DuMoulin Boskovich LLP

What Is a Foreclosure Anyway?

admin — Wed, 07 Mar 2012 22:36:49 +0000

Many people do not understand the process of foreclosure. It is the means by which a mortgage lender enforces his right to be repaid his money.

When a borrower gets a mortgage loan, technically he pledges the title to his property, almost like a loan from a pawn broker. The mortgage document says that if the loan does not get repaid on time, in accordance with terms of the loan, the lender can take the property and sell it to collect his money.

Usually a mortgage has a number of promises by the borrower, such as making the periodic payments, paying the taxes, maintaining insurance and keeping the property good repair.

If the borrower fails to do any of these things, he can expect to receive a letter from the lender (or his lawyer) advising that he is in default, and that if things are not put right action will be taken.

The mortgage usually has a provision that if there is a default the lender can demand the whole balance due. This is called an “acceleration clause”. If the lender demands the balance, and the borrower does not pay up, the lender may begin foreclosure proceedings in the Supreme Court of British Columbia.

In those proceedings the lender will typically ask the court to make a declaration that the mortgage is in default, and an order fixing the amount due and owing. He will also probably seek an order fixing a “redemption period”, a time within which the borrower may pay off the loan and get title to his property back. Finally, he will ask to court to order that if the loan is not repaid by the end of the redemption period he can take title to the property himself.

When the case gets in front of a judge, usually the redemption period is fixed at six months, unless there is very little or no equity left in the property. If there is a risk the lender may not get all of his money from the property, the court may order a shorter redemption period.

The order the court makes is called an “order nisi”, a sort of interim order, but it will usually include a judgment against the borrowers personally in addition to the orders involving the property.

If the loan is not paid off, at the end of six months the lender will usually have a choice to seek an “order absolute”, which will transfer the property into the lender’s name, or more commonly the lender will ask the court to allow him to list and sell the property.

If the property is ordered sold, any offer has to be presented to court for approval. The borrower always has the right to argue against any sale on the basis that it is improvident, or that he needs more time, or perhaps some other reason.

When the property is sold by a court order, the proceeds of sale are paid out in accordance with the order approving the sale. Commission, taxes, strata fees and the like are paid first; then the first lender gets paid. If there is money left, it goes to any subsequent mortgage holder, and finally to the borrower.

If there is a second mortgage holder, he will lose his security if the first lender obtains an order absolute, so he has an interest in getting the property sold earlier. The court will often allow the second mortgagee to list the property for sale during the redemption period.

Of course, the second mortgagee always has the right to redeem the first mortgage and step into that lender’s shoes.

In many U.S. states, residential mortgages are “non-recourse” loans. That means that if the lender enforces his rights by foreclosure, he can look to the property but not to the borrower personally to repay the loan. That is not the case in B.C., unless the lender obtains an order absolute. In that case any indebtedness arising from the mortgage is extinguished.

If the lender chooses instead of asking for an order absolute to seek an order for sale, and any debt remains after applying the proceeds of sale, the lender still has a claim against the borrower for the shortfall.

DuMoulin Boskovich LLP assists both lenders and borrowers in matters relating to foreclosure and enforcement of security. Contact Andy Sandilands, Peter Kletas or Ross Ellis for advice, or if you have any questions about your situation.

Contact Andy Sandilands of DuMoulin Boskovich LLP for your legal needs.

andy@dubo.com

Consent to Health Care Decisions

admin — Fri, 10 Feb 2012 16:29:46 +0000

As mentioned in a previous blog, in general any interference with a person’s body without that person’s consent constitutes the tort of battery. Under the law in British Columbia, a health care provider is not permitted to provide any health care to an adult without the adult’s consent (consent is defined to be a voluntary, informed decision about the specific proposed health care), except under limited circumstances. An adult has the right to give or refuse consent to health care for any reason, including moral or religious grounds, even if the refusal will result in the adult’s death.

Consent may be given orally or in writing, or it may be inferred from the adult’s conduct. But what if the adult is not able to give consent? The Health Care (Consent) and Care Facility (Admission) Act (the “Act”) outlines the procedure for obtaining consent in order for an adult to receive health care treatment.

