Wes McMillan and Nojan Kamoosi win commercial real estate trial

Wes McMillan and Nojan Kamoosi successfully represented the potential purchaser of a development site in North Vancouver.  The potential purchaser signed a contract to purchase the site from the defendant owners (a bare trustee and the beneficial owner).  As is common, the contract contained a provision allowing the purchaser to convert the land purchase to a share purchase.  The plaintiff elected to do just that.  For a variety of reasons, the deal did not complete, and the plaintiff sued for return of its $1.35 million deposit. 

The case turned on the corporate structure utilized by the defendant owners.  Wes and Nojan successfully argued that the contract was unenforceable because the parties to the contract did not own the shares to be purchased (exemplified by the latin maxim nemo dat quod non habet, or, one cannot sell that which one does not own), notwithstanding that the contracting defendants and owners of the shares had common directors and were prepared to give effect to the contract (i.e. sell the shares to the purchaser).  This case highlights the importance for parties to commercial contracts to carefully consider whether all of the persons to give effect to the contract are also parties to it.

To read the decision, visit 2024 BCSC 248. For more information on Allen / McMillan’s real estate litigation practice, please contact Wes at wes@amlc.ca and Nojan at nojan@amlc.ca.

Wes McMillan, Natalie Chan, and Mia Stewart win 19-day commercial real estate trial

Wes McMillan, along with AMLC’s Natalie Chan and Mia Stewart, as well as Nerissa Yan of Yan Muirhead LLP, obtained judgment for over 30 putative pre-sale purchasers. In 2015 and 2016, the plaintiffs entered into 32 pre-sale contracts for a development in Richmond, BC known as "AFLA".  In 2019, the developer purported to exercise a right to terminate those contracts, citing an inability to obtain constructing financing and a lawsuit that had been commenced by the general contractor against the developer.

Wes persuaded the court that the developer was dishonest in its performance of the pre-sale contracts and was not entitled to terminate them.  Wes also persuaded the court that the plaintiffs' damages should be determined as at the date they accepted the developer's breach of contract (August 2021), not the date of dishonest performance (July 2019).  The plaintiffs were awarded over $13 million in damages.

To read the decision, visit 2024 BCSC 216. For more information on Allen / McMillan’s real estate litigation practice, please contact Wes at wes@amlc.ca and Natalie at natalie@amlc.ca.

Emma Successfully Defends Wrongful Dismissal Claim

Emma successfully defended a claim for wrongful dismissal and bad faith termination.  Emma’s client was the defendant, a person with severe disabilities who employed the claimant as a personal caregiver.  

Emma successfully argued that her client had just cause to terminate the claimant’s employment, because the claimant had, on multiple occasions, failed to respond for several hours when her client called during the night for urgent assistance. These breaches had led to adverse health effects for her client. Emma skillfully argued that since highly vulnerable disabled adults are fully dependent on their caregivers,  it is a basic duty of the personal caregiver to ensure the safety and wellbeing of the person they are caring for.

The judge agreed that the claimant’s failure to fulfill this basic duty repudiated her contract of employment. Accordingly, she was dismissed for just cause and no warning was needed before termination.  

Emma also successfully argued that the termination was in good faith and that her client had communicated the termination as respectfully as possible given her disabilities.

In the result, the claimant’s claims were dismissed in their entirety.  

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Emma and AMLC’s lawyers contribute hundreds of hours to pro bono work, striving to help promote access to justice. For more information on this case please contact Emma at ecoffin@amlc.ca.

Allen / McMillan appearing at the Supreme Court of Canada in October 2023

On October 16, 2023, Greg, David and Chloe will be appearing at the Supreme Court of Canada in R v Edwards et al, a case involving whether military court martials satisfy the constitutional guarantee of an independent and impartial tribunal.

Our team will be representing the British Columbia Civil Liberties Association, and urging the Supreme Court of Canada to overturn a 1992 decision in which it limited the scope of the right to be tried by an independent and impartial tribunal in the context of the military justice system.

For those who enjoy both constitutional rights and early mornings, the hearing will be streamed live through the Supreme Court of Canada’s website.

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

Alina Chekh wins penalty petition at BC Supreme Court

Alina simultaneously successfully brought and defended a petition for judicial review on behalf of her client, the Chief Inspector of Mines.

The two petitions before the Court address the construction of s. 36.6(1) of the Mines Act, R.S.B.C. 1996, c. 293 (the “Act”) in the context of an administrative monetary penalty. In her petition, Alina challenged the finding of the Environmental Appeal Board that the penalty was statute-barred by the limitation period in the Act. Alina’s challenge to the underlying decision was successful. A corresponding judicial review application by the recipient of the administrative monetary penalty was unsuccessful.

To read the decision, visit 2023 BCSC 1328. For more information on Allen / McMillan’s administrative law practice, please contact Alina at alina@amlc.ca.

Greg Allen and Kaitlyn Meyer Successfully Defend Appeal

Greg and Kaitlyn successfully defended an appeal of their win at trial — a judgement dismissing the appellants’ claims of not one, but two actions.

At trial, the Court ruled in favour of the defendants and dismissed the entirety of the plaintiffs’ claims in the two underlying actions, including the finding that they were statute barred and amounted to an abuse of process. The trial decision can be found here and our prior post about is here.

The Court of Appeal found that the trial judge did not fall into a palpable and overriding error by concluding that he could not give weight to the opinion of the appellants’ expert, which depended on an unproven assumption. As a result, it was open to the trial judge to conclude, based on the evidence before him, that the principal of one of the loans at issue was not repaid in 2006. Further, the Court of Appeal upheld the trial judge’s findings that the New Westminster Action was statute barred. In doing so, the Court of Appeal also held that there was a clear alternate basis, separate from the limitation issues, supporting the dismissal of the claims.

For more information on this case, visit 2023 BCCA 262. For more information on Allen / McMillan’s commercial litigation and appellate advocacy practices, please contact Greg at greg@amlc.ca and Kaitlyn at kaitlyn@amlc.ca.