OnPoint BC Take Five September 2013

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BRITISH COLUMBIA EDITION EDITION

INSIDE THIS ISSUE:

Motor Vehicle Act; Administrative Law; Driving Prohibitions

Contracts; Representations and Warranties; Real Property

Arbitration; Civil Practice and Procedure - With Counsel Comments

Labour law; Collective Bargaining; Arbitration; Constitutional Law

Pensions; Limitation Periods - With Counsel Comments

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Prepare to Win.

O N P O I N TLEGAL RESEARCH

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September 2013

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Featured Cases:

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Research and High Tea, Together at Last... Register for our 4th annual legal research course. Earn 6 CPD credits and learn from the best. Our panel is comprised of

research lawyers from OnPoint, Davis LLP, Borden Ladner Gervais, and Dentons LLP.

We are pleased to be serving full afternoon tea at the Four Seasons during our afternoon session- see p.2 for more details

“Excellent speakers – I only dream of being as well educated and well spoken.”

“For a lawyer in private practice who wants to research the law with confidence, it was well worth the price of admission.”

“I really enjoyed the course. I found the information very practical and pertinent to my work.”

Research to a

T

We are pleased to be serving Four Seasons' full afternoon tea during our afternoon presentation. Enjoy an assortment of finger sandwiches, scones with Devonshire cream, opera cake, French macarons, lemon tartlets, and other assorted petit fours, along with a selection of teas or coffee.

FOURTH ANNUAL ONPOINT LEGAL RESEARCH FEATURE COURSE

Legal Research: From Issues to Solutions 2013

Comments from past attendees:

November 28, 2013The Four Seasons Hotel

Vancouver, BC 9:00 am - 4:15 pm

Includes Full Afternon High Tea Service

Earn 6 CPD CrEDits

inCLUDEs 2 HOUrs EtHiCs/PraCtiCE MGMt

COMPOnEnt

“A practical and comprehensive summary of legal research tools and techniques. The presenters really

knew their craft.”

Earn 6 CPD CrEDits

inCLUDEs 2 HOUrs EtHiCs/PraCtiCE MGMt

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OnPoint Legal Research L.C. has been researching and preparing memoranda and facta for other lawyers for over 14 years. In

the fourth annual presentation of this course, OnPoint research lawyers and guest research lawyers from Davis LLP, Borden Ladner Gervais, and Dentons Canada LLP will draw from their experience to demonstrate how to map out research strategies, examine which resources to use to tackle various problems, and navigate through electronic sources. We will provide countless “insider” tips, discuss legislative research techniques, and lead an interactive session on how to approach a sample legal issue.

Who should attend?

We have created this course for all levels. It is appropriate for senior lawyers wanting a refresher course or needing to be updated on the lastest techniques, junior lawyers wishing to become better researchers, and students wanting to start off their careers with valuable tips from research specialists.

Paralegals will also benefit from this course.


Ellen Vandergrift, OnPoint Legal Research- Ellen clerked at the Court of Appeal of Alberta before articling and practicing at Fraser Milner Casgrain. She subsequently spent several years as legal counsel to the Queen’s Bench and has now been with OnPoint for over eight years. She is well-suited to appellate work and particularly enjoys researching and analyzing complex legal issues and preparing facta.

Our Panel Knows Research

Chair: Sarah Picciotto, Founder of OnPoint Legal Research- As a clerk to the B.C.S.C. in 1998, Sarah learned the importance of sound legal research. She gained practical experience as a litigator with Edwards Kenny & Bray before leaving practice to establish OnPoint in 2000. Sarah is committed to providing OnPoint’s clients with a competitive edge. She is dedicated to ensuring that OnPoint produces nothing less than exceptional work and offers outstanding service.

Monika Gehlen, Davis LLP- Monika is a partner with Davis LLP, where she specializes in written advocacy, appellate practice, legal opinions, and strategic advice. As a member of the firm's Legal Research and Litigation Practice Groups, Monika has extensive experience in the research and analysis of complex legal issues.

