SIGNIFICANT CASES

The following is a sample of cases that involved representation from McDaniel & Company.  Many of these cases can be searched on the BC Courts website http://www.courts.gov.bc.ca/ or the Can Law II website http://www.canlii.org/ using their search engines. Over 95% of all cases settle before trial.  These are only some of the cases involving our clients that have  gone to trial or appeal

ADMINISTRATIVE LAW

Bayview Builder’s Supply (1972) Ltd. v. The Queen

This is one of the most important decisions on Expropriation Law in Canada.  It clarified the right of a property owner to recover business losses as well as property value as a result of expropriation.  On behalf of the property owner we pursued this case for ten years with many hearings before the Expropriation Compensation Board of British Columbia and the British Columbia Court of Appeal achieving success on all issues.

Associated Building Credits Ltd. v. The Queen

This is a leading case on the law of expropriation.  The British Columbia Court of Appeal confirmed the right of our client, the property owner, to recover business losses that were incurred before the actual expropriation of the property.

Campbell River Woodworkers & Builders Supply (1966) Ltd. v. The Queen

This is one of the leading cases on the right of an expropriated party to recover costs of the expropriation from the expropriating authority.

Jansen Contracting Ltd. v. The District of North Cowichan

The property of our client was flooded by the discharge of water through a culvert controlled by a municipality.  Both the Supreme Court of British Columbia and the British Columbia Court of Appeal held that our client was entitled to recover the damage caused by the flooding from the municipality.  The case clarified the meaning of the words “natural water course” as they appeared in the Municipal Act of British Columbia.

City of Duncan v. Cowichan Tribes

This was a decision of an arbitrator (Provincial Court Judge Fred Green) which held that our client, the City of Duncan, was entitled to charge the neighbouring Cowichan Indian Band a fee for the provision of certain municipal services like water and fire protection.  As a result of this decision, a successful agreement for the provision of these services was negotiated between the City of Duncan and the Cowichan Tribes.

R. v. Johns

Our client, who owned property on the shore of Lake Cowichan, attempted to clear up the shoreline.  He was charged with damaging fish habitat.  We were successful in proving to the Court that our client’s efforts actually enhanced fish habitat and the charges were dismissed in the Provincial Court of British Columbia.

Huot v. Environmental Health Officer

This was a decision of the British Columbia Environmental Appeal Board that dealt with the installation of a septic system on property near Lake Cowichan, BC.  Our client, the property owner, was successful in obtaining an Order from the Environmental Appeal Board that allowed it to install an innovative septic system that ensured that the lake front environment was protected by way of a covenant registered in favour of the Ministry of Health to ensure that the innovative septic system was operating appropriately and did not present any health concerns.  A similar decision was reached on similar facts in Phillips v. The Environmental Health Officer.

Mortimer v. The Corporation of Land Surveyors of British Columbia

We acted for a British Columbia land surveyor who charged his clients less than the “prescribed rate” for site surveys for mortgage proposes.  He was disciplined by the Corporation of Land Surveyors.  We appealed the disciplinary ruling to the British Columbia Supreme Court on the ground that the tariff offended the Federal Competition Act.  Mr. Justice Dohm of the British Columbia Supreme Court held that the tariff was not enforceable and the decision of the Corporation of Land Surveyors was quashed.

Westhills Land Corporation and Quadra Pacific Properties Corporation v. Assessor, Area 1 (Capital)

We represented the owners of two large properties on the outskirts of Victoria.  The owners planned to develop the properties into a model community over an extended period of time.  The BC Assessment Authority valued the properties at in excess of $150 Million Dollars.  We took the position that these valuations did not reflect the significant risks associated with property development over a long period of time.  We were successful on appeals to the Property Assessment Appeal Board in having the value of the properties reduced to less than 30% of the government’s original assessment.

