PROJECT 1.

PROJECT 1.

PART A.

1. (a)

I would sue in the Small Claims Court, which usually settles matters of $35000 or less. Before proceeding with the claim, I would have to establish that the cause of action arises within the court’s territorial jurisdiction and that the defendant carries out his business there. Upon completion of the hearing, the trial judge renders his decision, which, if found unsatisfactory, a party may appeal to the British Columbia Supreme Court.

An appeal to the British Columbia Supreme Court requires proof that the trial judge erred either factually or legally. Successful proof would lead to the ordering of a new trial. This means that the judge will have to listen to all evidence tabled and the parties’ respective arguments, then make his own decision. This decision is also subject to appeal in the British Columbia Court of Appeal, presided by three judges. The appellate court’s anticipated hurdle is that the unsatisfied party must convince two or three of the panel of judges of his version of the event. Failure to do so will lead to denial of the appeal, and the upholding of the decision of the lower court. An unsatisfactory decision of the appellate court is appealable in the Supreme Court of Canada in Ottawa.

The Supreme Court of Canada only considers appeals on legal issues, with no hearing of evidence. The expected hurdle is that the appeal must constitute legal questions, and the court may choose to decline to hear the appeal. This court’s decision is usually binding and final, with no recourse as it is the highest court of the land.

(b)

To enforce the court’s judgment that orders my neighbor to pay me damages, but he defaults, the first step would be to examine his assets and liabilities. This constitutes several searches of the title of assets such as cars. If the searches’ results are unsatisfactory, I may seek the leave of the court to compel the neighbor to reveal his assets and liabilities under oath. Depending on the court level, where I obtained the judgment, I may also obtain an order that directs the judgment debtor to make installment payments.

I may also request a writ of execution, where the local sheriff seizes and sells the assets of my neighbor, and the proceeds applied to the amount owing. I may also obtain a garnishing order if a third party owes the judgment debtor money, for instance, employee wages and bank accounts. Another recourse would involve the court ordering for the judicial sale of the neighbor estate.

2. (a)

Section 43 of RESA provides a variety of sanctions against licensees for professional misconduct and conduct unbecoming of a licensee. The undertaking to sell my condominium instead of engaging a brokerage constitutes a violation of Section 7 of the act. At the same time, non-disclosure of personal interest and misleading the purchaser as per material facts contravene Section 15 of RMDA.  As per Section 35, these actions constitute unprofessional and improper conduct, which I may be sanctioned for as availed in section 43. For instance, I could be reprimanded through a formal warning, suspension of my licensee license until a period committee deems fit, or even my license canceled altogether. Additionally, the committee may issue restrictions on my license and prohibit the application for a permit, hence significantly impede my career. Monetary sanctions include the payment of enforcement expenses and discipline penalties. For instance, under REDMA, non-disclosure of pertinent facts attracts fines of up to 1.5 million dollars upon conviction. The monies collected from usually utilized for various real estate related undertakings such as civic education.

b.

The best claim for my neighbor under tort law is the tort of nuisance. This is because claims under the tort relate to the civil wrong committed, a fact that she could illustrate in that my screen and vines not only occasion the death of her plants due to the shade but also taint her stones. The claim under nuisance would particularly be reinforced by the legal principle of Cuius est solum, eius est usque ad coelum et ad inferos, which guarantees that a landowner’s rights extend up to the heavens, and down to the depths of the earth. However, the legal principle only effects as per the provisions of the Aviation Act and the Land Title Act.

c.

Basically, a joint tenancy co-ownership constitutes the unity of title, unity of time, unity of interest, and unity of possession. This is unlike a tenancy in common, where each co-owner holds a separate ownership share in the property. The existence of a joint tenancy means that the law requires the consent and approval of my daughter to sell the condominium. Obtaining the consent would be particularly problematic if my daughter and I did not get along, hence impede me from making any sales. Notably, this consent is also required in other arrangements regarding the property. To avoid these legal issues, I could petition the court for a partition order under the Partition of Property Act, or severance by an operation of law.

d.

The criteria by the court would include an assessment of the conduct of the seller, to infer whether the seller intimated that the property belongs to buyer in its entirety. Additionally, the court would assess the wording of the contract of sale. Notably, courts often construe unmentioned facts and terms against the party that would benefit, in this case, the seller. If this was specified in the contract of sale, the court would obviously look at its wording and intent, and the performance of the mentioned obligations to decide on the owner of the screen.

