Wanda Simek wins real estate commission hearing

On April 22, 2021, the British Columbia Supreme Court released their decision in Well Sing Property Development Ltd. v. MacDonald Platinum Marketing Ltd. (2021 BCSC 755). AMLC’s Wanda Simek represented MacDonald Platinum Marketing, a real estate brokerage firm specializing in the marketing of pre-construction residential developments, in a contractual dispute with the developer, Well Sing, over real estate commissions. 

The contract in question provided that Well Sing would pay Platinum commissions in exchange for marketing and sales services. Platinum provided these services, and successfully sold out 100% of the development in one day, at the highest price point per square foot ever achieved in Richmond for similar projects. 50% of the commissions were paid out by Well Sing; however, Well Sing advised that it would not authorize the other 50% of commissions pending the determination of a separate negligence claim against Platinum. This claim alleged that Platinum had undervalued the units in the development and sold them at a value lower than they were worth. 

At this hearing, Wanda successfully argued that Platinum had fulfilled its contractual obligations, and was contractually entitled to the commissions that had been earned upon the successful closing of each contract of purchase and sale. The court agreed that the developer was not entitled to tie up the commissions pending the determination of its negligence claim against Platinum, and had no equitable grounds to withhold payment as prejudgment security. The court ordered that the commissions be paid out to Platinum and also awarded Platinum its costs of the application. 

Congratulations Wanda!

Liam Babbitt and Suzy Flader win 2-day small claims trial

On March 31 and April 1, 2021, Liam Babbitt and Suzy Flader appeared in the British Columbia Provincial Court representing the defendant, a realtor, in Hoang v Luo. The claimant sought a portion of their realtor’s commission on the basis of an alleged oral agreement.

At the conclusion of the claimant’s case, Liam and Suzy brought an application to dismiss the claim on the basis of section 4 of the Real Estate Services Act, which bars unlicensed or non-exempt people under the Act from receiving remuneration in relation to providing real estate services. The court agreed that the alleged oral agreement was caught by section 4 of the Real Estate Services Act and dismissed the claim. The court also found that on a balance of probabilities the claimant failed to prove that an oral agreement was reached. We congratulate Liam and Suzy on their victory!

Wes McMillan and Kaitlyn Meyer win shareholders’ and directors’ dispute

Wes and Kaitlyn acted for a businessman, who, along with a disbarred lawyer, established and grew a marina in Richmond, BC, beginning in 1965. The parties’ relationship deteriorated until eventually, they agreed it should end. They each filed an oppression claim under the Business Corporations Act (“BCA”). Before the matter was heard, the opposing party passed away. In a 9-day hearing, the court examined a multitude of issues, including whether the parties were in a partnership, whether they each engaged in oppressive conduct under the BCA and ultimately, what remedy would be just and equitable in the circumstances.  

The court ruled in favour of AMLC’s client and dismissed the opposing party’s petition. It concluded that the parties’ relationship was that of shareholders under the BCA and not a partnership. Further, the court found that the opposing party’s conduct was oppressive and that, in the circumstances, his estate should purchase the client’s shares in the business. After examining competing expert reports, the court valued the client’s shares at $1.45 million.

For more information on this case, visit Short v Ewachniuk, 2021 BCSC 994. For more information on Allen / McMillan’s shareholders’ and directors’ disputes practice, please contact Wes at wes@amlc.ca or Kaitlyn at kaitlyn@amlc.ca.  

Allen / McMillan brings appeal to Supreme Court of Canada

On March 25, 2021, Greg Allen, Liam Babbitt and Suzy Flader of Allen / McMillan represented the City of Nelson at the Supreme Court of Canada in Nelson (City) v Marchi, a case which has the potential to redefine governmental liability in Canada. In his submissions, Greg argued that the conduct and decisions of the City were government policy, and are therefore immune from tort liability. Greg also argued that the City had met the standard of care in the circumstances, and the trial judge’s findings were deserving of defence.

At the conclusion of the appeal, the Court reserved its decision. The decision will be released later this year.

Allen / McMillan Granted Leave to Appeal to the Supreme Court of Canada

On August 20th, 2020, the Supreme Court of Canada granted the City of Nelson’s application for leave to appeal in the case of City of Nelson v. Taryn Joy Marchi. The application for leave to appeal was prepared by AMLC’s Greg Allen and Liam Babbitt.

Obtaining leave to appeal to the Supreme Court of Canada is a difficult process and only 10-15% of applications for leave to appeal are successful. AMLC’s application in this case was just the 26th successful leave application of 2020.

The case involves relatively straightforward, albeit uniquely Canadian, facts. Ms. Marchi had parked her car along a snowbank in the City of Nelson and had attempted to traverse over the snowbank to get to the sidewalk on the other side. While doing so, her foot fell through the snowbank, severely injuring her leg. Ms. Marchi commenced the underlying action against the City of Nelson, alleging the City had been negligent in leaving snowbanks along the road with no space for pedestrians to cross.

The City of Nelson was successful in defending the claim at trial, but the Court of Appeal overturned the trial decision and ordered that a new trial take place. At the Supreme Court of Canada, AMLC will argue that the City’s snow clearance operations prior to Ms. Marchi’s injury were carried out pursuant to a bona fide policy, and therefore the City should be immune from liability in negligence.

This appeal will mark AMLC’s fourth appearance at the Supreme Court of Canada since the firm opened in June 2018.

Supreme Court of Canada issues reasons for judgment in Heller v. Uber

On June 26, 2020, the Supreme Court of Canada issued reasons for judgment in Heller v. Uber, an important case about the ability of employers in the “gig economy” to compel their employees to pursue their rights by way of expensive arbitration proceedings.  More particularly, the case concerned the doctrine of unconscionability which, in simple terms, allows a court to refuse to enforce a contract, or provisions of a contract, that are grossly unfair.

Wes McMillan and Greg Allen represented the Community Legal Assistance Society as an intervenor in the case and argued that the doctrine of unconscionability should be broadly understood and focus on the impact of the contract on the weaker party, rather than on whether the stronger party has intentionally taken advantage of the weaker party.

The majority of the Court held that Uber’s contract – which required Uber drivers to bring any complaints by way of arbitration pursuant to the law of The Netherlands, and incur fees of $14,500 just to commence the arbitration – unconscionable.

Of more general importance, the majority provided needed clarity as to how and when the doctrine of unconscionability is to be applied.  As the doctrine of unconscionability can apply to any form of contract, the Court’s decision will be of enduring interest.

A contract will be deemed unconscionable if there is an inequality of bargaining power and an improvident bargain.  The majority rejected the application of a rigid test in favour of a highly contextual analysis to be applied on a case-by-case basis.

Importantly, the majority of the Court recognized that the doctrine of freedom of contract is not sacrosanct and that where the principles underlying it are not present, it will be of less force.  This has particular application to standard form contracts of adhesion which are a practical necessity for participation in modern society. 

Allen / McMillan is pleased to have been able to represent the Community Legal Assistance Society in this important case that not only affects the rights and interests of Uber drivers, but of all Canadians.