Do-Ellen Hansen, Borden Ladner Gervais- As a partner at Borden Ladner Gervais, Do-Ellen provides complex research analysis and advice on diverse legal issues to private and Crown corporations, banks, and insurers. In the course of her practice, she regularly prepares legal opinions and analyses, litigation briefs, and legal arguments for trials, appeals, and arbitrations.

Michelle Maniago, Borden Ladner Gervais-Michelle Maniago practises in the area of civil litigation and arbitration at Borden Ladner Gervais, with an emphasis on commercial and corporate disputes. She also practises as a legal research lawyer and works with both solicitors and litigators to prepare legal opinions. Prior to joining the firm, Michelle had the opportunity to hone her legal research skills as a clerk with the B.C.C.A.


Meghan Maddigan, Legal Community Liason, Courthouse Libraries BC- Meghan is the point person for training at the library and is committed to helping lawyers succeed in their practice through outreach. Prior to joining Courthouse Libraries BC in 2010, Meghan practiced law for five years with a small firm where she gained first-hand experience learning what is required to conduct successful legal research in private practice.

Eric Sherbine, Dentons Canada LLP- Eric Sherbine is a Research Specialist with Dentons Canada LLP, where he provides legal and business research services. He has substantial legal research experience in both Canada and the United States. Prior to immigrating to Canada, he practiced as an employment and labour lawyer in the US.

Agenda- Legal Research: From Issues to Solutions 2013

8:30- 9:00 Registration and Pastries and Coffee

9:00- 9:15 Welcome from Sarah Picciotto, Founder of OnPoint

9:15- 10:00 Ellen Vandergrift- “Starting Out on the Expedition and Staying on the Right Course”

- The importance of paper and online secondary materials in legal research (texts, digests, encyclopedias and course materials) - Tips on the best secondary sources to use and how to make the most of them - Making good research choices- when to stop, when to take a different path, when to check back with the client or supervising lawyer

10:00-10:45 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part One: The General"

- Insider tips from research lawyers who perform computer research every day - Tips on how to construct effective searches and manage search results - Noting up as an essential research tool

10:30- 10:45 Coffee break

10:45- 12:00 Do-Ellen Hansen, Michelle Maniago and Ellen Vandergrift- "Navigating the Electronic Terrain, Part Two: The Specific"

- Pointers on when to use which resource for what task - Cost-efficient uses of electronic resources - Important resources for keeping current

12:00- 1:00 Lunch (on your own, but save room for Full Afternoon Tea Service at 2:30)

1:00- 2:00 Meghan Maddigan- "Tackling Legislative Research Like a Pro”

- Making it modern: How to ensure you are looking at the most current, in-force laws - So many sources, so little time: Where to start and finish when looking at legislation - Working backwards: How to trace specific provisions through time - Who said what: Finding judicial consideration of legislation

2:00- 2:30 Eric Sherbine, "Handling American Research Sources" - Available resources for specific tasks - Free vs. paid sources - What can you reasonably expect to research without U.S. training - Answers to lawyers' commonly asked questions about conducting U.S. research 2:30- 2:45 Break- Prepare for Full Afternoon High Tea Service during next presentation

2:45-3:15 Monika Gehlen , "Presenting Your Work- Writing to Win" - Written advocacy: not just for litigators - The importance of structure and signposts - Persuasive language - The facts, the law, and the boundaries of written advocacy 3:15- 4:15 Group Panel- “Time to Take the Plunge: A Sample Research Issue, Step By Step”

Agenda (cont.)

Research to a

T

We are pleased to be serving Four Seasons' full afternoon tea during our afternoon presentation. Enjoy an assortment of finger sandwiches, scones with Devonshire cream, opera cake, French macarons, lemon tartlets, and

other assorted petit fours, along with a selection of teas or coffee.