The health care provider must make every reasonable effort to obtain consent from the adult before seeking consent from other sources. To obtain consent, the health care provider must explain the proposed treatment, including:

the medical condition to be treated;

the nature and the risks and benefits of the treatment;

alternative types of treatment; and

the likely consequences of receiving no treatment.

The adult or substitute decision maker must have the opportunity to ask questions and receive answers about the proposed treatment.

For most types of health care, the health care provider must attempt to obtain consent or substitute consent or refusal in the following order of priority:

from the adult;

from the adult’s court-appointed committee;

from the adult’s representative appointed under a representation agreement;

from the adult’s advance directive, if the advance directive specifically addresses the proposed treatment;

from the temporary substitute decision maker (“TSDM”) in the following order of priority:
the adult’s

a) spouse;

b) child;

c) parent;

d) sibling;

e) grandparent;

f) grandchild;

g) other relative related by birth or adoption;

h) close friend;

i) a person immediately related to the adult by marriage.

The TSDM must be at least 19 years of age, have been in contact with the adult during the past 12 months, and have no dispute with the adult;

6. from an individual authorized by the Public Guardian and Trustee.

Temporary substitute decision makers

Choosing a TSDM:

A health care provider is only required to make an effort that is reasonable in the circumstances to obtain substitute consent from a TSDM, considering the urgency of the situation and available time and resources. The TSDM must be available, qualified to act as a TSDM and willing to make the decision.

A TSDM is chosen whenever consent is required, which is for each particular health care decision or course of treatment. In other words, a TSDM makes decisions on an ad hoc basis and a different TSDM may be selected for different decisions, depending on the TSDM’s availability and willingness to act.

Limited scope of authority:

A TSDM may refuse substitute consent to health care necessary to preserve the adult’s life only if there is substantial agreement among the health care providers that the decision is medically appropriate, and the TSDM has consulted with the adult to the greatest extent possible, complies with any wishes the adult expressed while capable and acts in the adult’s best interests.

A TSDM cannot give or refuse substitute consent to certain types of health care that are of a more serious nature, including:

abortion (unless recommended by at least two medical practitioners);

electroconvulsive therapy (unless recommended by at least two medical practitioners);

psychosurgery; and

experimental health care involving significant risk to the adult.

A TSDM’s authority does not include decisions with respect to the adult’s personal care; for example, the adult’s living arrangements, diet, dress and participation in social or recreational activities.

If an adult does not want the individuals in the order of priority designated by the Act to give or refuse consent on the adult’s behalf (the individuals might not share the adult’s views on health care or there might be conflict among the individuals), wants a decision maker to have broader authority to make health care decisions, or wants a decision maker for personal care, the adult should appoint a representative and set out the representative’s scope of authority in a representation agreement. Such planning enables an adult to choose a trusted friend or family member and make obtaining substitute consent an easier process.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

Advance Directives

admin — Mon, 30 Jan 2012 16:41:08 +0000

As of September 1, 2011, an advance directive is legally binding pursuant to the amended Health Care (Consent) and Care Facility (Admission) Act. An advance directive is a document in which an adult sets out instructions giving or refusing consent to health care, to be used when the adult is incapable of giving instructions at the time the health care is required. For example, an adult may refuse blood transfusions in an advance directive on religious or other grounds.

Generally, any interference with a person’s body without that person’s consent constitutes the tort of battery. Under the law in British Columbia, a health care provider is not permitted to provide health care to an adult without the adult’s consent (consent is defined to be a voluntary, informed decision about the specific proposed health care), except under limited circumstances, including:

an authorized substitute decision maker gives substitute consent on the adult’s behalf;

there is no authorized substitute decision maker available in an emergency situation where it is necessary to provide the health care without delay in order to preserve the adult’s life, to prevent serious physical or mental harm or to alleviate severe pain, and the adult is, in the health care provider’s opinion, incapable of giving or refusing consent;

informed consent is not required for triage or preliminary examination if the adult indicates the desire to be provided with health care, or if the adult is unable to provide such indication, the adult’s relative or close friend indicates he or she wants the adult to be provided with health care.

An adult may make an advance directive if the adult understands its nature and effect, and through the advance directive may give or refuse consent to most (but not all) types of health care.

