer. 

*Please note that this information is intended for informational purposes only. there are always other considerations and interpretations of the law.  This does not constitute legal advice. For more information or assistance with a residential tenancy eviction matter, contact our office to speak with a lawyer directly.  

Late Builders Liens Claims in BC

Late Builders Liens Claims in BC 

Did you know that you can still potentially recover money even if you filed your builders lien more than 45 days after the termination of a contract? You could still get paid for your work.

According to a recent case in the BC Supreme Court, contractors and sub-contractors who register their builders liens more than 45 days after the termination of a contract can potentially recover money based on unjust enrichment. 

The key factor is whether the sub-contractor has had direct dealings with the owner or developer. 

Builders Liens in BC vs Ontario

On July 1, 2018, the Ontario Construction Act came into force. One of the new changes is the requirement for a party terminating a contract to publish a notice of termination in the Daily Commercial News.

This is important in the realm of builders liens because in order for a contractor to protect their lien, they must file within a specified period after a triggering event. The termination of a contract is one of these triggering events. 

In BC, there is no such requirement to publish a notice of termination. Contractors can lose out on lien claims if they do not file within 45 days of the termination of a head contract. In many instances, contractors are not even aware the contract was terminated. Contractors are also often not aware of who the general contractor is, as there is high turnover. This adds layers of difficulty in filing builders lien claims. However, there may be other ways to recover compensation for the work already rendered by contractors. 

One such case was Hans Demolition & Excavating Ltd. v Green Oak Development (West 7th) Corp. Hans Demolition claimed that it had not been paid for excavation and shotcrete work in a project developed by Green Oak. Hans Demolition was subcontracted by Webster Development. Hans Demolition filed a builder’s lien on February 9, 2017. Green Oak argued it had terminated its contract with the head contractor, Webster Development, on September 1, 2016. 

Unjust Enrichment 

The Court found that the builders lien was invalid per the Builders Lien Act in that case as it was filed after 45 days the contract had been terminated. Lien claimants have the onus to prove that the lien is valid, a standard of proof that Hans Demolition could not establish.

1 Construction Act, RSO 1990, c 30, s.31(6).

2 Builders Lien Act, SBC 1997, c 45, s.20(2).

3 Hans Demolition & Excavating Ltd v Green Oak Development (West 7th) Corp, 2021 BCSC 1472 at para 77 [Hans Demolition].

4 Ibid at para 86.

5 Ibid at para 83. 

6 Ibid at para 91, citing Rempel Bros Concrete Ltd v Mason, (1992) 8 CLR (2d) 257, CanLii 1277 (BCSC).

However, the court allowed Hans Demolition to recover based on the doctrine of unjust enrichment. 

Unjust enrichment is a remedy that exists outside of the written legislation. It seeks to “restor[e] a benefit which justice does not permit one to retain”. In order for a claim of unjust enrichment to succeed, the following elements must be claimed: 

  1. Enrichment to the defendant;
  2. The corresponding deprivation of the plaintiff; and 
  3. The absence of a juristic reason for the enrichment.

In this case, the owner of Green Oak, Mr. Habibi, had made personal guarantees that Hans Demolition would be paid. Hans Demolition dealt directly with the owner instead of through a head contractor or a general contractor as a middleman. The Court ruled that Green Oak couldn’t say its contract was a juristic reason for the enrichment after its owner made personal assurances that Hans Demolition would be paid. 

The Court noted that typically, sub-contractors would not be able to claim unjust enrichment against owners because sub-contractors do not have a direct relationship with the owner; sub-contractors contract with the head contractor.

The key difference is the assurances and representations made directly by the owner about payment, which Mr. Habibi of Green Oak did. This results in there being “no clear demarcation … in the business relationship between the owner and the sub-contractor. 

*Please note that this information is intended for informational purposes only. there are always other considerations and interpretations of the law.  This does not constitute legal advice. For more information or assistance with a residential tenancy eviction matter, contact our office to speak with a lawyer directly.  

7 Ibid at para 83.

8 Kerr v Baranow, 2011 SCC 10 at para 31.

9 Pettkus v Becker, [1980] 2 SCR 834 at 848.

10 Hans Demolition, supra note 3 at para 106.

11 Ibid at para 112.

12 Ibid at para 129.

Commissions in Incomplete Real Estate Transactions

Commissions in Incomplete Real Estate Transactions 

Did you know you could be on the hook for a realtor's commissions even if the sale of your home doesn’t complete?

According to a recent case by the BC Supreme Court, if you have contracted a real estate agent to list properties you own, you could potentially still owe the real estate agency commission even though a sale was never completed. 

In Century 21 Seaside Realty Ltd. v Armstrong, The Court wrote that commission is collectable so long as there is a legally enforceable contract of sale. The actual sale doesn’t need to close.  

The Court ruled in the Armstrongs’ case that there was a legally enforceable contract and the real estate agent had not failed in his fiduciary duty to them by failing to advise them that they would have to pay the commission even without closing. 

The outcome depends, amongst other things, on the wording of the contract and the circumstances the agreement was signed in.  


The Armstrongs entered into a sale and purchase agreement for two cabins on the coast of Lake Errock, located east of Mission. The buyer paid deposits but did not show up to pay the outstanding amount on the completion date.