Date: November 28, 2013- 9:00 to 4:15 (registration and coffee and pastries starts at 8:30) Format: Live Program with MaterialsFeature: Four Seasons' Full Afternoon High Tea Service at 2:30Location: The Four Seasons Hotel, VancouverPrice: Early Bird (before Oct.31): Regular: $475; Paralegal: $375; Student: $225 Starting Nov.1: Regular: $525; Paralegal: $425; Student: $265

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By Fax: 604.648.8930 By Mail: OnPoint Law Corporation, 178-2498 W.41st Ave, Vancouver, BC V6M2A7

By Phone: 604.879.4280 Email: [email protected]

REGULAR PRICING (Starting Nov.1, 2013)

Regular -------$525 + $26.25 GST = $551.25Student ------ $265 + $13.25 GST = $278.25Paralegal ----- $425 + $21.25 GST = $446.25

EARLY BIRD (Register by October 31, 2013)

Regular -------$475 + $23.75 GST = $498.75Student ------ $225 + $11.25 GST = $236.25Paralegal ----- $375 + $18.75 GST = $393.75

September 2013

604.879.4280 | [email protected]

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The automatic roadside driving prohibition (“ARP”) provisions

of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “Act”), have been the subject of much judicial scrutiny. In Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639 (“Sivia”), the Supreme Court invalidated the provisions as they then were, in part because there was “no way under the impugned law for the driver to challenge the validity of the results” (Sivia, at para. 319). In response, the legislature amended the Act, among other changes adding

a requirement that a peace officer who has served a notice of driving prohibition “promptly forward to the Superintendent:... (d) a report, in the form established by the Superintendent, sworn or solemnly affirmed by the peace officer” (the Act, at s. 215.47).

In this case, the peace officer who served the driving prohibition failed to swear or solemnly affirm the report. The driver applied for review of the prohibition. At the review, the adjudicator noted that the report had not been sworn or solemnly affirmed, but found that it

Murray v. British Columbia (Superintendent of Motor Vehicles)Areas of Law: Motor Vehicle Act; Administrative Law; Driving Prohibitions

~Officers’ reports in support of automatic roadside drivingprohibitions for failing a breathalyzer test must be sworn orsolemnly affirmed~

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OnPoint Legal Research | Take Five


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Murray v. British Columbia (SMV), (cont.)

nonetheless supported the driving prohibition, as the adjudicator was required to consider “any other relevant documents and information forwarded to the Superintendent... including peace officers’ reports that have not been sworn or solemnly affirmed” (the Act, at s. 215.49(1)(d)).

The Court of Appeal first dealt with the standard of review: the issue was one of general law and the adjudicator’s decision was to be reviewed for correctness. Given the context of this case and the history of these provisions of the Act, the Court also stated that “an error made

by an adjudicator concerning what documents must be considered in a review would offend either standard [of correctness or reasonableness]” (at para. 19). The Court took a dim view of the Superintendent’s argument that the swearing or affirmation of the report was only a matter of form, and that the substance, the information contained in the report, should be considered whether or not sworn or affirmed:

“A sworn or affirmed document can be the subject of a perjury charge if it is false (see Criminal Code, s. 131), so that a person swearing or affirming must

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September 2013


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Murray v. British Columbia (SMV), (cont.)

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take great care with respect to the contents of the statement. The making of an oath or affirmation is an important part of judicial and quasi-judicial proceedings, and lawyers or commissioners for taking oats are required to ensure that a person swearing or affirming a document appreciates the solemnity of his or her act. In short, the requirement imposed by ss. 215.47(d) and 215.49(1)(b) is not one of form only.”

(At para. 24; emphasis in original.)

The Court rejected the argument that other provisions of the Act could save the prohibition. The Court referred with approval to Hart v. British Columbia (Superintendent of Motor Vehicles), 2001 BCSC 1143 (“Hart”): “the general provision entitling the adjudicator to rely on other relevant information cannot be relied on to derogate from the specific statutory requirement” (Hart at para. 19, emphasis added by Court of Appeal). Absent specific statutory language permitting the Superintendent to ignore the lack of a mandatory requirement imposed by the Act, “it would be illogical, if not absurd, for the legislation to provide that the

Superintendent could make his or her determination without a sworn or affirmed [report]” (at para. 26).