PART B.

Question 1.

(a)

1. Real property
2. Fee simple

• LOT 18 SOUTH EAST 3 SECTION 35 CAMPBELL RIVER

DISTRICT PLAN 10212

1. City of Campbell River
2. AUDREY HUGHES, a translator, and Pat Hughes, an Entertainer.
3. 10^th April 2007.

• $ 375500

1. Easement.

Claim of builder’s lien.

1. None.

(b)

Easements affect the title of the property in that grant the holder certain rights of use over the property, hence a burden. The easement holder will be able to use a part of the property without the violation of the grantors property rights, such as through trespass. Claim of builders lien, on the other hand, allows the builder to keep possession of the strata property until a debt owed by that person is discharged. Lien affects title in that in it limits what the owner can do with a property, for instance, an unauthorized sale.

(c)

The Torrens system is based on the principles of indefeasibility, effect of registration, abolition of notice and assurance. The indefeasibility principle dictates that the registration as owner of the fee simple estate is conclusive proof of his entitlement, and cannot be defeated or rendered void. person registered on the certificate of title as the owner of the fee simple estate of the land. As such, an innocent purchases can acquire good title solely on the provisions of the certificate, and cannot be recovered by the purported owner. The supremacy of indefeasibility exacerbates in Gill v Bucholtz 2009 Can LII 137 BCCA. However, indefeasibility may be defeated through instances like the assertion of discovered minerals by government, or acquisition by forgery.

The principle of registration denotes that the title does not until the transfer deed is registered as per section 21 of the Land title act. Unlike the transfer by deed execution in common law, an unregistered transfer is usually inopertative. Notably, the interests in the unregistered transfer are enforceable against the grantor, but not to a third party.

The principle of abolition of notice, as established under section 29 of the Land Title Act, negates the presumption of the knowledge of any undiscovered interests in the estate by the persons during transactions. This principles therefore removes the prejudice a purchaser encounters in the common law system of title by execution, as he only needs to be concerned with those estates and interests in the certificate.

The Assurance principle seeks to compensate persons who lose their property rights in common law due to the enactment and execution of the legislation. This principle, and the assurance fund, adds to the fairness of the system in that it not only compensates the victims monetarily, but also increases its integrity, thus higher faith and independence. However, compensation is subject to the loss did not arise out of the negligence of the victim, and the property cannot be recovered by a court action.

I think that the main objectives of the Torrens system are met with the British system, as there’s not only a provision of certainty, but also parties do not have to keep reexamining old or previous documents.

(d)

1. The transfer should be set up as a joint tenancy co ownership form in order to meet the owner’s demands. Notably, a joint tenancy provides for unity in title, time, possession and interest, thus ensuring any transactions on the property would require the consent of both parties. This would be provided for as follows.

The property Title Number BX211991, parcel 012-058-223, LOT 18 SOUTH EAST 3 SECTION 35 CAMPBELL RIVER DISTRICT PLAN 10212 is to co-owned by Betty and her sibling as joint tenants.

1. Betty is to be responsible for the bills and other expenses incurred in her stay at the property. However, these obligations are to be shared with her half sibling, as they both have equal interest in the property.

iii. No, Betty cannot commit a voluntary, permissive, authoritative or equitable waste as she is constrained by the terms of the will of the parents, hence held liable. The sanctions for being responsible for waste include issuance of damages by the court, an order to restore the property to the original condition, and an acceleration of the passage of title to the land.

Question 3.

Case Brief 1.

Supreme Court of British Columbia

Churcher v. Richards, 2014 BCSC 2093.

Petitioners.      Patricia Ann Churcher, and

Feror Richard Mittelberg.

Respondent.    Gary Richards.

Judge.              Mr. Justice Greyell.

Facts

The petitioners reside on property in Port Coquiltam, which is adjacent to that of the respondent. The petitioners allege that the respondent engages in the emission of a noxious smoke from his fireplace. They allege that this smoke constitutes a nuisance, as it permeates through their houses and makes them stink of smoke. Additionally, they cannot enjoy their property, or do any gardening work, because of the strength of the smoke. The petitioners note that on August, they hired persons to work on their garden and roof, but the employees always left early due to the smoke which reduced their visibility, and made it difficult to breathe.

