Archive for the ‘Other’ Category

Shafik Bhalloo
Wednesday, September 19th, 2012    Posted by Shafik Bhalloo (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.


When a manager is not a manager: Employers beware of liability for overtime or extra pay

                                                                        By Shafik Bhalloo*


Section of the British Columbia Employment Standards Act (the “Act”) delineates overtime wage requirements for employees who work over 8 hours per day or 40 hours per week.  It states:

40. (1) An employer must pay an employee who works over 8 hours a day, and is not working under an averaging agreement under section 37,

(a) 1 1/2 times the employee’s regular wage for the time over 8 hours, and

(b) double the employee’s regular wage for any time over 12 hours.

(2) An employer must pay an employee who works over 40 hours a week, and is not working under an averaging agreement under section 37, 1 1/2 times the employee’s regular wage for the time over 40 hours.

(3) For the purpose of calculating weekly overtime under subsection (2), only the first 8 hours worked by an employee in each day are counted, no matter how long the employee works on any day of the week.

However, section 40 of Act does not apply to employees who are “managers” as Section 34(f) of the Employment Standards Regulation (the “Regulation”) specifically excludes managers (and some other categories of employees) from hours of work and overtime requirements.  It states:


34. Part 4 of the Act does not apply to any of the following:

(f) a manager;

Having said this, simply calling an employee a “manager” will not exempt her from overtime compensation under Section 40 of the Act.  It is not the job title but the job duties that determine whether or not the employee is exempt from overtime compensation under the Act.  Section 1(1) of the Regulation provides an exclusive definition of  “manager” as follows:

1. (1) “manager” means

(a) a person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources, or

(b) a person employed in an executive capacity;

In 429485 B.C. Limited Operating Amelia Street Bistro (“Amelia Street Bistro”)[1] the Employment Standards Tribunal considered several previous cases of the Tribunal on the definition of “manager” and concluded as follows:

The task of determining if a person is a manager must address the definition of manager in the Regulation….Typically, a manager has a power of independent action, autonomy and discretion; he or she has the authority to make final decisions, not simply recommendations, relating to supervising and directing employees or to the conduct of the business.  Making final judgments about such matters as hiring, firing, disciplining, authorizing overtime, time off or leaves of absence, calling employees in to work or laying them off, altering work processes, establishing or altering work schedules and training employees is typical of the responsibility and discretion accorded a manager.  We do not say that the employee must have a responsibility and discretion about all of these matters.  It is a question of degree, keeping in mind the object is to reach a conclusion about whether the employee has and is exercising a power and authority typical of a manager.  It is not sufficient simply to say a person has that authority.  It must be shown to have been exercised by that person.

If you are an employee hired in a “managerial” or “executive” position, you should examine your day-to-day duties and determine whether your primary job duties are supervisory or managerial  in character – do you have authority to make final decisions?  Do you supervise and direct employees?  Do you hire and fire employees?  Do you discipline employees?  Do you have discretion and authority to independently set or change employees’ schedules and make decisions to call in or layoff employees?  If your primary job duties includes some or most of these tasks, you may be a manager but if your primary duties do not include these tasks or if you rarely or irregularly perform these tasks, you may not be a manager within the meaning of the Regulation.  In such case, you may be entitled to overtime pay for any extra hours you work over and above 8 in a day and 40 in a week.

If, however, you satisfy the definition of “manager” in the Regulation, is your employer exempt from paying you any additonal pay for extra hours worked?  The Tribunal, in a few cases, has indicated that some managers can claim pay at “straight time” rates for extra hours worked[2] – that is, beyond 8 hours daily or beyond 40 hours weekly, if working those extra hours was not an agreed term of your employment relationship or included in your base pay.

If you are an employer desiring to curtail your exposure to pay extra to your manager for any additional hours of work, then you should consider have a binding employment contract in place that specifically addresses this issue.  More particularly, you want an employment contract that clearly specifies that the manager is expected to work in excess of 8 hours in a day and 40 hours in a week and that the manager’s base salary includes or is intended as compensation for all hours worked.

[1] BC EST #D479/97

[2] Re Fort St. John, BC EST # D265/03

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Shafik Bhalloo
Monday, September 10th, 2012    Posted by Shafik Bhalloo (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.


By Shafik Bhalloo*

Like the mythical sasquatch, the Loch Ness monster, or the abominable snowman, most of us have heard of it and some of us have read about it, but never have we seen the remedy of reinstatement in section 79(2)(b) of the Employment Standards Act (the “Act”) actually occur.