If a health care provider is aware the adult has an advance directive relevant to the proposed health care, the health care provider:

may provide health care to the adult if the adult has given consent to that health care in the advance directive; and

must not provide health care to the adult if the adult has refused consent to that health care in the advance directive.

A health care provider is required to make a reasonable effort in the circumstances to determine if the adult has an advance directive.

If a health care provider provides health care to the adult unaware the adult has an advance directive refusing consent to the specific health care and subsequently becomes aware of the advance directive, the health care provider must withdraw the health care.

An advance directive does not apply, and a health care provider is not required to follow its instructions, if the health care provider reasonably believes that:

the instructions in the advance directive do not address the health care decision to be made;

the instructions in the advance directive are unclear;

since the advance directive was made, the adult’s wishes, values or beliefs in relation to a health care decision have significantly changed; or

since the advance directive was made, there have been significant changes in medical knowledge or technology that might substantially benefit the adult in relation to the health care addressed in the advance directive. The adult may exclude this ground in the advance directive and instruct that the advance directive applies despite medical advances.

The advance directive must be signed and dated by an adult and two witnesses, all present together at the same time (only one witness is required if the witness is a lawyer or notary public). The following persons may not act as a witness:

a person who provides personal care, health care or financial services to the adult for compensation, or a spouse, child, parent, employee or agent of that person;

a person under the age of 19;

a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance.

The adult may change or revoke the advance directive if the adult is capable of understanding the nature and consequences of the change or revocation.

While an advance directive is useful in communicating instructions directly to health care providers when you are incapable of doing so, you are unlikely able in an advance directive to address all types of health care that may arise requiring consent. Appointing a representative in a representation agreement to make health care decisions on your behalf gives more flexibility for decision-making based on your wishes and the circumstances at the time. The difference between an advance directive and a representation agreement is that an advance directive instructs the health care provider directly, whereas a representation agreement authorizes another person to instruct the health care provider on your behalf.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

Enduring Powers of Attorney

admin — Thu, 26 Jan 2012 21:08:26 +0000

The start of a new year is a good time to review your estate planning goals and it is a good time to make necessary provisions in the event of your incapacity or death. Such planning not only enables you to take control of your financial and health care matters, it also communicates your wishes to your family and friends so they are not left wondering how to handle your affairs.

On September 1, 2011, amended legislation came into effect with respect to powers of attorney, representation agreements, and advance directives.

ENDURING POWERS OF ATTORNEY

Changes to the Power of Attorney Act as of September 1, 2011 set out certain requirements for enduring powers of attorney (“EPOA”). An EPOA is a power of attorney whose authority continues after the adult becomes incapable.

It is important to understand that a capable adult may still manage his or her own financial affairs when the EPOA is in effect; an EPOA does not take away the adult’s ability to act.

The following is an overview of some of the rules and requirements for EPOAs (note: this is not intended to be exhaustive; for detailed information or legal advice you should consult a lawyer).

Adult’s capacity

the property the adult has and its approximate value;
the obligations the adult owes to his or her dependants;
that the attorney will be able to do on the adult’s behalf anything in respect of the adult’s financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the EPOA;
that, unless the attorney manages the adult’s business and property prudently, their value may decline;
that the attorney might misuse the attorney’s authority;
that the adult may, if capable, revoke the EPOA;
any other matter prescribed by law.

Who may act as attorney

a person who

provides personal care or health care services to the adult for compensation, or
is an employee of a facility in which the adult resides and through which the adult receives personal care or health care services,

unless that person is a child, parent or spouse of the adult.

Execution

• The EPOA must be signed by the adult and two witnesses, all present together at the same time; if the witness is a lawyer or a notary public, only one witness is required.

• Before the attorney may exercise the authority granted under the EPOA, the EPOA must be signed by the attorney and two witnesses, all present together at the same time; if the witness is a lawyer or a notary public, only one witness is required. The attorney is not required to sign in the presence of the adult.

• There are restrictions as to who may act as a witness. The following persons may not act as a witness:

a person named in the EPOA as an attorney;
a spouse, child or parent of a person named in the EPOA as an attorney;
an employee or agent of a person named in the EPOA as an attorney, unless the person named as an attorney is

a person under the age of 19;
a person who does not understand the type of communication used by the adult, unless the person receives interpretive assistance to understand that type of communication.

