Sharma v Sharma

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Prem Lata Sharma is suing her sisters Raj Rani Sharma and Simmi Sharma. She is seeking to vary their mother Rama Rani Sharma’s will, pursuant to which she was disinherited, and she is also asking the court to declare that they hold title to their mother’s house in trust for the estate. Raj Rani Sharma is both a beneficiary and also the executor of the will. Their mother had gratuitously transferred the house into a joint tenancy with them, and their position is that they received the house by right-of-survivorship. Continue reading “Sharma v Sharma” »

Court of Appeal Upholds Decision in Sato v. Sato

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In Sato v. Sato, 2018 BCCA 287, the British Columbia Court of Appeal upheld Mr. Justice Funt’s decision that Hiroyuki Rex Sato was domiciled in British Columbia when he married Makiko Sato on April 30, 2013, although he was living and working in Luxemburg at the time and had not lived in British Columbia since 1999. Continue reading “Court of Appeal Upholds Decision in Sato v. Sato” »

Rosas v Toca

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In Rosas v. Toca, 2018 BCCA 191, the British Columbia Court of Appeal held that a borrower’s promises to repay a loan modified the original loan agreement, and thereby extended the time during which the lender could file a lawsuit to collect the loan. The reasons in this decision have far-reaching implications for the law of contract in British Columbia. The Court of Appeal has held that it is no longer necessary for a party to provide fresh consideration to modify a contract. Continue reading “Rosas v Toca” »

Converting a Petition or Application to Prove a Will into an Action

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The Supreme Court Civil Rules provide that a proceeding to prove the validity of a will must be started by either a notice of application, if there is an existing proceeding in which it is appropriate to do so, or by a petition. This is set out in Rule 25-14(4). This is a significant change to the practice. Prior to the changes to the Rules with the coming into force of the Wills, Estates and Succession Act, contested proceedings to prove a will were brought by a notice of civil claim. A proceeding begun by Notice of Civil Claim is referred to as an “Action.” The difference is that an Action has pretrial procedures such as disclosure of documents, and oral examinations for discovery, and ultimately a trial with witnesses testifying in court. In contrast, a notice of application or petition does not have the pretrial disclosure process and the evidence is by way of affidavits. Continue reading “Converting a Petition or Application to Prove a Will into an Action” »

Failure to Respond to CRT

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Not only can the CRT make default orders against a respondent that fails to file a response to a claim, but the CRT can make default orders against a party that files a response and fails to respond to communications from the CRT.

As previously discussed in a past post, there is an ability to overturn default orders. However, once a default order is granted, overturning it will be more difficult than simply responding to the process in the first place. Further, there is always the risk being denied the request to overturn the default decision. Continue reading “Failure to Respond to CRT” »

Obligations re: Repair of Common Property and Strata Corporations

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A topic that comes up often is whether the strata corporation has adequately repaired its common property. This came up in the case of Rueger v The Owners, Strata Plan VR 319, 2017 BCCRT 80.

The strata corporation had heating cables in its roadway, that were installed when the strata corporation was built 40 years ago. In the 40 years since, the heating cables started to fail and needed to be replaced completely if they were to work again. Continue reading “Obligations re: Repair of Common Property and Strata Corporations” »

Recovering Fines for Breaching an Age Restriction Bylaw

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In two recent decisions regarding the same parties, a strata corporation has taken steps to enforce its age restriction bylaws against an owner who was below the age limit and continued to reside in the strata lot.

In the case of The Owners, Strata Plan NWS 3075 v. Stevens, 2017 BCSC 1306 (not available), the strata corporation asked the court to confirm that the owner was breaching its age bylaw, and then sued the owner again in The Owners, Strata Plan NW 3075 v. Stevens, 2018 BCPC 2 to collect the fines. Continue reading “Recovering Fines for Breaching an Age Restriction Bylaw” »

Estate Litigation Basics Course, April 13, 2018

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I have the honour of speaking at the Continuing Legal Education Course on Estate Litigation Basics, at the Pan Pacific in Vancouver on April 13, 2018. I am speaking about evidence in estate litigation. My paper is co-authored (or will be when it’s done) by Taeya Fitzpatrick of my firm.

The course is chaired by Lauren Blake of Legacy Tax and Trust Lawyers, Vancouver. The other faculty are:
Continue reading “Estate Litigation Basics Course, April 13, 2018” »

Have to Give Strata a Chance to Repair Common Property

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In the case of Rawle v The Owners, Strata Plan NWS 3423, 2017 BCCRT 15, the Civil Resolution Tribunal found that an owner who wants the strata to repair common property, actually has to give the strata a chance to do so before suing the strata.

Within the strata lot was a fireplace with a disconnected flue. How the flue became disconnected was unknown. However, the cost to reconnect it was in issue between the owner and the strata corporation. Continue reading “Have to Give Strata a Chance to Repair Common Property” »

Strata Council Mismanagement Leads to being Ordered to Hire Strata Manager

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A dysfunctional strata corporation can lead to a court appointed administrator, which can be very expensive for the strata corporation, for the court proceeding and the cost of the administrator.

However, only the BC Supreme Court can appoint an administrator for a strata corporation, the Civil Resolution Tribunal doesn’t have that power. Continue reading “Strata Council Mismanagement Leads to being Ordered to Hire Strata Manager” »

MacKinnon v. Donauer

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There is no shortage of court cases in British Columbia of informal family arrangements going awry. A parent may assist a child and the child’s spouse in purchasing a home with the expectation of sharing the home. The idea may make good sense. Unfortunately, neither side may consider what will happen if the arrangement doesn’t work out. In the case I am about to write about, MacKinnonv. Donauer, 2017 BCCA 437, for example, Madam Justice Newbury, noted at paragraph 3, Continue reading “MacKinnon v. Donauer” »

Proper Use of Operating Fund, CRF and Special Levies

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For a strata council completing its repair and maintenance obligations, there are three sources that the council can use the funds from: the operating fund, the contingency reserve fund (“CRF”), or directly from the owners by way of special levy. Sometimes the questions arises as to what source should be used for a specific repair item. Continue reading “Proper Use of Operating Fund, CRF and Special Levies” »

Amending a Strata Plan Error

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In a previous post, I discussed a case that was sent back to trial regarding the amendment of an error in a strata plan. At issue was whether the LCP designations of parking were done in error.

All owners of the strata corporation had been under the impression that several spaces were visitor parking spaces. However, when some new owners, the Chows, moved in, they found out that the visitor parking space next to their unit had actually been designated as LCP for their benefit in the strata plan. Other owners then became aware of the same thing and, therefore, all visitor parking spaces were actually LCP parking spaces. Those owners then starting using those spaces as their parking spaces. Continue reading “Amending a Strata Plan Error” »

Winding Up Strata Corporations

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The first reported strata corporation to force the winding up of the entire strata corporation with only 80% approval of the owners is The Owners, Strata Plan VR 2122 v Wake, 2017 BCSC 2386.

Earlier in 2017, another strata corporation attempted to force the wind up of itself, but was unsuccessful because the resolution was deficient.  Continue reading “Winding Up Strata Corporations” »

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