Section 79(2)(b) provides:


(2) In addition to subsection (1), if satisfied that an employer has contravened a requirement of section 8 or 83 or Part 6, the director may require the employer to do one or more of the following:

(b) reinstate a person in employment and pay the person any wages lost because of the contravention

Colloquially described as a “make whole” remedy, section 79(2)(b) gives the Director of Employment Standards (the “Director”) the discretion to order an employer to reinstate an employee and pay he or she any lost wages, if the employer has contravened one or more of sections 8 (employment-related misrepresentations to the employee), 83 (termination of employment in retaliation for an employee’s enforcement or an inquiry as to his rights under the Act), or Part 6 of the Act (refusal to allow an employee to return to work following a statutorily mandated pregnancy leave[1], parental leave, family responsibility leave, compassionate care leave, reservists’ leave,  bereavement leave or jury duty).

 While reinstatement is not a remedy that is ordinarily available at common law, it is more commonly sought and awarded in a union context, where an employee grieves an unjust dismissal. This remedy, undoubtedly a powerful one if awarded, enables the employee to make up not only their past wage loss and to continue to receive the economic benefits of their employment in the future, but also restores any psychological benefits they derive from their job.  Therefore, the transference of the remedy of reinstatement from the union experience to the non-union sector in British Columbia, in the form of a statutory remedy under section 79(2)(b) of the Act, at first glance should be a welcome option for employees in the non-union sector as providing a comparable remedy to reinstatement available to their counterparts in the union sector.

However, in practice, in British Columbia, the statutory remedy of reinstatement has yet to make an appearance in an award by the Director or the Employment Standards Tribunal (the “Tribunal”), although dismissed employees have sought it in several cases. Partly, the absence of this remedy may be attributed to the limited circumstances in which it may be available or can be sought in the non-union sector in British Columbia, namely, it may only arise if the Director is satisfied that one or more of sections 8, 83 and Part 6 of the Act[2] were breached (limitations that do not exist in the union sector). It may also be that in some cases it is impossible or impractical to order reinstatement of the wrongfully discharged employee who otherwise satisfies one or more pre-requisites of the reinstatement remedy in section 79(2)(b) of the Act. Examples of this would include circumstances where the employer ceases operations[3] or the employee has secured alternate employment[4] after filing a complaint or left B.C., and not expressed any interest in being reinstated to their former position[5].

In such cases, there is an alternative “make whole” remedy that can be found under section 79(2)(c) of the Act, i.e. to pay a person compensation instead of reinstating the person’s employmentwhich the Director has been relatively more willing to award.  The Tribunal in Afaga Beauty Service Ltd.[6] delineated a list of non exclusive factors in determining appropriate compensation for loss of employment which included: “length of service with the employer, the time needed to find alternative employment, mitigation, other earnings during the unemployment, projected earnings from previous employment and the like.” While clearly not as extensive and as fulsome a remedy as reinstatement under section 79(2)(b) of the Act, the remedy under section 79(2)(c) seeks, as far as is economically possible, to return the employee to the position he or she would have been in had the employer’s misconduct not occurred. As described by the tribunal in Photogenis Digital Imaging Ltd./PDI Internet Café Incorporated[7], the compensation awarded under this section  “must be commensurate, in an economic sense, with reinstatement”.

Having said this, in my view, the apparent reticence of the Director in declining to grant the remedy of reinstatement cannot be fully attributed to the rationale offered earlier or the existence of the alternative to the remedy of reinstatement available in section 79(2)(c). If one refers to the Director’s online Interpretation Guidlines Manual (the “Guidlines”) for the Act, published on the website of the Employment Standards Branch[8], the following explanation in relation to the reinstatement remedy in section 79(2)(b) is offered:

Reinstatement is rarely appropriate as the relationship is usually too damaged for reinstatement to be successful. Therefore, to create a “make whole” solution to a contravention of these provisions, the director considers the following

  • wages lost; which may include wages from previous employer or due to missing another employment opportunity
  • recovery of reasonable out-of-pocket expenses caused by the contravention and the search for employment. Out-of-pocket expenses does not include the cost of obtaining legal advice, or of retaining legal counsel.