Effective date

• An EPOA is effective on the latest of:

the date when the EPOA has been signed by both the adult and the attorney;
the date specified in the EPOA as being the effective date; and
the occurrence of an event described in the EPOA, in which case the EPOA must state how and by whom the event is to be confirmed.

Duties of attorney

act honestly and in good faith;
exercise the care, diligence and skill of a reasonably prudent person;
act within the authority given in the EPOA and under any applicable laws;
to the extent reasonable, foster the adult’s independence and encourage the adult’s involvement in the decision-making;
not dispose of property the attorney knows is subject to a specific testamentary gift in the adult’s will, unless the disposition is necessary to comply with the attorney’s duties;
unless the EPOA states otherwise, invest the adult’s property only in accordance with the Trustee Act;
to the extent reasonable, keep the adult’s personal effects at the adult’s disposal;
keep the adult’s property separate from the attorney’s own property, except for property that is jointly owned by the adult and the attorney;
make a reasonable effort to determine and make a list of the adult’s property and liabilities as of the date on which the attorney first exercises authority on the adult’s behalf;
keep the following records in relation to the period for which the attorney is acting:

a) a current list of the adult’s property and liabilities, including an estimate of their value if it is reasonable to do so;
b) accounts and other records respecting the exercise of the attorney’s authority;
c) all invoices, bank statements and other records necessary to create full accounts respecting the receipt or disbursement, on behalf of the adult, of capital or income.

Maximum amount of gifts and loans

- 10% of the adult’s taxable income for the previous year, or
- $5 000,

whichever is less, provided the adult has sufficient property remaining to meet the adult’s needs and legal obligations, and the adult made gifts or loans of that nature when capable.

Access to adult’s will

• If the adult does not wish the attorney to access the adult’s will, the adult must provide instructions to that effect to the lawyer or notary public holding the will, or include such instructions in the will itself.

Compensation

• If the adult wishes to compensate the attorney, the EPOA must expressly authorize the compensation and set the amount or rate.

Resignation of attorney

• If the person named as attorney has not signed the EPOA, notice of resignation is not required.

Changing or revoking EPOA

• A capable adult may change or revoke an EPOA and must give written notice of the change or revocation to each attorney. The adult should also give written notice to any institutions or other third parties where the EPOA was previously delivered or used.

Report to the Public Guardian and Trustee

• Any person who has reason to believe that the adult made the EPOA when incapable or under undue pressure, or that the attorney is abusing or neglecting the adult, may make a report to the Public Guardian and Trustee.

The complexity of the EPOA has increased due to the amendments to the Power of Attorney Act. You must comply with certain rules in order for the EPOA to be valid. However, you may still tailor the terms of your EPOA to your own circumstances, thus ensuring your attorney has the authority to manage your financial affairs in the manner you have chosen.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

Appointed Guardian for Minor Children

admin — Mon, 16 Jan 2012 20:16:35 +0000

Nearly two-thirds (63%) of Canadian parents have not appointed a guardian for their minor children, according to a recent study conducted by BMO Private Harris Banking.

In British Columbia if both parents die without appointing a guardian for their minor child, the Public Guardian and Trustee becomes guardian of the child’s estate, and the Ministry of Child and Family Development becomes guardian of the child, with responsibility for the child’s upbringing, health and education. A person may then apply to court to become the child’s guardian, and a judge will make a decision based on what he or she believes to be in the child’s best interests. Problems arise, however, if there are competing applicants, or, if there are no applicants, the child may be placed in foster care. The process may be complex, expensive and, more importantly, the parents have no control over who raises their child.

It is therefore critical for parents to legally appoint someone they trust to be the guardian, and they can do so by naming that person (or persons) in their wills. Further, parents can appoint in their wills a guardian (trustee) for the child’s estate as well as for the child. Parents should first discuss their wishes with the intended guardian to ensure he or she is willing to take on the responsibility.

The law provides us with tools to plan for the future; we should take advantage of that opportunity, especially when it comes to something as important as our children.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

Contributory Negligence (or Fasten Your Seatbealt!)

admin — Wed, 19 Oct 2011 17:30:43 +0000

An individual has a responsibility to care for his or her own safety.