A witness of the petitioner, who has resided in the property for close to 23 years, testified that the smoke has been going on for several years, but has only became worse and worse. This is occasioned by the respondent using materials that billow out smoke, such as painted wood and plywood and lumber. Another witness testified that the noxious smoke has made him allergic, and has to use inhalers. Another of the plaintiff witness testified that they cannot even open the windows, or enjoy their gardening. Notably, the petitioners have engaged with the respondent, who claims that he uses the smoke so as to bug the neighbors. They have also tried complaining to the Metro Vancouver’s officer at the Environmental Regulation and Enforcement Division, who note there is not much they can do. Due to this continuous behavior of the respondent, the plaintiff sought for orders by this court to compel the respondent to cease and desist burning materials that from his residential fireplace that cause an excessive and unreasonable amount of noxious smoke.

Issues.

Whether the respondents conduct of burning materials from his residential fireplace that cause an excessive and unreasonable amount of noxious smoke amounts to a nuisance.

Rules

Greater Vancouver Regional District Air Quality Management Bylaw Number 1082. The following sections are include: “

1. Section 10: Notwithstanding any other provision in this Bylaw no person may discharge or allow or cause the discharge of any air contaminant so as to cause pollution.
2. Section 3(2) defines “air contaminant” as meaning: any substance that is emitted into the air and that (a) injures or is capable of injuring the health or safety of a person …

(c) Interferes or is capable of interfering with visibility …

(e) Causes or is capable of causing material physical discomfort to a person …”

Holding

A cease and desist order preventing the respondent from using his wood burning fireplace at all.

Rationale.

The court, in its decision, considered the authority and criteria in Moore v. Smith Construction

Company, 2013 ONSC 5260, where the court at paragraph twelve outlined the criteria of assessment of a nuisance in the legal sense, which depends on four factors: “

1. The character of the neighborhood
2. Severity of interference.
3. Utility of the defendants conduct
4. Whether the plaintiff displayed abnormal sensitivity.”

The judge noted that the character of the neighborhood was a residential, and not a mixed one or residential. As such, they are entitled to the protection from nuisances depending on the character of the neighborhood. Therefore, the judge noted that they should be able to enjoy the use of their properties without being unlawfully annoyed, prejudiced, or disturbed.

In the severity of the nuisance, the judge noted that there was a substantial interference, as denoted by the evidence of pictures and soot. Additionally, the deponents noted that they found it difficult to breathe, and their place stank of smoke, hence need to wash their home more frequently.

The judge noted that the nuisance had not utility. The respondent did not only lack to respond to the petition, but had noted that he used the smoke to annoy the neighbors. The court further noted that the defendant had options, as he could choose to either use natural gas to warm his place. The court also noticed that the plaintiff had been asked even by the police to cease from desisting, but had continued to disregard. This relates in the fourth point of abnormal sensitivity, in that the petitioners are targeted by the respondent, hence not an abnormal sensitivity.

Case Brief 2.

Supreme Court of British Columbia.

Susan Heyes Inc. (c.o.b. Hazel & Co.) v.Vancouver (City), [2009] B.C.J. No. 1046

Relief sought

Damages for nuisance.

Facts

There was construction of a Canada Line in the vicinity of the business of Hazel & Co. built by the defendants. The defendants had constructed a cut and cover construction Canada line, instead of the alleged bored tunnel construction. The Crown, the City of Vancouver, South Coast British, Columbia Transportation Authority (“TransLink”), Canada Line Rapid Transit (“CLRT”) and InTransit BC were all involved in the funding, planning, design, construction, operation and maintenance of the Canada Line.

The plaintiff alleges that he was assured that the cut and cover construction would last no more than three months. Instead, the construction affected from three years, from the fall of 2005 to the August of 2008. The vicinity of 16^th Avenue and Cambie. The plaintiff alleges that the construction of the cut and cover resulted to the actionable nuisance, and caused economic loss.

Issues

Whether the conduct of the defendants of the construction of cut and cover occasioning economic loss constituted an actionable nuisance.

Holding.

The court found TransLink, CLRT and InTransit BC liable in nuisance, and awarded Hazel & Co. damages of $600,000 for the business loss occasioned by that nuisance.