It would appear that the Director has a somewhat somber perspective on the reinstatement remedy in the Guidelines that favours the alternative in section 79(2)(c)-lost wages sans reinstatement. Admittedly, it is hard to refute that in most, if not all cases, where an employer has dismissed an employee the relationship between the parties is, at some level, bruised or fractured and there is undoubtedly a loss of trust and confidence between the parties and reluctance, whether large or small, by the employer to take the employee back even where a determination has been made that the employee was dismissed under harsh, unjust or unreasonable circumstances, contrary to one or more of sections 8, 83 or Part 6 of the Act.

In the cases considered in preparing for this article, it was difficult to find any one case that stood out as a clear example of a “relationship… too damaged for reinstatement” in contradistinction to the “ordinary” case of a bruised relationship between an employee and their employer who terminated their employment in contravention of the Act.  In a few cases the Tribunal delineated the Director’s reasons for the determination in greater detail offering more insight into why the Director decided against reinstatement such as in Photogenis Digital Imaging Ltd./PDI Internet Café Incorporated[9] where the Tribunal pointed out that the principal of the employer was “angry” or “accusatory” towards the two employees who filed complaints against the employer and berated one of them before terminating the employment of both as a retaliatory measure. However in most other cases the Tribunal simply reports, with little or no explanation, that the Director concluded the “relationship had broken down”[10] or the “employer did not want the employee”[11] or “reinstatement of the employee was not appropriate in this case”[12], and in two cases stating that the Director could have made the employee whole by way of a reinstatement order coupled with an order to recover lost wages[13] but instead ordered compensation in lieu of reinstatement. The lack of sufficient explanation why the reinstatement remedy was not awarded in most cases may very well be because the Tribunal did not find any real analysis or explanation for why the Director opted against the reinstatement remedy in the reasons for the determinations under appeal.

In the writer’s view, to deny the reinstatement remedy (where the employee wants it and has otherwise met the requirements of section 79(2)(b)) only because the employer is reluctant to take back the employee, or does not want the employee, or because there are some bruised feelings between the parties will only serve to reinforce the conclusion that the reinstatement remedy is a fiction and detract from any deterrent value the remedy may have with employers, who otherwise might be inclined to dismiss employees in contravention of the Act (particularly in circumstances contemplated in section 79(2)(b)). Surely the legislators in enacting this very powerful remedy must have envisaged that it would have “teeth.”

Having said this, it would be irresponsible to end this paper without mentioning two empirical studies by academicians on how the remedy of reinstatement has fared in the non-union sector. While not suggesting by any means that either of the studies, methodologically or otherwise, should be uncritically accepted, the findings in both are interesting and contribute to one’s understanding of what could make reinstatement, in the non-union sector, a more attractive remedy. The first is a study of the post-reinstatement experience of non-union federal workers in Quebec conducted in circa 1991 by Professor Trudeau[14] of the Faculty of Law at the Université de Montréal. In his study, Professor Trudeau reported that a survey of non-union employees reinstated under the federal Canada Labour Code (the “Code”) revealed that only 54 percent of the employees returned to work; 67 percent of those believed they were “unjustly” treated by their employer after returning to work; and approximately 38 percent had thereafter resigned from their employment at the time of the study. Professor Trudeau hypothesized that the apparent ineffectiveness of the reinstatement remedy in the non-union sector was due to the lack of union presence to monitor and oversee the employer’s conduct and protect the reinstated employee from harassment and discrimination.

Professor Eden[15] of the School of Public Administration at the University of Victoria conducted a subsequent empirical study to assess the effectiveness of reinstatement of non-union employees under the Code from the perspective of the employer. In her study, written questionnaires were sent to employers whose cases had been decided by an adjudicator under the Code and reinstatement was ordered.  Out of 106 awards between January 1, 1983 and December 31, 1991, she received responses from 37 employers (or about 35 percent). She summarized the responses of the employers as follows:

In summary, out of 37 employer respondents, just over one-half indicated that complainants either did not return to work (12 respondents) or were reemployed for less than three months (7).

Of those who returned to work (25), 14 respondents rated reinstatement unsuccessful. Only seven evaluated as successful. Thus, overall, the remedy of reinstatement appears to have been effective in only 30 percent of the cases.

Professor Eden concluded that her study supported Professor Trudeau’s conclusion that the remedy of reinstatement “has not fulfilled its promise in the non-union sector.” She also concludes, “(t)he presence of a union may be a key variable in the effectiveness of reinstatement as a remedy.”

