Publications Archive

"Social media" allows individuals to communicate on a highly accessible level through the assistance of technology.  When the workplace and social media interact, a variety of legal and business issues arise. Failure to consider these issues can have negative repercussions for employers and employees alike. 

The Employment Standards website states that on May 1, 2011, minimum wage was increased to $8.75 per hour for most workers, and the training wage was repealed. The minimum wage rate will increase twice more, to $9.50 on November 1, 2011 and to $10.25 on May 1, 2012.

These materials were prepared by H. Scott MacDonald and Georg D. Reuter of Richards Buell Sutton LLP, Vancouver, BC, for a conference held in Vancouver, BC hosted by the Continuing Legal Education Society of British Columbia, May 12, 2011

This paper was prepared by H. Scott MacDonald and Karen J. Chang of Richards Buell Sutton LLP for The Continuing Legal Education of British Columbia and presented to the conference "Commercial Leasing:  Arbitration and Remedies", May 6, 2011, in Vancouver, BC

The Ontario Superior Court of Justice in 137328 Canada Inc. v. Economical Mutual Insurance Company, (2011) ONSC 1085 (Alliance v. Economical) recently canvassed the rarely considered right of insurance companies to appoint and instruct liability defence counsel. The case presents a valuable opportunity for insurers to understand what courts will consider when determining an insurer's right to appoint counsel to defend a claim that involves a significant uninsured component.

In July 2010, the Civil Policy and Legislation Office released a white paper on Family Relations Act reform. This paper proposes radical changes to British Columbia's Family Relations Act which had not been comprehensively reviewed since its introduction in the late 1970s.

A recent appearance at a Summary Trial whose sole issue was whether or not our client, a cyclist injured at the hands of an unidentified driver, was at the time of the accident, "ordinarily resident" within BC.

Last week, the BC Court of Appeal overturned a significant award to a Cambie Street merchant following years of litigation surrounding the cut and cover construction project of the Canada Line transportation system.  However, The Court of Appeal did not disturb the trial judge's finding of nuisance which will no doubt give construction project owners and neighbouring businesses to construction projects further cause to consider the impact of the law of nuisance.

As Facebook crossed the threshold of 500 million users in 2010 and has been proclaimed the largest human interaction in the history of mankind, businesses and the legal profession continue to grapple with issues that are slowly seeping out of this phenomenon.

Businesses need to consider how to integrate social media into their workplace, and be ready to react quickly if they want to protect their brand and reputation in cyberspace.  Social media is here to stay.

One of the most significant challenges for a personal injury lawyers is proving chronic pain in cases where there is no physical explanation  for continuation of pain, weakness, discomfort. That is because, second only to liability itself, i.e. proving fault, proving causation carries with it the ultimate risk of non‑persuasion.

The Manitoba Court of Appeal recently reversed a lower court decision that extended coverage to damage caused by mould despite the existence of a water ingress exclusion. In Minox Equities Ltd. v. Sovereign General Canada Co, 2010 MBCA 63, the Court of Appeal confirmed the test for determining whether an exclusion clause extends to concurrent and consequential loss. In determining that the exclusion clause did apply, the court ruled on the meaning of the exclusionary phrase "caused directly or indirectly" used in many insurance policies.

There has never been a more exciting time to be a cycling advocate in British Columbia, and specifically in downtown Vancouver. The present city council seems predisposed to do everything it can to move the City of Vancouver into a new era in which the bicycle is given paramount importance as a mode of transportation. 

A recent decision of our BC Supreme Court featured a detailed consideration of the legal principles involved when a cyclist is squeezed between moving and parked traffic. The potential liability of both the driver of the passing vehicle and the driver of the badly parked vehicle was decided.

Technology transfer refers to the transfer of scientific findings from one organization to another for the purpose of development and commercialization. During the process of technology innovation and transfer, there are many individuals that are employed by, or affiliated with, an institution, that may be inventors and contributors to a specific technology. This article focuses on the types of claims that could arise against an institution from these individuals, and how institutions can minimize the risk of these potential claims and disputes.

Ever since the introduction of mandatory helmet legislation in British Columbia in September 1996, I have received at least two calls a month asking that I spearhead a challenge to the helmet laws. My answer has always been the same - "You are talking to the wrong friendly neighbourhood bike lawyer". My perspective is shaped at a visceral level. When helmeted cyclists describe for me the circumstances of significant head trauma, it seems obvious to me, and to them, that the use of a helmet may well have saved their lives.