Rationale.

The court relied on the precedent definition of nuisance in Sutherland et al v. Canada et al, “Nuisance may be either a private nuisance or a public nuisance. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at p. 523, defines the former as “an unreasonable interference with the use and enjoyment of land by its occupier” and the latter as “an unreasonable interference with … the use and enjoyment of a public right to use and enjoy public rights of way.”

Guided by this definition, the court noted that the cut and cover construction of the Canada Link substantially interfered with Hazel and Co Use and enjoyment of its premises, as the extent was sufficiently unreasonable. The access to the plaintiff was severely curtailed by the construction, as the Parking on Cambie Street was eliminated and the pedestrian crossing restrained. This is evidenced in that the customers were required to find a way to travel to the vicinity of the court, find a place to park some distance away, then walk to the store on foot, in an intense construction area. As a result, the company dropped by a profit of 48%, had to reduce the staff,

The nature, cost and duration of the impact on Hazel and Co. outweighed the social or public utility related with the creation of the line, to a degree that warranted compensation. This was a private nuisance in that the companies did not enjoy the immunity of regulating the use of the streets, as per Vancouver City. The company also failed to use an alternative method that would not have created a nuisance. The sole source of the nuisance was the method chosen.

Case Brief 3.

Supreme Court of British Columbia.

Yas v. Pope, 2018 BCSC 282.

Petitioners.      Arlene Marion Yas,

Jacqueline Yas and

Ninele Jackson.

Respondent.   1^st         Bhavananda Pope and Derek Pope.

2^nd        Strata Plan VIS30.

3^rd        Civil Resolution Tribunal.

Judge.              Honorable Mr. Justice Baird.

Introduction

The petitioners seek an order pursuant to s. 12.3 of the Civil Resolution Tribunal Act 2012, c. 25 preventing the civil Resolution Tribunal from resolving two competing claims.(the “Act”), even though they fall under its jurisdiction. The petitioners argue that it is not in the interests of justice and fairness for the CRT to resolve them.

Facts

The petitioners are the joint owners of unit 602-670 Dallas Road, a condominium unit in a 9-storey building in Victoria. The first respondents are the owners of unit 502-670 Dallas Road, the condominium directly below the one owned by the petitioners. The second respondents are the property owners as represented by their strata council, Strata Plan VIS30 (“the Strata”). The third respondent is the CRT itself.

The Popes allege that over the last 5 years, have intermittently created unreasonable amounts of noise from within unit 602 in breach of the Strata’s bylaws forbidding such thing. The noise is arguably exacerbated by the change of the flooring from carpeted to hard wood, which made it more permeable for sound. There have been penalties of up to 650 dollars, which have been not honored as the petitioner claims that the process did not follow due process. They claim that the Popes have waged a campaign to cause them needless expense, stress and happiness.

Issues.

Whether the Civil Resolution Tribunal should be precluded from resolving two competing nuisance claims in the interests of justice and fairness.

Holding.

The petition was dismissed as the court found that CRT was within its jurisdictions, and the online mode adopted was fair and just.

Rationale.

The court held that the even though the process adopted by CRT in dispute resolution was not similar to the traditional conduct of trial by the courts, the mode did not prejudice anyone, and was fair and just. Additionally, the grotesque amounts of damages demanded by the petitioners did not negate the jurisdiction of CRT, as they were small claims with inflated amounts. The question of justice and fairness did not negate the jurisdiction of the tribunal, as they were not legal issues on human rights. Instead, they were allegations and mere inconveniences.

PROJECT 2

PART A

Question 1.

