Proprietary Estoppel

Generally, when asking a Court to find that a promise between two parties is legally enforceable, the Court will require the elements of a contract to be present. The basic elements of a contract include, among other things, offer, acceptance, and consideration. While all of the elements are vital, consideration (some benefit flowing to both parties) is important as it is an objective measure that both parties intended to enter into a legal relationship. Without these elements present between a party, generally, a Court will not enforce a contract.  However, the Supreme Court of Canada, in Cowper-Smith v Morgan (2017 SCC 61) has recently affirmed the use of proprietary estoppel in Canada. Proprietary estoppel might allow people to protect their rights and interests without consideration being exchanged between the parties.

The SCC acknowledged that proprietary estoppel is commonly concerned with interests in land but acknowledged that the constraint is arbitrary. The court noted that the BC Court of Appeal in Sabey v. von Hopffgarten Estate (2014 BCCA 360 at para 32) entertained the question but did not make a decision on the issue. The Court will consider the following elements to determine whether equitable interests arises:

  1. a representation or assurance is made to the claimant, on the basis of which the claimant expects that he will enjoy some right or benefit over property;
  2. the claimant relies on that expectation by doing or refraining from doing something, and his reliance is reasonable in all the circumstances; and
  3. the claimant suffers a detriment as a result of his reasonable reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on her word.
  • Cowper-Smith, supra, para. 15.

Unlike other forms of estoppel, proprietary estoppel can be the foundation for a lawsuit. The purpose of proprietary estoppel is to avoid unfairness or injustice that would result to one party if the other were to break their work and rely on their strict legal rights. For example, English courts have used the doctrine in relation to chattels, insurance policies, intellectual property rights, commercial assets, and other forms of property. However, the SCC did not make any decisions on this issue.

Currently, it is somewhat of an open question to determine how far Canadian Courts will extend proprietary estoppel. If you have relied on someone else’s promise to your detriment, please give us a call to discuss your possible legal remedies.

 

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Collaborative Family Law

Collaborative family law is a form of dispute resolution where each spouse is separately represented by a lawyer, and the spouses and their lawyers sign a participation agreement which provides for the following:

  • If either party starts contested court proceedings, all of the collaborative professionals (including the lawyers) are disqualified from acting for the parties;
  • both parties agree to full and timely disclosure of all relevant information and documents, and agree to good faith negotiations;
  • the negotiations are confidential and without prejudice; and
  • the negotiations are concluded when the parties come to an agreement, which is put into writing (a separation agreement) by the lawyers and then signed by the parties and witnessed by the lawyers.

All collaborative professionals must be certified in the collaborative process. The process often includes the following professionals:

  • Coach, who is a licenced mental health professional whose primary function is to provide emotional support, communication, and conflict resolution between the spouses.  This provides for long-term improved communications, with the outcome that the parties are able to resolve their matters on their own in future rather than requiring further legal assistance and litigation.  There can be one Coach for both parties or each party may be separately supported by a Coach;
  • Child Specialist, who is a licenced mental health professional whose primary function is to provide a voice for the children and ensure that their thoughts, concerns, and needs are heard in the separation process.  This is one Child Specialist for all children and this person is referred to as a “neutral”, meaning that he or she has no allegiance or bias for one party over the other.  He or she has the primary goal of speaking for the children;
  • Financial Specialist, who is a certified financial professional whose primary function is to help the spouses analyze their financial, business, and tax situation and plans for the future.  The intention is to help the parties make the most out of their settlement and settle on financial terms that are the most advantageous to both spouses.  The Financial Specialist is a neutral;
  • Collaborative Lawyer, who is a member in good standing of the Law Society of BC and assists their client by providing legal advice, supporting and facilitating negotiation and communication, and ensuring that their client’s legal interests are protected.