By recently dismissing an application for leave to appeal, the Supreme Court of Canada has refused to interfere in the Ontario Court of Appeal judgment in Farmers' Mutual Insurance Company (Lindsay) v. Pinder, 2009 O.N.C.A. 831, which found that there are two preconditions to an Insurer's entitlement to subrogation under the Standard Mortgage Clause. First, the Insurer must make payment of the loss to the Mortgagee (the Lender). Second, the Insurer must establish that it has no liability to the Mortgagor (the Borrower)/Insured under the policy.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

Presented at the British Columbia Parks and Recreation Association Regional Districts Workshop

A recent decision of the British Columbia Court of Appeal, MacLaren v. Kucharek, has created a stir in the cycling community. Danny MacLaren, a 49 year old paramedic and experienced cyclist, was found partly responsible for an accident involving a left‑turning driver. As a result, the case has engendered some press and an alarmed reaction.

An Alberta Court of Appeal decision regarding the applicability of "settlement" exclusions

Software plays an increasingly critical role in business. The selection and maintenance of the appropriate software is an essential means of operating a seamless and efficient organization.

Our latest Construction Law Newsletter about tendering law and the recent judgment in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways).

Lawyers and clients dealing with claims for the remediation of contaminated sites often assume that, once we've reached agreement on the business terms of a settlement the hard work is done and the details will take care of themselves. As a wise teacher once told me, illustrated to great effect on the classroom chalk board by dividing the word "assume" into three small words:

One should never assume unless you want to make an "ass" out of "u" and "me"

In today's business climate, employers are downsizing their work forces and losing good people who they simply can't afford to retain.

One of the more antiquated provisions of the Motor Vehicle Act states that "A person operating a cycle...must not ride abreast of another person operating a cycle on the roadway." When read together with its infamous sister provision “a person operating a cycle must, subject to paragraph (a), ride as near as practicable to the side of the highway", the statute appears to be a thinly veiled effort to get cyclists out of the way so as not to impede faster motor vehicles.

Injured cyclists are typically concerned about the time limits associated with claims for compensation. Every case is unique and requires a thorough understanding of the law and the many applicable statutes and regulations at play. However, there are some general guidelines pertaining to cyclists claiming an injury to person or property.

This article originally appeared in the Lawyers Weekly, December 18, 2009.

Commuter cycling in North America generally follows the pattern of being on a road moving past parked motor vehicles. The absence of dedicated cycling infrastructure alongside roads creates ever present risk of every cyclist's nightmare coming true. Of course, I am speaking of the beastly occurrence colloquially known as the "door prize".

Cyclists involved in accidents with cars are immediately forced to make a number of important decisions. In this unfamiliar post trauma world, when does a cyclist need counsel to pursue damages to person and/or property?

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia

I appreciate the title of this article may sound like a card game. Unfortunately, litigation often carries similar and unpredictable risks. Much of the uncertainty arises from the introduction of evidence on material issues, and how that evidence is received by a Trial Judge and/or jury.

Keep in mind that the duty to accommodate can arise within the context of a complaint under human rights legislation or in a wrongful dismissal action for breach of contract. The failure to accommodate a disability under human rights legislation can render a dismissal discriminatory, which gives rise to specific statutory remedies. The failure to accommodate a disability within the context of an employment contract can render a dismissal wrongful, and give rise to a claim for damages.

I recently concluded a complicated case involving a cyclist who sustained significant orthopaedic and near catastrophic injuries on the Sunrise Bike Route. To me the case provided another illustration of the legal ambiguity surrounding bike routes and the divergent perspectives that emerge from that legal vacuum.

In today's global economy, the outsourcing of software development work to offshore jurisdictions is a strategic tool that can provide a competitive advantage for many Canadian companies. In addition to the potential cost savings, outsourcing can also provide access to world class expertise and development technologies, and allows a corporation to focus on its core competencies and business activities.  With this opportunity, however, comes certain difficulties and challenges.

One of the most important questions facing our society today is access to justice. Members of a civilized community need access to a justice system through which they can resolve their civil (non‑criminal) disputes.

Canada's insurance industry has long harboured a secret desire to push for no fault insurance. No fault insurance programs presently exist in four Provinces. These programs eliminate a tort liability system and prevent accident victims from suing for pain and suffering and limit recovery for income loss and future care costs.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

This paper is intended to review the different types of insurance which commercial leases typically require and some of the types of insurance clauses often stipulated as part of the required insurance coverage. Although the sample lease clauses deal with insurance covenants in shopping centre leases, the comments and advice apply to all types of commercial leases.

If you've been injured in a bike accident involving a motor vehicle, your challenges can be significant. In serious cases, not only must you cope with acute trauma and associated disability, you must also face a prospect of doing battle with an insurance company whose bias, in my respectful view, is systemically stacked against the cyclist.