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0759594 B.C. Ltd. v. 568295 British Columbia Ltd., 2013 BCCA 381Areas of Law: Contracts; Representations and Warranties; Real Property~Warranty given in agreement for sale of land strictlyinterpreted to require disclosure of facts not known tothe Vendor~


The appellant Purchaser in this case had agreed to purchase land from the Vendor for the purpose of a ‘big box store’ development. As part of the agreement of

purchase and sale (the “Agreement”), the Vendor provided the following warranties:

So far as the Vendor is aware, the Vendor has disclosed to the Purchaser all material information pertaining to the Purchased Lands, whether solicited by the Purchaser or not... All material information pertaining to the Purchased Lands is set out in this Agreement or contained in the Property Documents.

Several issues later arose with respect to the suitability of the properties for the intended development, including riparian setback issues, public opposition, and the municipality’s position regarding a required rezoning. There was no evidence that the Vendor was aware of these issues. $2,000,000.00 of the purchase price remained outstanding, which the Purchaser refused to pay on the basis that the Vendor had breached its warranties.




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September 2013


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0759594 B.C. Ltd. v. 568295 British Columbia Ltd., (cont.)

The first of these warranties was limited to matters of which the Vendor was aware, but the second contained no such limitation. In chambers, the judge held that despite the lack of any explicit limitation, a warranty by the Vendor that it had disclosed all material information, even that outside of its knowledge, was so extraordinary that it rendered the provision ambiguous. Based on extrinsic evidence, the chambers judge ruled that the ambiguity should be resolved against such a warranty.

The Court of Appeal took a much stricter stance on the interpretation of the agreement. Regarding the finding of ambiguity, it referred to its previous decision of Water Street Pictures Ltd. v. Forefront Releasing Inc., 2006 BCCA 459 (‘Water Street’):

“An ambiguity can be said to exist only where, on a fair reading of the agreement as a whole, two reasonable interpretations emerge such that it cannot be objectively said what agreement the parties made... Where extrinsic evidence has been admitted, it has been to resolve an ambiguity in what the parties in fact agreed as opposed to overcoming an uncertainty about the legal consequences of an agreement they made.”

(Water Street at para. 26, emphasis of the Court of Appeal.)

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0759594 B.C. Ltd. v. 568295 British Columbia Ltd., (cont.)

Lands [was] set out in [the] Agreement’ was clear. Although it might be considered harsh, the Vendor had explicitly agreed to warrant that it would disclose all material facts, whether known to it or not. The parties had chosen how to distribute risk in the transaction and had done so unambiguously. There was no basis for the Court to resort to extrinsic evidence to overcome the plain wording of the warranty.

The Court also found that public opposition to the development and the position of the municipality’s planning department were material to the agreement. Despite the lack of enforceability against the municipality, the ‘full support’ and ‘approval in principle’ of the development by the planning department would have been significant in the decision of a reasonable purchaser.

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Parties to a private arbitration process refuse to participate at their peril. Even where they challenge the validity of the arbitration agreement itself and

the jurisdiction of the arbitrator, they will face serious difficulty bringing their issues before a Court if they have not argued them before the arbitrator.

In this case, the Appellant (“On Call”) was engaged in an ongoing dispute with the Respondent (“Telus”) regarding billing for wholesale internet services provided by Telus and resold by On Call. In 2008, the parties agreed by letter to resolve “the outstanding issues between them” by arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55 (the “Act”). Telus issued a notice to arbitrate, and an arbitrator was appointed.

Shortly after, On Call took a different position regarding the arbitration. On Call challenged the validity of the arbitration agreement on grounds including economic duress and fundamental breach of the arbitration agreement by Telus. The arbitrator held that he had the jurisdiction to arbitrate the matters at issue pursuant to the 2008 letter ement. On Call was denied leave to appeal the arbitrator’s decisions to the Supreme Court.