Silver Campsites Ltd. v. Pulham et al

We acted for the owner of a manufactured home park.  A mother assisted her disabled son with an application to rent a pad in our client’s park.  The son had no credit history.  As a result his mother applied as a “tenant” to rent the pad with her son notwithstanding that she had no intention of ever residing in the park.  We took the position that the mother was a “guarantor” and not a “tenant” and had no right to assignment of a tenancy.  The Dispute Resolution Officer, the Supreme Court of British Columbia and the Court of Appeal said that the mother could be considered a “tenant” even though she had no intention of ever using or occupying the pad.  We continue to be of the view that this decision is wrong.  A tenant must use and occupy property.  A guarantor is not a tenant.

Silver Campsites Ltd. v. James

The Human Rights Tribunal found that our client, a mobile home park owner, had discriminated against a prospective tenant on the basis of disability and source of income. The Human Rights Tribunal awarded the tenant damages for injury to his dignity, feelings and self respect without any evidence of such damage. The Human Rights Tribunal also found that the “acts of discrimination” included documents filed by legal counsel on behalf of our client. We successfully sought judicial review of this decision. The Supreme Court of British Columbia ruled that the Human Rights Tribunal erred in awarding damages when there was no evidence of such damage and in finding that a document filed by a lawyer in a legal proceeding was an “act of discrimination”. The court remitted the matter back to the Human Rights Tribunal for reconsideration

COMMERICAL LAW

Bayview Builder’s Supply (1972) Ltd. v. Leroy et al

This decision of the British Columbia Supreme Court confirmed the right of a supplier of building materials to make a successful claim against the holdback or trust fund which a contractor is obligated to maintain under the Builders Lien Act of British Columbia.

Elliot v. The City of Parksville

We acted for Ms. Elliot who was an officer of the City of Parksville.  Following an illness, she was dismissed by the City of Parksville. As a result, she was not entitled to recover the long term disability benefits which would have been available to her had she been an employee of the City of Parksville.  We appealed this case to the British Columbia Court of Appeal which upheld the trial judge’s decision. 

Patterson v. Westerby

This decision of the Supreme Court of British Columbia upheld the right of a parent, as owner of an insurance policy to designate her infant child as a beneficiary of that policy and protect that benefit from a claim from her estranged husband.

R. v. Island Industrial Services Ltd.

We acted for a manufacturer of woodstoves who was charged under the Competition Act with an allegation of “price fixing”.  The complaint was brought by a disgruntled retailer who our client refused to deal with for reasons totally unrelated to the price at which the stoves were sold.  The Provincial Court of British Columbia dismissed the claim.

Sangha v. Page

Our client, Mr. Sangha as purchaser, entered into an agreement with Ms. Page as vendor to buy a large parcel of land.  Following the completion of the agreement Ms. Page had second thoughts.  The property was unique to the needs of our client and our client brought an action for specific performance.  The Supreme Court of British Columbia upheld our client’s right to specific performance of the agreement.  The British Columbia Court of Appeal upheld the decision of the Supreme Court.

Seibring v. Bootsman

Our client, Mr. Seibring, owned a large parcel of agricultural land.  He leased it to Mr. Bootsman.  Mr. Bootsman had an obligation to look after the property and properly maintain it.  He did not do so.  Mr. Seibring sued Mr. Bootsman for the cost of restoring the land.  Our client was successful.

Close v. Weigh West Marine Resort

We acted for the vendor of the shares in a company that owned a resort property in Tofino.  Following the closing, the purchaser refused to pay the vendor part of the purchase price.  The purchaser relied upon an overly technical interpretation of the Share Purchase Agreement.  We were successful in recovering some of the money from the purchaser following a hearing in the Supreme Court.  We felt that the Supreme Court should have awarded our client all of the money that was owing.  We took the case to the Court of Appeal and the Court of Appeal agreed with our submission.  This case clarified the doctrine of merger in commercial transactions.