There is a myth that Collaborative Family Law is more expensive than negotiation and litigation because of the involvement of all of the experts.  The process is designed so that the action taken by each of the experts is not duplicated by the others, but rather each of the experts address a particular issue in their respective areas of expertise.  In addition, it is often possible to submit the expenses from the Coach and/or Child Specialist to one’s extended health benefits as it is an invoice from a registered clinical counsellor, psychologist or social worker.  Furthermore, the hourly rates charged by the non-lawyer specialists are often less than the rates charged by the lawyers.

Collaborative Family Law encourages and facilitates negotiations that are respectful and constructive.  This process is often more supportive of everyone involved, including the children.

If you would like to book an appointment with our Collaborative Family Law lawyer, Kathleen Sugiyama, please contact Heath Law LLP at 250-753-2202 or TOLL FREE: 1-866-753-2202.

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Litigation – What is an Examination for Discovery

What is an Examination for Discovery?

In nearly all litigation matters, parties will undergo what is termed an “Examination for Discovery” or “Discovery” for short. Typically, a Discovery means that you will be questioned under oath by a lawyer acting for the other party in your legal action. The main purpose is to learn more about the case, assess your credibility and reliability as a witness, and to have evidence provided under oath to rebut contrary evidence that you may give at trial.

While the foregoing description makes many parties nervous, Discoveries are oftentimes quite casual. You will be in a room with the lawyers, often times the other party, and a Court Reporter. The lawyer who is conducting the Discovery will ask you a series of questions about your case in an effort to obtain admissions to prove certain facts at trial. The Court Reporter will record and transcribe the Discovery, and produce a transcript afterwards.

As everything you say is being recorded and transcribed, the following are important reminders:

  • Listen to each question carefully and think before your answer
    • It is always acceptable to answer with an “I don’t know” if you do not know an answer a question asked of you
  • If you do not understand a question, ask the lawyer to rephrase it for you
  • Disclose only as much information as necessary to answer the question asked of you;
    • For instance, if asked “what color was the car” it would not be in your best interest to provide a vivid description of the car, the surrounding circumstances, and the weather that day
  • Answer the question truthfully and to the best of your ability
    • You are under oath, and are legally obligated to tell the truth. Answers contrary to available evidence could lead to a Judge not accepting your evidence at trial due to credibility concerns
  • Make sure to answer with a verbal response
    • The transcript will not pick up cues such as “mhm” or “uh huh”, nor will the Court Report record that you made hand gestures

The best way for a witness to act at a Discovery is calm, collected, and with confidence. Lawyers know that parties who do well at Discovery will do well at trial.

If you require assistance with your legal matter, contact Heath Law LLP.

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Surveillance Cyber Searches Social Media

Surveillance, Cyber Searches and Social Media

Most personal injury lawyers will warn you to close down your social media accounts, or limit access, once you commence your personal injury claim. While such advice is not misguided, it generally only applies to select claims: those involving alleged catastrophic losses or those involving litigants who appear to be untruthful.

The reality is that insurers do oftentimes hire surveillance teams to monitor the day to day activities of individuals with personal injury claims. These individuals will often follow litigants as they complete everyday tasks such as grocery shopping, driving, or going to the gym.

In addition, most insurers have internal or external teams to conduct what are known as “cyber searches”. These searches compile all of a litigant’s social media information, as well as additional information (such as land title searches and previous lawsuits) into a tidy package for the defence.

While the above appears to be a complete invasion of privacy, it is commonly used and permitted by the Courts. Again, however, it tends to only be collected, or used, when a case is catastrophic or where there are serious concerns about a claim.

For instance, if you are involved in a minor motor vehicle accident but tell your doctor that you can no longer walk, be assured that surveillance may be placed on you.

Surveillance and cyber searches only become useful to the defence if you are caught misrepresenting the extent of your injuries. In the above example, if surveillance or cyber searches show you running a marathon, you can bet that the evidence will be introduced at trial to harm your case.

It is recognized that social media is an important part of most people’s lives, and helps keep them connected with friends and family. When commencing a personal injury claim, it is important to discuss the extent of your social media use to determine whether any restrictions need to be put into place in your specific case.

For a free consultation about your personal injury claim, contact Heath Law LLP.

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