On Call then decided not to attend or participate in the arbitration. It filed no substantive defence, submitted no evidence or argument, and did not attend the hearing. The arbitrator issued a final award in favour of Telus.

On Call once again applied for leave to appeal the arbitrator’s decisions, on the ground that the arbitrator committed errors of law, and exceeded his powers under the Act. These applications were denied, and On Call appealed the denial of leave to appeal.

On appeal, the Court referred to the substantial deference required to be granted to decisions of arbitrators. The Act contained a strong privative clause which provided

On Call Internet Services Ltd. v. Telus Communications Company, 2013 BCCA 366Areas of Law: Arbitration; Civil Practice and Procedure~A party who withdrew from arbitration was not permitted to raise issues or evidence on appeal to challenge the decision of arbitrator~







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On Call Internet Services Ltd. v. Telus Com Company, (cont.)

that decisions “must not be questioned, reviewed or restrained… except to the extent provided in this Act” (the Act, at s. 32). The purpose of arbitration was to achieve a speedy final resolution, and strict constraints on appeal were necessary to achieve that purpose: Ed Bully Ventures Ltd. v. Eton-West Construction Inc., 2002 BCSC 826, at paras. 5-6. The Court also noted that it would be “particularly reluctant to grant leave to appeal from an arbitration on the basis of an issue that was not argued before the arbitrator” (VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2012 BCCA 125, at para. 45).

On Call had submitted no evidence and raised no issues at the arbitration hearing. Accordingly, its matters were all new issues and evidence, and it faced serious hurdles to raise them. The Court of Appeal quoted with approval from the chambers judge’s decision that the new evidence ”was available to On Call before the arbitration hearing, and accordingly, it ought to have been tendered at the hearing… it is now too late in the day to attempt to introduce what is essentially fresh evidence” (at para. 53). Similarly, On Call was not permitted to raise the new issues at appeal.


September 2013


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“Subject to a successful application for leave to appeal the Supreme Court

of Canada by On Call, the British Columbia Court of Appeal brought an end to a long and tortured arbitral dispute in its decision in August of 2013 refusing to allow On Call to appeal the final arbitration award.The underlying dispute related to a disagreement over fees in which the parties were more than $1 million apart. An arbitration agreement was signed on February 14, 2008 for resolution of the fee issue. Approximately two months later, On Call changed its view and sought to avoid participating in the arbitration. So began a five-plus year odyssey that involved On Call’s unsuccessful attempt to raise the same issues in court that were alive in the arbitration; On Call’s unsuccessful challenge to the arbitrator’s jurisdiction and unsuccessful attempt to obtain leave to appeal that decision; On Call’s refusal to participate in the final arbitration (which was decided in favour of TELUS) and later unsuccessful attempt to obtain leave to appeal the arbitration; On Call’s fruitless complaints to the Law Society about

the arbitrator and lead counsel for TELUS; applications by On Call to the Canadian Radio-television

Telecommunications Commission on the issues in the arbitration; the bankruptcy of On Call; and a complaint by On Call to the Prime Minister of Canada; among others.The regime for domestic arbitrations in British Columbia, Canada, allows parties to seek leave to appeal the decision of an arbitrator for arbitral error or, with leave of the court, for errors of law. That is considered by the Supreme Court and if leave is granted will be heard by the Supreme Court. There is an automatic right of appeal to the British Columbia Court of Appeal.After refusing to participate in the arbitration, and losing its application to appeal the final award, it filed an appeal to the Court of Appeal. While that was stalled for reasons related to On Call’s bankruptcy, the appeal went ahead in June of 2013.

COUNSEL COMMENTS

Comments provided by David Wotherspoon, Counsel for the Respondent

On Call Internet Services Ltd. v. Telus Com Company

David Wotherspoon




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COUNSEL COMMENTSOn Call’s key position on appeal was that an affidavit relied on by TELUS at the arbitration contained incorrect information and that TELUS knowingly included the incorrect information. In support of its appeal, On Call sought to rely on two additional letters as fresh evidence and filed a 600-page affidavit in support of its fresh evidence application, and then argued the appeal on the basis of that affidavit. Essentially, On Call sought to put forward the case it might have put forward had it participate in the arbitration, in particular in challenging one of the affidavits on which TELUS relied.