In a lawsuit, when a plaintiff contributes negligently to causing his or her own injury the court must determine to what extent that person is at fault for their own injury. This is referred to in law as “contributory negligence” and the onus, that is the burden of proof, lies on the defendant to establish contributory negligence. Once established, apportionment is based on the degree to which each person was at fault, not on the basis to which each person’s fault caused the damage or loss. In assessing comparative fault, or blameworthiness, the court must consider the degree of risk created by each of the parties and apportion liability based on the nature and extent of each party’s departure from the relevant standard of care. The levels of fault under consideration may vary from a reckless disregard for safety to a minor lapse of care.

If a court finds that a plaintiff is contributorily negligent, the court will reduce the plaintiff’s award for damages by the degree that it has determined the plaintiff is at fault.

In motor vehicle accident cases the defence of contributory negligence may be advanced in a wide variety of circumstances. Not uncommonly, a plaintiff’s failure to wear a seatbelt is one; voluntarily riding with an impaired driver is another.

A plaintiff may be found to have failed to take reasonable care for his or her own safety by not wearing an available seatbelt or by accepting a ride in a vehicle not equipped with seatbelts. If a seatbelt was available but not worn, the evidence must establish that it was operational and the plaintiff’s injuries would have been reduced by usage to justify a finding of contributory negligence. Although there is no hard and fast rule as to apportionment in cases involving a successful seatbelt defence, the plaintiff is often held to be 10% to 25% contributorily negligent for failing to wear a seatbelt.

What is no seatbelts are available in the vehicle at all? In Thon v. Podollan, 2001 BCSC 194 the judge found the plaintiffs were contributorily negligent for accepting a ride in a vehicle not equipped with seatbelts and apportioned liability of 10% to each of them. In so doing, he explained the difference between cases involving an available but unused seatbelt and those in which a seatbelt is unavailable. At paragraphs 56 and 57, he stated:

[56] Counsel for the defendants submits that the plaintiffs were contributorily negligent in assuming the risk of driving in the back seat of the Podollan vehicle when it was not equipped with seat belts. He submits that if they had refused that risk, by not getting in the backseat of a vehicle not equipped with seat belts, they would not have sustained their injuries …

[57] I find the defendants’ argument that, in this case, Tammy and Tanya did not take reasonable care for their own interests, and thus contributed to their own injuries, by riding in a vehicle not equipped with seat belts, to be unanswerable. Counsel for the plaintiffs submits that, even if the defendants have established the first part of the so-called “seat belt defence”, as set out in Gagnon v. Beaulieu, [1997] 1 W.W.R. 702 (B.C.S.C.), they have not established the second branch, that the injuries would have been prevented or less severe if it had been worn. However, the argument is not that the injuries would have been prevented or reduced, if the plaintiffs had worn an available seat belt. Rather, it is that the injuries would have been avoided entirely if the plaintiffs had not assumed the risk of riding in the back of the Jeep without seat belts. As counsel for the defendants pointed out, the important distinction between choosing to ride in a vehicle without a seat belt, and choosing not to wear an available seat belt, relates to the consequences of the negligence. In the former circumstances, the exercise of reasonable care would have avoided the injuries in their entirety; in the latter circumstances, involvement in the accident would not have been avoided, and the issue thus arises as to whether the injuries would have been reduced by seat belt usage…

A plaintiff may also be found to have failed to take reasonable care for his or her own safety by accepting a ride with an intoxicated driver when the plaintiff knew or should have known of the driver’s intoxication when the ride was accepted. An objective assessment of all of the circumstances is required and, where the plaintiff joins the defendant in becoming intoxicated, liability may be imposed taking into account their joint participation in a hazardous enterprise. In such cases, the plaintiff is often held to be 25% to 40% contributorily negligent.

In Neufeld v. Foster, [1999] B.C.J. No. 764, the Court considered defences of contributory negligence based on both the plaintiff’s failure to wear an available seat belt and voluntarily riding with an impaired driver. The plaintiff, the defendant and others were over-served alcohol at a pub, left the pub intoxicated and were involved in an accident shortly thereafter. The Court concluded that the evidence did not prove the plaintiff’s injuries would have been reduced if she had worn the seat belt. She accepted, however, that the plaintiff knew the driver was intoxicated and failed to show appropriate regard for her own safety by accepting the ride. In these circumstances, she apportioned liability 50% to the defendant, 20% to the pub and 30% to the plaintiff.