Community Savings Credit Union v. United Association of Plumbers & Pipefitters Local 324

We acted for a Union.  The business agent at the time entered into an agreement with the Credit Union which had not been authorized by the executive of the Union.  We argued that the Credit Union knew that the loan was not authorized and therefore it was not entitled to rely upon the signature of the business agent to bind the Union.  The Supreme Court of British Columbia held that the business agent had ostensible authority to bind the Union.  The British Columbia Court of Appeal agreed with the Supreme Court.

Generous Electric Ltd. v. 0726981 B.C. Ltd. and Tyson Creek Hydro Corp.

We acted for an electrical subcontractor who worked on a “run of the river” hydro project.  Our client was owed a substantial amount of money by the contractor.  The contractor went bankrupt.  However, well before its bankruptcy, the contractor had assigned to our client a portion of the amount due to the contractor by the owner.  The owner took the position that it was no longer indebted to our client pursuant to the assignment and sought to dismiss our client’s claim against it.  The Court held that our client had a valid assignment that complied with the technical requirements of the law and that the owner was obligated to pay our client the amount due under the assignment.


ESTATE PLANNING AND ADMINISTRATION

Hutchison v. Giles

In this case, we acted for the mother of a handicapped child who had been disinherited by her mother’s Will.  The Supreme Court of British Columbia confirmed that the Will was not the act of a reasonable parent and awarded our client 45% of the mother’s estate.

Brammel v. Brammel

In this case we acted for one of three sons.  Our client was appointed the executor of his father’s estate.  The two other sons challenged the Will saying it was not valid and that their father did not adequately provide for them.  The Will was held to be valid. The case is interesting in that it addressed the obligations of a parent of adult children all of whom were wealthy and self sufficient.

McGhie v. Muzylloski

In this case, the Supreme Court of British Columbia and the British Columbia Court of Appeal recognized the entitlement of self supporting adult children to a share in their father’s estate notwithstanding that they had had no contact with their father for virtually all of their lives.

Pasko et al v. Pasko et al

This decision of the Supreme Court of British Columbia upheld the right of a competent parent to arrange her affairs during her lifetime to prefer one child over another.  The Court held that those arrangements were appropriate and were not subject to a challenge by disgruntled children after the death of their mother.

FAMILY LAW

Story v. Story

This decision was a five person panel of the British Columbia Court of Appeal and is one of the leading cases in Canada on the entitlement to spousal support after a long term marriage.  Our client, the wife, was unable to work due to illness following her separation from her husband.  The husband argued that the state rather than he should be responsible for supporting his wife.  The Court of Appeal unanimously held that after a long term marriage the obligation for support rests with the spouse and not the state.

Hill v. Hill

The British Columbia Supreme Court held that our client, the wife, who had provided significant assistance to her mother-in-law in the operation of a family business was entitled to share in the husband’s inheritance of that business upon divorce.

Franssen v. Brown

This decision of the British Columbia Supreme Court confirmed that when property is transferred from a common-in-law husband to a common-in-law wife and they own the property jointly and the wife then makes contributions to the mortgage, the parties should be treated as equal owners of the property notwithstanding that the contributions of the husband to the value of the property before the transfer were much greater than the contributions of the wife after.

Elzinga v. Elzinga

This was a decision of the County Court of Vancouver Island in 1977 which awarded our client damages against another man for adultery with his wife.  Following this decision the right to recover damages for adultery in British Columbia was abolished by statute.

Jackson v. Jackson

This is a decision of the Supreme Court of British Columbia which emphasizes the importance of complying with court orders for child maintenance.  We acted for the wife and we negotiated a separation agreement whereby the husband was obliged to pay her child maintenance.  Shortly after the separation agreement was signed, the husband decided to move from Canada to Scotland.  He gave up a well paying job and was unable to find a similar job in Scotland.  He stopped paying child support.  After his economically unsuccessful sojourn in Scotland, he returned to Canada and applied to vary his maintenance obligation and reduce his arrears.  The Court denied both applications, upholding the principle that people with support obligations cannot prefer their own self interest over that of their children.