If, in British Columbia, the Director at all shares the concerns articulated in the conclusions of Professors Trudeau and Eden, and if those concerns are factors influencing him from refraining from employing the reinstatement remedy in section 79(2)(b), then perhaps a statutory presumption in favour of reinstatement in the Act, combined with an enforcement or monitoring mechanism may serve as an equalizer or substitute for the missing watchful eyes of a union in the non-union sector. In this regard, the constructive comments of Professor Eden below are apt and I would argue her recommendations equally apply in context of the reinstatement remedy in the Act:

In the absence of a union, workers ordered reinstated to the workplace would have to be provided with greater support. To some degree, this may be achieved through a follow-up mechanism directed by the governmental agency that administers the statute. For example, the same inspector who tried to resolve the dispute between the parties prior to adjudication could contact the complainant after issuance of the adjudicator’s order to ensure employer compliance with the reinstatement order. Failure to comply on the part of the employer would result in this agency, not the complainant, initiating the procedure for enforcing the remedy…

Having an enforcement mechanism such as that suggested by Professor Eden to monitor and oversee the compliance of the reinstatement remedy after it is given will only add to its effectiveness as a remedy and perhaps bring it out of obscurity in British Columbia in the non-union sector.

[1] In the case of pregnancy and other leaves permitted under Part 6 of the Act, section 54 of the Act additionally imposes on the employer specific duties not to terminate the employee’s employment and to return her to her position at the end of the leave:

54. (1) An employer must give an employee who requests leave under this Part the leave to which the employee is entitled.

      (2) An employer must not, because of an employee’s pregnancy or a leave allowed by this Part,

(a) terminate employment, or

(b) change a condition of employment without the employee’s written consent.

       (3) As soon as the leave ends, the employer must place the employee

(a) in the position the employee held before taking leave under this Part, or

(b) in a comparable position.


[2] Re Irina Berezoutskaia, BC EST #D082/08; Jim Pattison Chev-old, A division of Jim Pattison Industries Ltd., BC EST #D643/01; Re Allan Pope, BC EST #D007/05

[3] Wang Wei-Ming also known as Wendy Wang carrying on business as Ming Spa, BC EST #D012/11

[4] VCS Hytek Air-Conditioning Inc., BC EST #D201/98; The Cash Store Inc., BC EST #D087/09

[5] Afaga Beauty Service Ltd., BC EST #D318/97

[6] Ibid.,, p. 5; W.G. McMahon Canada Ltd., BC EST #D386/99

[7] BC EST #D534/02



[9] Supra, footnote 7, p. 7.

[10] Quigg Development Corporation, BC EST #RD047/08 Reconsideration of BC EST #D014/08; Rose Miller, Notary Public, BC EST #D062/07

[11] In The Cash Store Inc.[11], supra, footnote 4, it is noteworthy that the Tribunal, in upholding the lost wage award of the Director made to the employee whose employment was terminated for requesting a family responsibility leave pursuant to section 52 of the Act, observed that the Director dismissed reinstatement as a viable remedy not simply because the employee had secured an alternative employment but also because the employer “did not want her back”.

[12] Skyline Estates Ltd. doing business as “Traveller’s Inn”, BC EST #D210/03;  Maltesen Masonry Ltd., BC EST #D070/10

[13] Rite Style Manufacturing Ltd. and M.D.F. Doors Ltd., BC EST #D105/05; Orr Hotel limited and Golden Tree Lumber Inc, Associated Companies pursuant to Section 95 of the Employment Standards Act, operating as Dominion Hotel and Lamplighter Pub, BC EST #D094/01

[14] G. Trudeau, “Is Reinstatement a Suitable Remedy to At-Will Employees?” (1991), 30 Ind. Re. 302

[15] G. Eden, Reinstatement in the Nonunion Sector: An empirical Analysis” (1994), 49 Ind. Re. 87

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Robert Ward (guest author)
Wednesday, July 11th, 2012    Posted by Robert Ward (guest author) (posts)
Robert Ward (guest author)

On June 26, 2012, the Internal Revenue Service released guidance regarding the 2012 Offshore Voluntary Disclosure Program announced in January of this year.  The Program makes modest changes to the process by which taxpayers will make a voluntary disclosure but otherwise retains many of the requirements and features of the 2011 Offshore Voluntary Disclosure Initiative (“2011 OVDI”) which closed September 9, 2011.