TELUS’ overarching position on the appeal was that it was an affront the arbitral regime for a party to refuse to participate in the arbitration, and to then be permitted to raise issues it could have and should have raised if it participated in the arbitration. Allowing this to happen on appeal would deprive TELUS of the ability and right to respond to the issues and evidence advance by On Call, as it was entitled to do, in the arbitration. It said additionally that there were no arbitral errors or errors of law on the part of the arbitrator.

The Court of Appeal sided with TELUS on all counts. It refused to fresh evidence application, dismissed the appeal, and awarded costs to TELUS. In doing so it said that On Call had fundamentally misconstrued the appeal process and agreed with TELUS that On Call had been contemptuous of the arbitration process. “In the result, On Call has created a process antithetical to the private, efficient, economical, and final objects of arbitration proceedings”. This case affirms the weight of a private arbitration agreement. Once that agreement has been made, the parties must put their best foot forward in the arbitration as they will not be able to redo or supplement their case in the courts. If one party ignores the arbitral process they consented to participate in, they do so at their peril.”

A note about Counsel Comments:

The opinions and views expressed in Counsel Comments are the opinions of the contributing authors and do not necessarily reflect the opinions or views of OnPoint.


September 2013


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Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2013 BCCA 371Areas of Law: Labour law; Collective Bargaining; Arbitration; Constitutional Law~ Arbitration processes were within the constitutionally protected scope of collective bargaining. However, nullifying a particular wage increase was not sufficient to infringe the right of free association. ~

The Appellant was the bargaining agent for several trade unions,

whose employees were employed by the federal Treasury Board. The parties’ collective bargaining relationship was set out in the Public Service Labour Relations Act, S.C. 2003, c. 22 (the “PSLRA”). The parties had been engaged in collective bargaining since 2006, and in 2008, the Appellant referred the issues to arbitration as set out in the PSLRA. On January 20, 2009, an arbitration award granted the appellant’s members wage increase beginning in 2006. On March 12, 2009, Canada enacted the Expenditure Restraint Act, S.C. 2009, c. 2 (the “ERA”), which had the effect of nullifying the wage increase granted to the Appellant for 2006.

The Appellant challenged the constitutionally of the ERA as impermissibly interfering with its members’ right to collective bargaining as set out in Health Services and Support-Facilities Subsector Bargaining Association

v. British Columba, 2007 SCC 27 (“Health Services”). At trial, the judge held that because the wage increase was the result of binding arbitration, it was not the result of collective bargaining, and therefore not protected as part of the Appellant’s right to free association. The trial judge went on to conclude that, were he in error on the first issue, the ERA substantially interfered with the process of collective bargaining, in which wages were of central importance.

The Court of Appeal held that awards of arbitration could not be excluded from the constitutionally protected scope of collective bargaining. A pragmatic approach to the area did not permit “hiving the procedure for settlement of collective agreements into discreet, air-tight compartments” (at para. 32). Interference with an awarded settlement had the same practical effect as interference with a negotiated agreement. Furthermore, the role of arbitration in the PSLRA meant that







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Fed Gov DT & LC v. Canada (Attorney General), (cont.)

it was part of “the process set out in the legislation for the settlement of collective agreements by the bargaining agent” (at para. 33). Therefore, interference with the arbitration award was interference with the process of collective bargaining.

However, the Court of Appeal concluded that the ERA’s interference with the collective bargaining process was not substantial – “if it interfere[d] at all” (at para. 36). The Court reviewed Health Services and a following case, Ontario (Attorney General) v. Fraser, 2011 SCC 20 (“Fraser”), and concluded that there, the Supreme Court of Canada had found the impugned legislation had precluded future meaningful collective bargaining to the extent that it was “impossible to meaningfully exercise the right to associate due to substantial interference by [the] law” (Fraser, at para. 47). It was not the particular result of collective bargaining that was protected, rather it was the associational activity itself. Only if the legislation so interfered that the associational activity itself was frustrated, would a substantial interference with the right to association be found. Health Services provided an example of legislation that did so interfere, by broadly negating the terms of collective agreements, and invalidating any provision in such an agreement, past or future, dealing with those subjects.