Van Eeuwen v. Van Eeuwen

We represented a woman who lived, worked and raised a family on a farm originally owned by her husband’s father.  During the marriage the husband’s father transferred part of the farm to the husband.  The husband and the wife separated.  Our client, the wife, claimed that she was entitled to a share of the husband’s interest in the farm.  The husband and his father took the position that the farm really belonged to the father and that the husband (and therefore the wife) had no interest in the farm.  After a lengthy trial and many interim applications, the wife was successful.  The Supreme Court of British Columbia awarded her a significant interest in the farm.

PERSONAL INJURY

McLennan v. Scott

This was a case brought by our client, the father of two young boys whose mother was killed in a car accident.  It was our view that compensation awards to children for the death of a parent made by Judges in British Columbia were inadequate.  We sought to have the issue tried before a jury.  The insurance company argued vigorously against having the matter tried before a jury.  They said the concepts were too complex for a jury to understand.  They were not successful. The case was tried before a jury in Victoria.  We were successful in recovering an award that was more than five times the amount previously ordered by Judges to children for the loss of a parent.

Couturier v. Rudd

We acted for an off duty police officer who was driving his family home from a shopping trip.  A twelve year old boy riding his bike on the side of the road suddenly swerved in front of our client.  He took evasive action but nonetheless struck the boy on this bike.  Both the Supreme Court and the British Columbia Court of Appeal held that our client was not negligent in the circumstances.  The Supreme Court of Canada refused to grant leave to appeal this case.

Buburuz v. Wolfe Chevrolet Oldsmobile Ltd. et al

We acted for a highly skilled finishing carpenter whose hand was struck by the mirror of an oncoming vehicle as he stood on the side of the road.  The mirror shattered the hand and drove the hand into the side of our client’s head causing a head injury.  Mr. Justice Locke of the Supreme Court of British Columbia awarded substantial damages to Mr. Buburuz for his pain and suffering and loss of income.

Adamson v. Charity

This was a complicated personal injury trial that lasted approximately two months.  We represented the defendant, Mr. Charity.  During the course of this trial we dealt with approximately 20 medical witnesses, 10 witnesses on economic matters and various lay witnesses.  The case stands as an example of our ability to deal with complex litigation.

Neish v. Blair

This was a decision of the Supreme Court of British Columbia where we successfully acted on behalf of a woman who suffered significant injuries and damages when a staircase upon which she was standing collapsed.

Pollock v. Lowe

We acted for a man who initially suffered an injury in a motor vehicle accident that was his fault.  He had very painful neck, went to the hospital and was told by the admitting doctor that there was nothing wrong with him and that he should go home.  While at home and while still in considerable pain he fainted and fell striking his neck against the side of his bed.  This resulted in a fracture of the neck.  We sued the doctor for medical negligence.  We were successful at trial.  The doctor appealed to the British Columbia Court of Appeal which upheld the finding of negligence but reduced the award of damages.

Szpradowski v. Ralph et al

This was a jury trial in the Supreme Court of British Columbia in Duncan.  Mr. Szpradowski alleged that he suffered significant injuries in a car accident.  Our client alleged that the injuries were not significant and if they occurred, they occurred after the car accident.  Mr. Szpradowski was seeking in excess of $50,000.00 in damages.  Our client offered to settle the case for $7,000.00.  The jury awarded Mr. Szpradowski $4,000.00.  As a result our client recovered the costs of the trial from Mr. Szpradowski and he recovered nothing.

McKenzie v. Crabb Estate

This was a complicated personal injury claim brought by Mr. McKenzie against our client.  Prior to the trial we offered a very generous settlement which Mr. McKenzie did not accept.  Following a lengthy trial, the Court’s award to Mr. McKenzie was significantly less than the amount offered before the trial.  Mr. McKenzie was penalized in costs for not accepting what was offered.