An article on the nature and purpose of our tort (civil wrong) system, the public's perception of lawyers and the legal system, and the social purpose underlying litigation. In short, "the big picture". 

Evidence from the lay witnesses is "the wild card" in many trials. Proper selection and preparation of your lay witnesses is essential to success. 

Safety is more important than a determination of right and wrong. With this universal truth in mind, how does the Lower Mainland and the Province create a transportation infrastructure which truly makes safe room for cyclists and pedestrians?

A.        Preparing your Case… and Yourself.

B.        Preparing your Client.

C.        Preparing the Other Side.

D.        The Importance of Setting Targets.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

Landlords often have to deal with tenants defaulting under a commercial lease. The pattern of default is typical. It often begins with a series of late rent payments, then it progresses to payment of only a part of the rent due. Finally, there is a complete default in payment of rent. At this point, the landlord contacts his or her lawyer to advise that rent is in arrears and to seek advice on the appropriate remedy.

Leases should contain covenants that deal with the condition of the premises during and after the tenancy. A landlord will want to ensure that the lease includes express tenant covenants to maintain and repair the premises during the lease and to deliver up the premises in good repair at the end of the lease term, subject only to exceptions for reasonable wear and tear and damage by fire. Nowadays, it is also good practice to include an express covenant not to contaminate the premises.

The case of Sean Wayland: I look fondly on this case, not for its summer evening facts, but because I often cite it for the proposition that robust reasonable inferences can be drawn from circumstantial evidence, even when the Plaintiff cyclist himself has no idea what happened.

From the standpoint of pure exhilaration, there is nothing quite like leaving a paved street for the relative serenity of a beautiful BC trail. What cyclists don't know is that as soon as you leave the streets, and enter upon public land, as a recreational cyclist, you have virtually no legal rights beyond those of a simple trespasser. Here is the best part – in my mind, this is actually a good thing.

It is frightening enough to be in a collision in an automobile owned and operated by a B.C. resident; what happens when you are riding your bike out of the Province or even out of the Country and you are injured, or your bike is destroyed, or both, by someone with no assets and who lives outside our jurisdiction?

I believe I can say without hesitation that most cyclists who ride the North Shore Mountains would like to see the current freedom to wander persist indefinitely. As a general sentiment, the freedom to roam is desirable. Arguably our law should espouse that sentiment as a reflection of a healthy, spirited society, in which recreation is valued.

The general legal requirement to behave "safely" falls squarely on the shoulders of all cyclists as a result of the Motor Vehicle Act. However, despite the use of terms "safely", and "safety" throughout that statute, nowhere in it are those words defined. Let's face it, there is in this world no such thing as absolute safety in the sense that no accident can occur. What then is the true legal meaning of the word "safe"?

When a cyclist is a victim of a motorist's negligence, damages arise from the cyclist's injuries. Any assessment of those damages must integrate concepts of civil responsibility between members of a civilized community.

For one reason or another, cyclists tend to attract the attention of the police. I am hard pressed to think of a more benign activity than riding a bike, and yet I am often asked by cyclists to comment the issue of police detention. Specifically, cyclists want to know the extent of their rights when confronted by inquisitive police officers.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

Scott Lamb is a litigator with Richards Buell Sutton's Intellectual Property Law Group. He is also a member of the Intellectual Property Institute of Canada and the Licensing Executives Society. Scott has prepared the Trademarks Chapter for the Intellectual Property Law Review that identifies key developments and trends in this area of law in British Columbia.

As we all know the vast majority of brain injury cases will be resolved at mediation. Nevertheless, most counsel will go to great lengths to develop their trial advocacy skills but spend little time on developing the skills necessary to do effective counsel work at mediation.

One of the most important aspects of preparation for mediation is pre-mediation positioning. It really is true that where you wind up has a lot to do with where you start off. In my opinion, careful attention to the aspect of your opening position is vitally important to a successful resolution of your dispute at mediation.

I do find the preparation for trial and the decision as to whether to proceed or settle to be stressful. However, once the trial starts, I find that stress seems to disappear.

In my view, it is part of the role of counsel to take an active part in the rehabilitation of their brain injured clients. There can be little doubt that early, comprehensive rehabilitation efforts are the only way to ensure that the injured person will achieve the maximum recovery possible.

Jim D. Vilvang originally presented on this topic at a Trial Lawyers Seminar in 1993. After reviewing the paper, Jim has added several points which he hopes readers will find to be valuable.

What, when and how to object during jury trials.