On November 2, 2017, FACL BC (Federation of Asian Canadian Lawyers) hosted their Annual Gala at the Vancouver Convention Centre. CFMR lawyers and articling students in attendance were Karla Mukai, Esteban Kähs, Samuel Suk, Gary Hou, and Jennifer Hau. This year, among many speakers at the event, we heard former Vancouver Police Department chief, Jim Chu, speak about his inspirational journey as a visible minority in the Vancouver Police Department working his way to becoming the chief of the department.
CFMR lawyers enjoy FACL Gala. L to R: Samuel Suk, Jennifer Hau, Karla Mukai, Esteban Kähs, and Gary Hou.
Following a recent amendment to BC’s Strata Property Act, condo owners can now effect the sale of their entire strata building with an 80% vote, as opposed to a unanimous vote as required under the previous law. This change, along with the ever-rising BC real estate market, has prompted a surge of group condo sales in Metro Vancouver.
However, these strata corporations, particularly those with older strata buildings constructed before June 2000, are now faced with a new problem: valuation of each strata unit and distribution of sale proceeds among unit owners.
On September 27, 2017, FACL BC (Federation of Asian Canadian Lawyers), together with SABA BC (South Asian Bar Association of BC) hosted a Family Feast panel and networking event at Sitar Restaurant in Gastown. This year’s panel was moderated by Karla Mukai (FACL BC Board member) and featured panelists Jasmin Ahmad and Jeevyn Dhaliwal, the newest visible minority benchers of the Law Society of BC. CFMR articling student, Jennifer Hau, along with local lawyers and law students, heard inspirational stories from senior members of the practice, including table mentors Jennifer Chow, Q.C. and Douglas Chiu, and celebrated leadership and diversity in the BC Bar.
A recent successful CFMR Court of Appeal Decision has generated much interest in the legal community. The case, in which the court dismissed the claims of adult children who said they deserved a larger inheritance for performing childhood chores after the renowned historic family farm was given to their brother, is the subject of a feature article in Take Five Magazine.
Counsel comments provided by CFMR lawyers Kathy Ducey and Spencer May and published in the piece, shed light on their approach and winning arguments in the case. Read the full article, along with their comments (pages 12-13) in Take Five August 2017.
During their childhood and teen years, the plaintiffs performed unpaid work on their parents’ dairy farm. They continued to work on the farm at various times during their early adulthood. Originally the farm assets were owned by their parents but the assets were later transferred into a corporation. Several years after their father’s death, they learned that their parents transferred the shares in the corporation to their brother, except for redeemable preferred shares representing about 10% of the farm’s value. Their own inheritances were to be limited to those preferred shares. The plaintiffs commenced an action against their mother, their father’s estate and the corporation for unjust enrichment in respect of work they had performed on the farm. The judge accepted that they had valid claims in unjust enrichment, but only for the unpaid work they performed as teenagers. The trial judge awarded each of the plaintiffs $350,000, less any amount they received in preferred shares. The defendants appealed.
Held: appeal allowed. The work performed by the plaintiffs was in the nature of chores. As a matter of public policy, chores performed by children in a family setting do not, absent indicia of exploitation, attract a right to compensation under the doctrine of unjust enrichment. In any event, the judge’s assessment of damages was the product of palpable and overriding error. Properly assessed, the transfer of the preferred shares would fully compensate the plaintiffs even if the judge’s unjust enrichment analysis were sustainable.
The full case, McDonald v. McDonald 2017 BCCA 255 can be found here.
In Saadati v. Moorheard, 2017 SCC 28 the Supreme Court of Canada (SCC) decided that proof by an expert of a recognized psychiatric illness is not a precondition to recovery for psychological injuries. The plaintiff need only show serious and prolonged disturbance that is more than ordinary emotional upset or distress.
In this case, the plaintiff was involved in five motor vehicle accidents from 2003 to 2009. The plaintiff claimed numerous injuries as a result of the accidents, including serious psychological injuries. He was declared mentally incompetent in 2010, and his claim was continued by a litigation guardian. At first instance, the trial judge rejected the claim for physical injury arising from the accident, but found that the testimony of the plaintiff’s family and friends was sufficient proof of psychological injury which included a personality change and cognitive difficulties. Consequently, the judge awarded $100,000 for non-pecuniary damages. However, this decision was overturned by the British Columbia Court of Appeal (BCCA). In the BCCA’s view, the plaintiff had failed to demonstrate a medically recognized psychiatric or psychological injury to support the award of non-pecuniary damages.
In reversing the BCCA, the SCC explained that recovery for mental injury in negligence does not require proof of a specific recognized mental illness. According to the SCC, the plaintiff need only demonstrate a serious and prolonged disturbance that is more than ordinary emotional upset or distress (i.e. rising above ordinary annoyances, anxieties and fears). The Court emphasized “the trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not to whether a label could be attached to them.” Indeed, to require the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury ( i.e. physical) would be to accord less protection to victims of mental injury. However, according to the SCC, it remained open to a defendant, in rebutting a claim, to call expert evidence establishing the accident could not have caused any known psychological or psychiatric injury.
Importantly, the SCC in Moorhead also indicated that the courts will likely construe a plaintiff’s pleadings liberally when determining whether they are sufficient to suggest a psychological or psychiatric injury claim. In Moorhead, the plaintiff’s pleadings did not expressly refer to psychological, psychiatric mental or emotional injury, but only “such further and other injuries as may become apparent through medical reports and examinations, details of which shall be provided as they become known; and the effects or results of the said injuries upon the Plaintiff include headaches, fatigue, dizziness, nausea and sleeplessness.” The SCC held that the broad heads of damages alleged in the plaintiff’s pleadings were sufficient to put the defendant on notice of the plaintiff’s claim. According to the SCC, while courts should not decide cases on grounds not raised, in claims for negligently caused psychological or psychiatric injury it is generally sufficient that the pleadings allege some form of such an injury.
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