John Trueman wins privacy victory at BC Court of Appeal

The BC Court of Appeal struck down a section of BC’s child protection law that gives social workers unfettered access to personal health information held by public bodies.

In a 3-0 decision, the Court found that section 96(1) of the Child, Family, and Community Service Act was an unconstitutional infringement of section 8 of the Canadian Charter of Rights and Freedoms, which guarantees that “everyone has the right to be secure against unreasonable search or seizure.”

Along with Paul LeBlanc and Susan E. Ross, Allen/McMillan Litigation Counsel associate, John Trueman, represented T.L., a mother of three with a history of trauma and mental health struggles.  When T.L. sought to regain custody of her children, social workers issued demands for her medical records and those of her family to the local hospital and a family services agency from which she had been receiving services.  The requested records dated back years before she had children.  T.L. challenged the constitutionality of the law which, she said, made her less comfortable confiding in doctors and others who sought to help her.

Writing for a unanimous division, Justice DeWitt-Van Oosten held that British Columbians have a high expectation of privacy in their medical records, and that s. 96(1) is not minimally intrusive because it allows the collection of a broad range of medical records without any meaningful oversight.  As such, she declared that the law is “of no force or effect,” but suspended the declaration of invalidity for 12 months to allow the Legislature to fashion a new law.

AMLC’s John Trueman maintains a broad litigation practice with a focus on appellate and public law litigation.  He has a keen interest in privacy issues.  As the former Vice-Chair of the Canadian Bar Association’s Constitutional and Civil Liberties Section, he collaborates with noteworthy counsel — in this case, family lawyer, Paul LeBlanc and privacy expert, Susan E. Ross — to help take on challenging issues.  This was his first time delivering oral argument in the Court of Appeal.

For more information on Allen/McMillan’s appellate advocacy and public law litigation practices, please contact John at john@amlc.ca. For more information on this case, visit 2023 BCCA 167 and for additional press coverage visit here and here.

Greg Allen and Kaitlyn Meyer Successfully Defend Jurisdiction Application

Greg and Kaitlyn successfully defended an application by two of several defendants to have the claims against them dismissed or stayed on jurisdictional grounds.

The underlying action involves claims of misrepresentation, fraud and breach of contract arising from the plaintiffs’ investment in an energy drink company and a related farming business. The two defendants argued the claims surrounding the farming business were closely tied to Alberta and that a forum selection clause in an agreement between some of the parties favoured the jurisdiction of the Alberta courts. The BC Supreme Court disagreed, finding that the forum selection clause did not confer exclusive jurisdiction on the Alberta courts and that Alberta was not a clearly more appropriate forum for the claims against the two defendants. The Court also declined to order security for costs against the plaintiffs.

For more information on this case, visit 2023 BCSC 219. For more information on Allen / McMillan’s commercial litigation practice, please contact Greg at greg@amlc.ca or Kaitlyn at kaitlyn@amlc.ca.

Greg Allen, Kaitlyn Meyer and Victoria Baylis win 7-day trial

Greg, Kaitlyn and Victoria acted for the defendants who had entered a series of financial transactions with the plaintiffs over the course of several years, primarily to fund the plaintiffs’ real estate development projects. The plaintiffs filed two actions alleging, among other claims, that they had overpaid the defendants. There was very little documentation recording the parties’ transactions. Moreover, many of the allegations raised by the plaintiffs were addressed in prior related proceedings.

The two actions were heard together at trial. The court found in favour of the defendants and dismissed the entirety of the plaintiffs’ claims, including finding that they were statute barred and amounted to an abuse of process.

For more information on this case, visit 2022 BCSC 1717. For more information on Allen / McMillan’s commercial litigation practice, please contact Greg at greg@amlc.ca, Kaitlyn at kaitlyn@amlc.ca or Victoria at victoria@amlc.ca.

Wanda Simek and Derek Ball win commercial construction trial

Wanda and Derek acted for High End Hotel, a contractor that had done the piling, foundation, and framing of a hotel in Fort St John, BC. High End sued the owner and general contractor for unpaid invoices. The defendants alleged in response that High End’s work was deficient, caused delays or was not approved by written change orders. The most contentious issue was the fact that the hotel was built 1.1 metres lower than specified in the architectural plans – who was responsible for this error?

The court found in favour of High End and concluded that the general contractor was responsible for the elevation error. The court preferred the evidence of High End’s principals and awarded judgment to High End.

This trial involved delving into construction details related to site preparation, land surveying, concrete pilings, grade beams, foundation slabs, framing a four-storey hotel, and complex roof truss plans.

For more information on this case, visit 2022 BCSC 391. For more information on Allen / McMillan’s construction law practice, please contact Wanda at wanda@amlc.ca or Derek at derek@amlc.ca

Liam Babbitt successfully defends action to force the sale of a jointly owned property

Liam successfully defended an action brought by a co-owner under the Partition of Property Act (PPA) to force the sale of a jointly owned property.

Typically, when two parties equally own a property, either one can apply to the court to have it sold under the PPA. In this case, however, after living in a property for about a year, the co-owners decided to rent it out. The co-owners later separated and one of them brought an action to compel the sale of the property under the PPA. Liam established that in order to receive an order for the sale of a jointly owned property, a co-owner must have the right to immediate possession of the property. In this case, as the property was rented out, the court found that the co-owner did not have immediate possession of the property and was not entitled to an order for its sale.

For more information on this case, visit Benias v Lee, 2021 BCSC 2312 or contact Liam at liam@amlc.ca.

Greg Allen and Derek Ball win two Court of Appeal cases in one day

We are happy to announce an impressive achievement by Greg Allen and Derek Ball – two Court of Appeal victories in a single day, involving complex municipal law issues. Greg and Derek were tasked with defending a judge’s decision on one point in the case, and appealing the judge’s decision on a different point. In the first appeal, they successfully defended the judge’s conclusion that a municipal approving officer owes no duty of care to future purchasers of subdivided land. In the companion appeal, Greg and Derek successfully argued that a covenant on title registered under section 219 of the Land Title Act may include release terms, and that the release language in the subject covenant was sufficient to release the respondents’ claims against the District of Sechelt.

These two appeals are important developments in municipal law, as municipalities across the province routinely impose section 219 covenants as a condition of approving subdivisions. The Court of Appeal’s decision with respect to the availability of release language in section 219 covenants will provide important clarity and guidance for municipalities, developers and individual property owners going forward.

For more information on Allen / McMillan’s municipal law practice, please contact Greg at greg@amlc.ca.