1. The type of agency created is a general agency, where the agent is authorized by the principal to undertake an action with regard to a particular business without restrictions. The agent basically acts on behalf of the principal, hence any decision undertaken by Bob is legally binding to his elderly mother. The limitations to the power of attorney in Bobs case is that he must ensure he acts within the terms agreed on with his elderly mother, and may be held liable for fraud or negligence. The acting as per the terms means that Bob cannot break any term agreed upon, as doing so would constitute a violation. Bobs actions relating to fraud or negligence are limiting in that any recourse in law would be against him, not his elderly mother.
2. No, this is not true. The contract is actually binding to Cushion Comfort as it was entered into by one of its salesman, a fact he proved by giving Bob his business card and the drawing of a contract. Despite Marks actions of misrepresenting that he can go into contracts of such sums, such a contract would be legally construed against the principal, as he is responsible for agent’s actions. This is further execebated in that Bob had no means of discerning the agreements between Mark and the Cushion Comfort, as he was not privy to the contract. Bob can therefore seek to enforce the remedy of specific performance against Cushion Mark, or negotiate the terms as he had not yet paid.
3. Possible claims against Wunder include instituting a civil action in a court of law, and filing a complaint to the Institute of Chartered Accountants in Ontario. The basis would be a tort of negligence, as his occasioned the petitioner a considerable amount of damage. Such a claim would be in the Small Claims Court, which deals with claims under $35000 dollars. The complaint to the governing body would be for professional misconduct, but their conviction does not necessarily mean that one will be compensated.
4. Bob can have the sale set aside, through an action in court. Such an action would rely on that Mr Walker obtained the property through flood, and did not even reveal his stature as a real estate licensee under section 15 of the REDMA. Additionally, his actions constituted professional misconduct as per section 7 of RESA, and there exists sanctions available against him as per section 43 of RESA. For the sale to be set aside, Bob can indicate that the sale was out obtained by fraud, thus limiting its indefeasibility on Mr. Walker.
5. Requirements include

The Name of the tenants.

Limits on occupancy.

The term of the tenancy.

Rent.

Deposits and fees.

Repairs and maintenance.

Restrictions on illegal activities.

The difference between residential and commercial tenancy is that the former deals with the leasing of property to individuals for day to day living, while the latter deals with the leasing of property for business activities. Notably, the law presumes that a residential tenancy, the parties are of an unequal footing, hence there exists more detailed law for the protection of the tenant.

The reasons that Bob could cite in evicting the tenant include breach of the rental agreement, damage of property, defaulting on rent payments and occasioning a nuisance to the neighbors. Defaulting on rent payments is usually the most common, and the most formidable ground for eviction. Being a nuisance to the neighbors, on the other hand, include actions that occasion disturbances, and deter the neighbors from enjoying their property rights unfairly. A breach of the rental agreement may include the conduct of actions prohibited by the landlord such as exceeding the occupancy limit.

Question 2.

1. The assumption of a mortgage may occur when the person currently in the house has a better rate than what is available in the open market. The assumption of the mortgage would involve the conveyance of the terms and balance of the existing mortgage to the purchaser of a financed property, as long as the party assuming satisfies the threshold and relevant guidelines. Notably, I will still bear the liability of the mortgage as I am still the original party to the contract, and also until the lender approves the release request discharging me from all the liabilities from the loan.
2. Yes, novation would be a better idea as it not only allows for both the assumption and assignment of the mortgage to another person. Novation occurs when an original party in the mortgage agreement is substituted with another party, who then assumes the loan obligation. After novation, I would have no liabilities, unless there exists other obligations not covered by the novated contract.

PART B

Question 1.

Case Brief 1.

Reference: Sanction Agreement

Facts

The member was the property manager for a condominium association on a contractual basis. This position granted him access to condominium bank accounts and a debit card in the name of the condominium association.

Unprofessional Conduct.

The member admitted that

1. He had withdrawn money on various occasions from the bank account of the condominium association for personal benefit, and sometimes exceeded the amount he was supposed to receive in property management fees.
2. He had prepared monthly financial statements for the board of the directors of the condominium association, which did not reflect the current financial position and were not availed at a timely manner
3. Failing to return condominium records in a timely manner.

Sanctions

The member was fined $5000 to be paid within 18months of signing the sanction agreement and competency related courses.

Case Brief 2.

Reference: Sanction Agreement with Mr. Dale Sutherland

Facts

The member was an employee as the controller of a Calgary based company, tasked with the responsibility of the computerized system that provided accounting information.

The information provided to the employer was revealed to be deficient in several fields, coupled with a discrepancy over several payments made to the benefit of Mr. Sutherland.

Unprofessional conduct.

The member admitted under Article IP 3 of the CMA Alberta Code of Ethics of failing to place the interests of the employer before his own, thus failing to ensure that the accounting controls in place were properly utilized.

Sanctions.

1. Immediate resignation of Mr. Sutherlands membership in CMA Alberta
2. Baring to not apply for re admission as a CMA

• Payment of costs in the amount of $2,921.12.