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September 2013


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Fed Gov DT & LC v. Canada (Attorney General), (cont.)

The scope of the interference in this case was significantly narrower. The ERA cancelled one wage increase, and set five year terms for future wage agreements. These provisions were not sufficient to be considered an impermissible interference with collective bargaining:

“Employment relations have about them an essential, pragmatic, dynamic, business aspect that precludes, in my respectful view, a single, time-limited wage increase from rising to such significance that its loss amounts to a breach of the constitution of Canada.”

(At para. 53.)

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Weldon v. Teck Metals Ltd., 2013 BCCA 358Areas of Law: Pensions; Limitation Periods

~Loss suffered by the plaintiffs due to their being convinced to transfer to a different pension plan was not damage to the plan. Limitation Act extensions for actions in professional negligence operated for non-clients as well as clients~

In 1992, the Appellant Teck offered employees the option of transferring

from a defined-benefit pension plan (“DBP”) to a defined-contribution plan (“DCP”). Teck retained the Appellant Towers Perrin Inc. (”Towers”) as actuarial consultants to advise it on these plans. Some employees chose to transfer to the DCP, and now alleged that their pension benefits had been reduced because of this action. They claimed that Teck provided false and misleading information about the plans, and that Towers’ activities amounted to professional negligence toward them.The Respondents (“Employees”) were

representatives of a class action for employees that had transferred their plans, effective January 1, 1993. The actions were commenced no earlier than 2009, and therefore Teck argued that they were barred by the then Limitation Act, R.S.B.C. 1996, c. 266 (the “Act”).

The Employees argued that their cause of action did not arise until they had suffered a loss by receipt of less money from the plan that they would have received but for the claimed wrongs: “when a negligent misrepresentation exposes a plaintiff to a loss or liability that is contingent, the cause of action does not accrue until the contingency is fulfilled” (at para. 23). The Court of


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Weldon v. Teck Metals Ltd., (cont.)

Appeal did not agree that a “ ‘payment event’ (the contingency, on [the plaintiffs’] theory) [was] of any relevance insofar as the completion of their cause of action [was] concerned”) (at para. 29). Rather, the Court endorsed its previous decision in a related case, Weldon v. Agrium Inc., 2012 BCCA 53 (“Agrium”), which held that the right of action accrued once a plaintiff acted on advice to its detriment; it did not await the actual receipt of a lower pension payment. Therefore, the action accrued in 1993, and unless the Employees could take advantage of an extension provision of the Act, it was barred.

The Limitation Act provided extensions for claims arising out of damage to property and professional negligence, among other matters. In chambers, the judge had concluded that a pension plan amounted to intangible property, which could sustain damage. Accordingly, he allowed that the claim benefitted

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from the extension provisions of the Act. The Court of Appeal characterised the situation differently: it found that both the DBP and the DCP remained as they were prior to January 1, 1993. Nor did either contain inherent deficiencies which could be characterised as damage. Accordingly, there was no item of property which could be said to have been damaged. Rather, the Employees had agreed to transfer to a different plan, and had suffered a pure economic loss. The extension on the limitation period could not apply to this claim:

“If postponement were available for pure economic losses generally, the category of ‘damage to property’ would be available whenever there is a claim for any diminution of contraction, equitable or statutory rights. The statutory scheme created by the Act would be rendered meaningless with the result that the only effective limitation period for any such claims would be the ultimate limitation period”.

(At para. 53.)

Regarding the issue of professional negligence, Towers argued that postponement


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for this type of claim was only available to direct clients of a professional, and not others indirectly injured such as the Employees. The Court held that there was no basis for restricting the Act in this manner: it was “flexible enough to support the interpretation that its postponement provisions may apply equally to plaintiffs who were clients of professional defendants and those to whom a duty arose on a different basis” (at para. 89).