One of the most significant changes is that, unlike the 2009 Offshore Voluntary Disclosure Program and the 2011 OVDI, the 2012 Offshore Voluntary Disclosure Program (“2012 OVDP”) may be closed by the Internal Revenue Service at any time.  The IRS has expressly reserved the ability to change the terms of the 2012 OVDP.  “For example, the IRS may increase penalties or limit eligibility in the program…at any point.”  (FAQ 3, 2012 OVDP)

Essential Features. The tax, interest, and penalties imposed on taxpayers who participate in the 2012 Offshore Voluntary Disclosure Program are generally the same as those applicable to taxpayers participating in the 2011 OVDI.

  • Taxpayers will be required to file eight years U.S. income tax returns and all applicable information returns (including Foreign Bank Account Reporting (“FBAR”) Forms).
  • Taxpayers will be required to pay the full amount of
    • unpaid U.S. income tax due,
    • a 20% understatement penalty,
    • penalties for failure to file and failure to pay,
    • interest on the tax and preceding penalties, and
    • an offshore penalty for any unfiled information returns.

Offshore Penalty. The offshore penalty under the 2012 Offshore Voluntary Disclosure Program may be as great as 27.5% of an amount equal to the highest fair market value of the taxpayer’s foreign assets (including real estate and artwork) and the taxpayer’s highest balances in all foreign financial accounts.  U.S. persons living abroad may qualify for an offshore penalty of only 5% imposed solely on the highest account balances in foreign financial accounts (and exclude all other foreign assets) if three conditions are met.  For each of the eight years the taxpayer must have

  • resided outside the United States,
  • been fully compliant with the revenue laws of the country in which the taxpayer resided and paid in a timely manner all taxes due, and
  • had no more ten thousand dollars of U.S. source income in any year.

RRSP and RRIF Relief. As part of the guidance released for the 2012 Offshore Voluntary Disclosure Program, the IRS has established a procedure by which participants may exclude income earned by investments in Canadian RRSP and RRIF accounts from the computation of taxable income and may exclude the account balances in RRSP and RRIF accounts from the computation of the offshore penalty.

New Compliance Procedures. In separate guidance, the Internal Revenue Service has announced new filing compliance procedures for non-resident U.S. taxpayers who satisfy certain requirements.  Taxpayers who represent a “low compliance risk” may be able to file as little as three years income tax returns and six years information returns to avoid all penalties if the returns submitted show less than $1,500 of U.S. income tax due in each year.  Taxpayers will not be able to take advantage of the new filing compliance procedures until September 1, 2012 and will not be eligible to participate in the 2012 Offshore Voluntary Disclosure Program.

Other Options. The guidance for the 2012 OVDP is also consistent with the 2011 OVDI in that it is clearly hostile to “quiet disclosures” in which a taxpayer reports and pays tax currently on income from foreign accounts and assets without addressing prior years’ noncompliance.  However, taxpayers who take the admonition of the IRS to heart are not left without alternatives.  The tax and penalty regime in the 2012 OVDP is rigid.  Recourse to IRS Appeals is not available.  Taxpayers willing to risk examination may opt out of the 2012 OVDP in order to present arguments based on reasonable cause, lack of willfulness, or other circumstances which may merit mitigation of penalties.

The 2012 OVDP is an important opportunity for US citizens with foreign compliance issues to address those issues in a structured settlement program. It may not be appropriate for everyone.

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Shafik Bhalloo
Monday, August 22nd, 2011    Posted by Shafik Bhalloo (posts) and Gareth Carline (posts)
Shafik Bhalloo
Shafik Bhalloo has been a partner of Kornfeld LLP since 2000. His practice is focused on labour and employment law, and on commercial and civil litigation. He is also an Adjudicator on the Employment Standards Tribunal and an Adjunct Professor in the Faculty of Business Administration at Simon Fraser University.

The importance of careful and accurate drafting of business contracts cannot be stressed enough.  However, as careful as a party may be in drafting the contract and as clear as the contractual terms may appear to the parties at the time they are signing the contract, at some point during the operation of the contract, there may arise a dispute between the parties as to the meaning of an ambiguous term in the contract-a term that is open to more than one meaning.  What is the court to do in such case?