Publication: Resignation of Mr. Sutherland to be reported to the general membership of CMA Alberta.

            Case Brief 3

Reference: Sanction Agreement with Mr. Ken Mercer.

Facts:

The member was in public practice until he informed CMA Alberta of his retirement from public practice.

However, it came to the CMA Alberta’s attention that the member had completed at least Two Review Engagements in 2008. During the hearing, he admitted to completing a further number of Compilation Agreements without proper registration and practicing without the proper public liability insurance.

Unprofessional Conduct

Mr. Mercer admitted to unprofessional conduct as per Articles IP-1, IP-2, VIIIP-1 and VIIIP-2 of the CMA Alberta Code of Ethics.

Sanctions

1. Immediate resignation of the membership in CMA Alberta
2. Barred from not seeking readmission as a CMA

• A fine of $1000.

78. Payment of the costs of the Sanction Agreement Hearing in the amount of $2,078.76.

Publication: The resignation of Mr. Mercer to be reported to the general membership of CMA Alberta and to the public

1. The similarities of the persons include that they all are practicing accountants, who belong to the Charted Professional Accountants of Alberta. The cases were adjudicated under the Regulated Accounting Profession Act, which previously governed the legacy accounting designations in Alberta. The Current legacy CMA Governing Document is CMA Alberta Code of Ethics & Rules and Guidelines of Professional Conduct.

The offences committed were variant, even though they all constituted unprofessional conduct. There exists a violation of public trust, the trust of their employers, and being negligent in their undertakings.

The sanctions are similar in that they do not $3000 dollars. Additionally, the offending members were also barred from reapplying admission into CMA, and coupled with a publication of their resignation circulated to the public.

C.

The principle of vicarious liability seeks to hold the employer accountable for the actions of his employees. Such actions however must arise and be within the conduct of business by the employee for his employer. For instance, the employer may be held liable for injuries occasioned to a third party by his employee who is in the business of transporting goods from him. The driver in this case would have to highlight that he was using the authorized routes, did not exceed the authorized speed limit, and was solely engaged in transporting goods from the employer.

In the cases briefed above, vicarious liability could arise in case the records of the employee occasioned a difficulty to a third party. For instance, misleading account records relied on by the shareholders may lead to a holding of vicarious liability, as per.

Question 2.

1. McCormack Property Services Ltd.
2. Wilsons Tiling Services Ltd.

• DESCRIPTION OF PREMISES RENTED

1. 18^th July 2018
2. Five years
3. The lease can be renewed only through express declaration of the intention to continue leasing upon the expiry of the current lease.

• The lease requires a 2 months’ notice of intention for renewal before the expiry of the current lease
• Yes, the lease can be registered, but only upon consultation with the landlord.

1. $4000 a month RENT PER MONTH
2. Payments set out include those for utilities such as water and electricity, and waste management
3. The tenant is responsible for the repairs occasioned by his conduct, while the landlord is responsible for any he wishes on the property.

• A special covenant in the lease is that the tenant is not supposed to sublet the premises.
• Joint tenancy. TYPE OF TENANCY
• GROSS AND NET LEASE..DIFFERENCE

12000. Yes. There exists a 3 month deposit of $12000. The amount returning to the lessee will be dependent on the costs of repairs and improvements needed in the premises when the lease expires and there is no renewal.

• No, the lease may neither be assigned nor sublet. Subletting involves the lessee renting a portion of his premises, while assigning refers to the transfer of obligations and tenancy period of the lease to a third party.
• The obligations of the landlord include the provision of security for the premises, ensuring the premises are habitable and sound for the conduct of business by tenants, addressing applicable tenant’s complaints, and general maintenance of the premises.
• The obligations of the tenant include the payment of rent, and ensuring that his activities do not occasion damage to the rented premises.
• This lease may be terminated though eviction by tenant due to a variety of reasons such as non-payment of rent, and damage to the premises. The lease may also be terminated on the request of the tenant, subject to the provision of sufficient notice and the discharge of any applicable remaining obligations.

1. INTERESSE TERMINI

• Remedies set out for the breach of the lease against the tenant include the forfeiture of the security deposit and seizure of properties until any money owed is discharged. The parties may also pursue a cause of action in law where appropriate.