The law’s reduction of an individual’s award for damages by the degree that it has determined the plaintiff is at fault is simply common sense; individuals have a duty to themselves to take reasonable care for his or her own safety.

Contact Andrew Spence at DuMoulin Boskovich LLP for your legal needs.

aspence@dubo.com

“UMP” – Underinsured Motorist Protection

admin — Wed, 31 Aug 2011 21:51:09 +0000

When you purchase or renew your car insurance you may notice references to Underinsured Motorist Protection, commonly referred to as UMP. You may also be asked whether you are interested in doubling your UMP coverage, from $1M to $2M, for a nominal annual fee. This blog entry aims to explain what UMP is and how it can be an important part of your insurance portfolio.

UMP is first party insurance that is available in claims where an at-fault motorist has insufficient or no liability insurance or other assets with which to satisfy the full amount of a claim or judgment. In the province of British Columbia, UMP coverage is mandatory and is attached to every owner’s and driver’s certificate issued.

UMP coverage applies where the injury or death of an insured person takes place as a result of a motor vehicle accident that involves the use or operation of a motor vehicle by an underinsured motorist where the accident occurs in Canada or the United States of America or on a vessel traveling between Canada and the United States of America. It also applies to situations involving hit and run accidents where the accident occurs on a highway in the Yukon, Northwest Territories or United States of America where there is actual physical contact between the person insured or the vehicle occupied by the insured and the unidentified vehicle.

When there is UMP coverage by way of an owner’s certificate, it covers all occupants being carried in the vehicle for which the certificate is issued. UMP coverage provided by way of a driver’s certificate extends to all members of the household of the holder of the driver’s certificate.

The coverage provided is $1M per person, per incident, less applicable deductible amounts. In situations where there is more than one certificate available to an injured person, a person is only compensated under one of them. When UMP coverage available to a person through both an owner’s and a driver’s certificate, the compensation is provided under the owner’s certificate.

As noted at the outset, you can purchase excess Underinsured Motorist Protection coverage and by doing so you increase your coverage to $2M less applicable deductible amounts. You should speak with your insurance broker to increase your coverage.

The law relating to UMP coverage, including the situations where it is unavailable and the amount and nature of deductible amounts, is complex. Further, any dispute as to whether or not a person is entitled to such compensation, or regarding the amount of the compensation, is determined by way of arbitration.
The lawyers at DuMoulin Boskovich LLP have many years of combined experience in dealing with UMP claims and the technically challenging rules and legislation underlying them. We can help ensure that you receive the appropriate advice in this area and that any claim is handled professionally.

Contact Jon Walsh of DuMoulin Boskovich LLP for your legal needs.

jwalsh@dubo.com

Why You Should Have a Power of Attorney

admin — Thu, 21 Jul 2011 19:23:20 +0000

A power of attorney allows you (the donor) to choose someone (the attorney) to manage your financial and legal affairs on your behalf if you become mentally or physically incapable of doing so yourself; for example, if you become mentally incompetent, are injured in an accident, or plan to be out of town for a period of time.

The power of attorney can be specific or broad, ranging from purchasing or selling a piece of real estate to paying your bills and receiving payments to you. However, your attorney cannot make health care decisions for you under a power of attorney.

If you do not have a power of attorney in place and you become incapable of managing your affairs, your family or friends might be required to apply to court for a committeeship in order to act on your behalf.

Powers of attorney are not all the same. They may have different features, depending on what you need. Some examples are:

1. General power of attorney – The attorney may act on behalf of the donor in all financial matters. A general power of attorney becomes effective immediately on execution, but ends when the donor becomes mentally incapable.

2. Limited power of attorney – The donor specifies what the attorney has authority to do; for example, to complete a specific business transaction, or that the power of attorney is effective for a certain period of time.

3. Enduring power of attorney – The power of attorney continues even after the donor becomes mentally incapable.

4. Springing power of attorney – The power of attorney becomes effective only on the occurrence of a specified event; for example, when the donor becomes mentally incapable.