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“The new Limitation Act SBC 2012, c 13, came into force on June 1,

2013, replacing the former Limitation Act RSBC 1996, c 266. The lifespan of the former Act was 39 years, from its enactment in 1974 to its replacement in 2013, but it will continue to rule us from the grave for many years to come.By the transitional provisions of the new Act, the former Act continues to apply in respect of pre-existing claims where the former limitation period had not already expired on June 1, 2013 and the pre-existing claim was ‘discovered’ prior to June 1, 2013. In such cases the former limitation period applies ‘as if the right to bring an action occurred at the time of the discovery of the pre-existing claim’; s. 30(3). The new Act provides detailed rules in ss 8-20 concerning when a claim is ‘discovered’. The former Act therefore continues to be important in at least two ways to the assessment of claims arising out of events prior to June 1, 2013. First, it is important to consider whether the

limitation period under the former Act expired before the new Act came into force. Second, the former Act must be applied with a modification (as to the date of accrual of the cause of action) in respect of pre-existing claims already discovered on June 1, 2013. Weldon v Teck Metals was decided under the former Act and it illustrates the modern evolution of lawyers’ and legislators’ thinking on limitations. As Hinkson JA observed, the former Act derived from a report of the Law Reform Commission of British Columbia that was adopted by the Legislature in its entirety, to the point of enacting legislation in the very terms of a draft bill appended to the Commission’s report. The Law Reform Commission’s 1974 report was cutting edge in its day. Its recommendation was to consolidate

COUNSEL COMMENTS

Comments provided by Geoffrey Gomery, Q.C., Counsel for the Appellant, Teck Metals Ltd.

Geoffrey Gomery, Q.C.

Weldon v. Teck Metals Ltd.


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and rationalise limitations law generally under the aegis of a single statute. It further recommended that statute should make available a mechanism by which some limitation periods would not prevent an action from being brought by a plaintiff who could not reasonably have been expected to sue at an earlier time. This was radical change. To this point, limitation periods were scattered through the statute books. There were whole categories of claims that were not subject to a limitation period. Where limitation periods were imposed, they were generally absolute. Unfortunately, the project of reform was not a complete success. The complicated scheme of the former Act, and its convoluted drafting, generated a labyrinthine jurisprudence. Competing interpretations of the test of postponement offered by the Court of Appeal eventually became so confusing that the Supreme Court of Canada had to step in to settle the matter (in respect of a uniquely British Columbian statute) in Novak v Bond [1999] 1 SCR 808. The limitations jurisprudence in other provinces eventually took a different path, developing a concept of common law discoverability foreclosed by our

statutory scheme. With the new Act, rather than continuing to blaze its own trail, British Columbia has adopted a model already test-driven in Alberta and Ontario. The essential elements are an even greater commitment to universality, with a discoverability defence made available in every case and a 2 year limitation period of great generality. Weldon illustrates, in particular, the feature that discoverability (postponement in the language of the former Act) is not universal under the former Act. The chambers judge viewed this as an anomaly, and thought that the category of postponable causes of action involving ‘damage to property’ should be interpreted expansively. Hinkson JA held that this misinterpreted the language and failed to have regard to the purposes and scheme of the Act. This exemplifies the truism that statutory language must be understood in the context in which it appears.The practical effect of this judgment is to significantly constrain the causes of action the plaintiffs may advance in this class action. As against their employer or former employer, they are limited to the postponable causes of

COUNSEL COMMENTS




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COUNSEL COMMENTSaction of deceit and breach of trust, and they also have a professional negligence claim against the actuary retained by the employer in respect of which there is a claim that the employer was vicariously liable. If one of those causes of action can be made out (an issue not yet decided in the litigation), members of the plaintiff class would then have to satisfy the test of postponement settled by Novak v Bond.”

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OnPoint BC Take Five September 2013

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Transcript of OnPoint BC Take Five September 2013