Legally Enforceable Contract of Sale 

The Court ruled that the Armstrongs had entered into a legally enforceable contract of sale, which could not be rescinded due to fraudulent misrepresentation or the Visit Clause. 

The Armstrongs had signed a multiple listing service (MLS) agreement with Seaside Realty. The MLS contained a Commission Clause that stipulated commission is to be paid if a legally enforceable contract of sale is entered into during the course of the contract.

The Armstrongs tried to say that the sale agreement was not a legally enforceable contract, and so didn’t trigger the Commission Clause. They argued that a “Visit Clause” in the contract, which mandated that the seller help the buyer visit the properties before the completion date, was never fulfilled, which rendered the contract legally unenforceable. They claimed that they had failed to ferry the potential buyer across the lake to see the properties after the agreement was signed.

1 Century 21 Seaside Realty Ltd. v Armstrong, 2022 BCSC 464 at para 4 [Armstrong]. 

2 Ibid at para 14. 

3 Ibid at para 41.  

The Court rejected this argument, using contractual interpretation principles such as common sense to rule that the Armstrongs’ interpretation of the Visit Clause to be “onerous and extraordinary”.

Fiduciary Duty

The Armstrongs also argued that their real estate agent breached his fiduciary duty by failing to explain that a commission could become payable even though the sale did not go through. The court rejected this argument. 

The court noted that the Commission Clause did “not refer to a closing or completion.” In fact, the clause after actually refers to the “commission being payable in the absence of a closing on the completion date”. Therefore the real estate agent did not fail his duty to disclose material circumstances. 

The Court  also noted that the Armstrongs had time to review the MLS contract. They did not seek any additional time to review the contract. They were also sophisticated parties; Mr. Armstrong was an accountant and the Armstrongs had bought and sold property on prior occasions. The real estate agent did not owe the Armstrongs a fiduciary duty when the MLS contract was signed. 

If you are concerned about having to pay your realtor a commission without a sale, you should consult with a lawyer. 

*Please note that this information is intended for informational purposes only. there are always other considerations and interpretations of the law.  This does not constitute legal advice. For more information or assistance with a residential tenancy eviction matter, contact our office to speak with a lawyer directly.  

4 Ibid at para 46, citing Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53.

5 Ibid at para 48

6 Ibid at para 72.

7 Ibid at para 73.

8 Ibid at para 71.

9 Ibid at para 77.


Divorce & Separation: 10 Tips

Divorce & Separation: 10 Tips

Divorce and separation can raise some difficult issues and may occur when people are at their most vulnerable. It can be a stressful time for everyone concerned.

If you are thinking of separating from your partner, you may be wondering what first steps you should take to navigate through this process. In this article, we set out some simple and actionable tips to make the process as constructive and cost-effective as possible.

1. Take specialist family law advice and take it early on
Being informed means that you can make decisions which may avoid issues down the line and we can give practical tips to support you to progress matters quickly and sensibly.

2. Always act in the children’s best interests
Focus on your children and don’t speak negatively about your spouse in front of, in ear shot of, or to, your children.

3. Obtain all relevant financial information for your personal and your joint finances
This includes bank statements, tax returns, Kiwisaver, superannuation, financial statements for any businesses. Providing this information to your lawyer means they can give you early informed advice.

4. Keep a record of important details and dates
For example, any agreements you and your partner may reach, any significant financial expenditure post-separation, and time spent with your children so that you can pass this information on to your lawyer.

5. Be organised and take responsibility
This process can be overwhelming and it might be tempting to bury your head in the sand but that is not going to make the process any easier or quicker for you. Don’t be passive; be proactive and prepared to make informed decisions, even if you are not the initiator. The separation is likely to take less time, be less stressful, and cost less money if you take an active role in the process.

6. Get support and be kind to yourself
No matter how isolated you may feel at the moment, you are not alone. There are many sources of support that can help you with the feelings you may be experiencing and to learn how to deal with them in a healthy and constructive way.  Take care of yourself – physically, emotionally and mentally.  When you can control your emotions, you will be in a better place to deal with any financial settlement negotiations.

7. Keep your integrity
No matter how angry or betrayed you may feel, do not let your former spouse get to you. Don’t take to social media and resist venting details of your separation to anyone who will listen. Don’t bad mouth your former spouse to your children or your family, even if he/she is bad-mouthing you to them. Rise above it and be the bigger person.

8. Focus on the bigger picture and don’t sweat the small stuff
The decisions you may need to make during this process are likely to affect your own, and your children’s, future. If you focus on what is most important, like your future, instead of the past, you will stand a much better chance of not only separating amicably but achieving a settlement that you can live with and move forward from.  You are unlikely, in six months’ time, to be grateful that you spent thousands of dollars arguing over who retains a TV.

9. Try to avoid knee jerk reactions or decisions
Separation and divorce can be very stressful and it is okay to take your time to think the situation through and to take advice and to then consider that advice.

10. Choose the process, don’t let the process choose you
There are many process options that can be tailored to your circumstances. The family court is not the only one. Talk to us about the options before you choose one, or your find yourself in a process that you did not want to be in e.g. litigation.

Our family law team deal with all matters of separation and divorce. We can provide you with sound legal advice to help you through this process. We are dedicated to achieving the best possible outcome for our clients and their families.