The donor must be at least 19 years of age and mentally capable when making a power of attorney. The donor may revoke the power of attorney at any time, provided the donor is mentally capable at the time of revocation.

The attorney must be at least 19 years of age, capable of handling the donor’s affairs and willing to act as the attorney. The donor may appoint more than one attorney and specify that they must act jointly, or allow them to act separately on certain matters. The attorney does not need to be a lawyer.

The power of attorney is automatically terminated when either the donor or the attorney dies.

The benefit of having a power of attorney in place, properly prepared to meet your needs, is that you are able to choose the person you trust the most to manage your affairs when you are away, or when you can no longer do so yourself.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com

Goods Remaining on Property at the End of a Commercial Lease.

admin — Wed, 13 Jul 2011 22:32:13 +0000

A common problem for commercial landlords are goods left on the property after a lease has ended. Since the tenant left the items it is commonly thought that these goods can be disposed of however the landlord pleases. That is not the case.

When goods are left on a property after the expiry of a lease the landlord becomes an “involuntary bailee”. A legal term for someone who is in possession of another person’s property but does not own it and does not want to have possession. Unfortunately as an “involuntary bailee” you have a “duty of care”, or a responsibility, to take reasonable care of these goods. It has been found that moving the goods to another premise for storage or moving them within the premise is reasonable. Selling them or discarding them is not.

The duty of care can be discharged by two methods:
- Seeking a declaration from the court that the goods have been abandoned; or
- Giving notice to the former tenant with a reasonable time for the retrieval of the goods.

The former is a relatively involved process but ensures that there are no claims to the goods. The latter is a cheaper method but could still be contested by the former tenant. A rule of thumb when choosing a course of action is if the goods are expensive or the true owner could be unaware of their location, such as goods already sold, seek a declaration. If the goods are relatively inexpensive then the latter method should be chosen.

After the duty has been discharged the landlord can dispose of the items as he wishes. It is important to remember that if a landlord tries to charge a former tenant with a storage fee then the landlord is no longer an “involuntary bailee” but instead a “bailee for hire” which changes the “duty of care”. This should generally be avoided.

The final way to ensure that both parties are protected is to have a well drafted lease. In the lease it should stipulate what is to happen to goods left on the premises after the end of the lease. This should include a time frame for retrieval of the items, who will be responsible for the removal and who will be the recipient of the proceeds of sale. A well drafted lease can prevent headaches down the road and is worthwhile investment for all commercial tenancies.

Contact Peter Kletas of DuMoulin Boskovich LLP for your legal needs.

Peter@dubo.com

Articling at DuMoulin Boskovich LLP

admin — Wed, 29 Jun 2011 15:29:44 +0000

In the past few weeks, a number of law students have asked to meet with me to discuss articling at DuMoulin Boskovich. “Sure,” I say, “I’d love to speak with you. Let’s meet at the cafe across the street; the boardroom is a bit formal.” But I’m also thinking, I could really use another coffee!

So we meet and it always brings me back to the time when I was in their position, looking for articles. How daunting it was when the competition was tough and the economy tougher. How lucky I was to be offered articles at DuMoulin Boskovich, a reputable, mid-sized downtown firm.

Some questions frequently asked by the students and answers given by me:

Q: What practice areas do you have?
A: Our main practice areas are general litigation, personal injury, insurance, corporate-commercial, real estate and wills & estates. Other areas are family, employment and insolvency.

Q: Does the firm have a formal rotation?
A: No, you do everything everyone gives you, when they give it to you.

Q: How many students does the firm hire?
A: In the past, it generally hired two per year. In the last few years, it has hired one.

Q: Since there’s only one student, the student doesn’t have to put on a “Christmas skit”, does he/she?
A: That’s what I thought but the misconception was quickly cleared up. Go Andrew!

Q: Does the firm give the articled student Canucks tickets?
A: (Are you crazy??) Only if your dad, or mom, is a VIC–Very Important Client.

Several lawyers at the firm completed their articles here, including one of the partners. And me. Yes, I was called recently and have been hired back as an associate. Needless to say, I’m thrilled and I look forward to a rewarding career at DuMoulin Boskovich LLP.

Contact Jennifer Chew of DuMoulin Boskovich LLP for your legal needs.

jchew@dubo.com