Morgan v. Hauck

This is one of the leading cases in British Columbia on the law relating to left turns at an intersection.  The Court of Appeal upheld a trial decision which found that a driver proceeding straight through a light controlled intersection, who accelerates prior to the light turning red, may be found liable for the ensuing collision.  Normally, the vehicle proceeding straight through has the right of way and the vehicle turning left should not proceed without ensuring that it is safe to do so.  However, the left turning vehicle is entitled to assume that the vehicle proceeding straight through will stop when the light turns yellow

REAL ESTATE LAW

Rompsen Investment Corporation v. Chemainus Quay and Marina Complex Ltd.

We acted for the developer of a major marina complex in Chemainus Harbour.  The mortgage company that had acquired property that provided access to the marina tried to cancel the right of way that was crucial to the marina’s operation.  The Supreme Court of British Columbia ordered that the right of way be cancelled.  We are of the view that the Supreme Court of British Columbia made a significant error and its decision has been appealed to the Court of Appeal. The Supreme Court took six months to render its decision. The Court of Appeal took 11 months to render a decision on an application for stay of execution. Over the period of almost one and one-half years while it awaited these decisions, our client was unable to do anything with its property. The result was its insolvency. This case is an example of the consequences of cost and delay in litigation.

Woynic Properties Ltd. v. Heron’s Wood Development Ltd.

We acted for a developer who entered into an agreement to purchase development lands from another development company.  Between the date of the agreement and the date of the ultimate completion of the transaction, the value of the lands increased considerably. The owner attempted to get out of the agreement so that it could sell the lands at a higher price.  We were successful in enforcing the agreement and compelling the land owner to sell to our client at the originally agreed price.

Freund v. White

We acted for an older woman who had entered into a contract to sell her home.  Because of the woman’s age the agreement was made conditional upon her son’s approval.  When asked for the approval, the son refused to give it on the basis that the agreement that had been signed by his mother was an improvident one.  The purchaser sued our client alleging that the son had given oral approval.  The Court found that the agreement required written approval which had not been given.  Our client was able to continue to live in and enjoy her home. 

Sangha v. Page

We acted for a man who made an agreement to buy a unique development property from an elderly but astute woman.  After the agreement was made the woman changed her mind and did not want to sell the property.  Our client sued for specific performance of the contract.  He was successful at trial.  The Court of Appeal upheld his right to require the contract to be completed.  Our client became the owner of the property.  

Dick et al v. Dodds et al

We represented the landlord in a commercial tenancy dispute with his tenant.  The landlord terminated the lease for failure to pay rent.  The tenant sued the landlord alleging that the lease had been wrongfully terminated.  During the course of litigation, an articled law student representing the tenant, threatened to sue the landlord’s original lawyer.  On behalf of the landlord we brought on an application for summary judgment dismissing the tenant’s lawsuit.  The landlord was successful.  The behaviour of the law student and the supervising lawyer was the subject of instructive and critical comment by the Supreme Court of British Columbia.

Fitness Edge Health Club Ltd. v. 636238 B.C. Ltd.

This was a commercial tenancy dispute between our client, the landlord, and the tenant, Fitness Edge Health Club Ltd.  Our client terminated the lease for failure to pay rent.  Fitness Edge commenced a lawsuit against our client for wrongful termination.  We were successful in having the claim of the tenant dismissed in a summary trial and our client recovered substantial damages from the tenant.

Buss v. Meichsner  

This case involved a dispute about an Easement.  We represented the Plaintiffs, who owned property against which an Easement was registered in favour of the Defendant.  The Defendant alleged that he had the right to drive and cut down trees on the Plaintiffs’ property.  We submitted that because there was no way for a motor vehicle to get to the property and because the property was in a riparian zone, the Defendant should not be allowed to do either.  The court agreed with us and issued an injunction against the Defendant.  The court also ordered the Defendant to pay our clients’ costs after that issue was litigated.

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