Archive for December, 2010

Thanks to Richard Sehmer for his assistance with this article

On November 29, the British Columbia Court of Appeal released what may prove to be an important judgment on the adjustment of waterfront land boundaries as a result of either soil deposits or the ebbing of water adjacent to one’s property (“accretion”). The focus of this appeal, which is cited as Bryan’s Transfer Ltd. v. Trail (City), 2010 BCCA 531, was whether sections 94-96 of the Land Title Act, R.S.B.C. 1996, c. 250 constitutes an exclusive code regarding this issue.

The Surveyor General, under these sections, is charged with the overall responsibility for ensuring the integrity of the land survey system and the proper definitions of boundaries. The landowner, in this case, whose land had been altered by the flow of the Columbia River, submitted that the Province of British Columbia is not competent to empower the Surveyor General with the exclusive jurisdiction to determine legal questions relating to this issue.

The dispute arose after a dam was erected upstream on the river, and, as a result of the water subsiding, the land-owner’s adjacent property was extended. Further, the City (of Trail) announced that they were going to add to an existing water line and build a service road on this extended land.   After the landowner filed an accretion application pursuant to section 94(1)(c) of the Act, the Surveyor General expressed an opinion that there was no evidence of lawful accretion to his property.

The common law doctrine of accretion (as defined by Dickson J. in Re Chuckry and the Queen in Right of the Province of Manitoba, [1972] 3 W.W.R. 561 (Man. C.A.)) states that this “accreted” land is owned by the adjacent property owner.    In interpreting the statutory provisions relevant to accretion, Madame Justice Kirkpatrick, for the Court of Appeal, cited numerous authorities and concluded that if the legislature had intended to eclipse the common law, they would have done so expressly.

Since 2007, the land-owner has been attempting to sue the City for trespass and bar it from construction on ‘his’ accreted land. This decision will allow him to do pursue that claim.

Tags: accretion, frontage, land title act

This post is an excerpt from the following article.

The primary purpose of this article is to examine, in a non-union setting, some instructive British Columbia cases on the “temporary layoff” provision in the B.C. Employment Standards Act  (“ESA”) with a view to providing the reader some guidance on the subject matter by setting out governing principles for its interpretation. The author will conclude by suggesting the temporary layoff definition of the ESA should be amended to more clearly reflect the intent of the statute as articulated in recent court decisions.

The ESA, in section 1, provides an exclusive definition of “temporary layoff” as follows:

“temporary layoff“ means

(a) in the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and

(b) in any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;

Read the rest of this entry »

Tags: constructive dismissal, temporary layoff, termination of employment

The full version of the article was published in the Vancouver Bar Association’s “Advocate”

Introduction

The effect of the decision of the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. is irrefutably significant in the development of the law of wrongful dismissal in Canada.  In Wallace, the Supreme Court reviewed the law of wrongful dismissal in the context of the manner of dismissal by the employer and chose to recognize both bad faith and unfair treatment on the part of the employer at the time of the termination of employment as factors additional to those traditionally considered in determining and otherwise extending reasonable notice in wrongful dismissal cases.

However, the question the Supreme Court of Canada did not address in the Wallace decision because the facts did not warrant it, but one that will be of interest to many plaintiffs and plaintiffs’ counsel, is whether bad faith dismissal damages are subject to an employee’s obligation to mitigate damages in wrongful dismissal cases. More specifically, if a wrongfully dismissed employee, who otherwise qualifies for bad faith dismissal damages within the meaning of the Wallace decision, secures alternative employment immediately, or within a very brief period thereafter, or fails to take reasonable steps to obtain equivalent employment elsewhere, will such employee’s bad faith dismissal damage claim be limited, curtailed, compromised or perhaps even extinguished? As a preamble to this discussion, it is perhaps instructive to discuss more fully the Supreme Court’s decision in Wallace, as well as the nature and scope of an employee’s duty generally to mitigate in wrongful dismissal cases.

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Tags: bad faith, employment, reasonable notice, unfair, wrongful dismissal