The British Columbia Court of Appeal, in a quartet of cases – Grace Residences Ltd. v. Whitewater Concrete Ltd.[1]; Group Eight Investments Ltd. v. Taddei[2], Chuddy v. Merchant Law Group[3], and Gilchrist v. Western Star Trucks Inc.[4]– has delineated instructive principles of contractual interpretation.  These principles may be summarized as follows:

1.     The words of the agreement are the starting point and the most significant tool for interpretation.[5]

2.     The Court must interpret the words objectively, referring to the plain and ordinary meaning, unless it would lead to an absurdity.[6]

3.     The proper “plain and ordinary” meaning must take into consideration the contract as a whole, the intention of the parties expressed within the contract, and the circumstances at the time the contract was entered into[7];

4.     The Court’s will assume that each particular word was selected for a purpose and may reject an interpretation that renders a provision ineffective[8].

5.     Only if the plain and ordinary meaning of the words still results in an ambiguity such that there remain two plausible interpretations, the Court may consider extrinsic evidence regarding the intention of the parties[9].

6.     If extrinsic evidence is relied upon, the Court should interpret the words in a manner consistent with sound commercial principles and good business sense and avoid any commercially absurd meaning[10].

Following these guidelines will assist in avoiding pitfalls when drafting and, if a dispute does arise, in understanding how a Court may decide.

[1] 2009 BCCA 144

[2] 2005 BCCA 489, 57 B.C.L.R. (4th) 278

[3] 2008 BCCA 484, 300 D.L.R. (4th) 56

[4] 2000 BCCA 70

[5] Gilchrist, supra, paragraph 17

[6] Grace Residences Ltd, supra, paragraph 23-25, Group of Eight Investments Ltd., supra, paragraph 20

[7] Chuddy, supra, paragraph 207, Grace Residences Ltd., supra, paragraph 23-25

[8] Grace Residences Ltd, supra, paragraph 23-25, Group of Eight Investments Ltd., supra, paragraph 20

[9] Chuddy, supra, paragraph 207

[10] Chuddy, supra, paragraph 207, Group of Eight Investments Ltd., supra, paragraph 21

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Lana Li
Friday, April 1st, 2011    Posted by Lana Li (posts)

In companion rulings made February 18, 2011, the Supreme Court of Canada clarified the law relating to property division resulting from the breakdown of a common law relationship: Kerr v Baranow; Vanasse v Séguin, 2011 SCC 10.

The Court first noted that common law partners’ rights were traditionally based on the principles of resulting trust and unjust enrichment.

Under the traditional analysis, a resulting trust can arise in two situations: the gratuitous transfer of property from one partner to the other, or a couple’s joint contribution to the acquisition of property, where title has been registered in the name of only one of them. An unjust enrichment claimant must traditionally establish three distinct elements: an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment.

The Supreme Court rejected common past practice where courts have required the claiming partner to show a direct connection between his or her own financial or other efforts and the acquisition of the property that came to be in the other’s name. It was held that this “fee-for-service” calculation fails to reflect the reality of the lives of many domestic partners and is inconsistent with the inherent flexibility of unjust enrichment and with the courts’ approach to equitable remedies.

The court substituted a more “common sense” analysis for this rigid approach to quantifying compensation, stating at para. 69: “[T]he legal consequences of the breakdown of a domestic relationship should reflect realistically the way people live their lives. It should not impose on them the need to engage in an artificial balance sheet approach which does not reflect the true nature of the relationship”.

The courts should, however, continue to consider if a share of the property should be awarded (using the principle of constructive trust) or whether a monetary award is sufficient. Where a monetary award is to be made, the courts’ “common sense” analysis now requires a consideration of whether or not there was a “joint family venture” to which both partners contributed.
. When examining whether a relationship is a “joint family venture”, the courts are to review the evidence under four broad headings: mutual effort; economic integration; actual intent; and priority of the family. Once the “joint family venture” is established, the courts can then consider the net wealth that has accumulated proportionate to the claimant’s contributions. Thus, there must be a link between contributions and the accumulation of wealth.

In the Kerr case, the plaintiff was unsuccessful in establishing an entitlement to one-half of the wealth accumulated during the relationship. She was not able to show that the defendant had been unjustly enriched at her expense, that their relationship constituted a joint family venture, and that her contributions were linked to the generation of wealth during the relationship.” The parties kept their financial affairs separate.

In the Vanesse case, however, the couple had been working collaboratively towards common goals. They jointly raised children together and acquired wealth together. The court took into account, among other things, their economic integration evinced by a joint bank account and by the property being jointly registered in their names.

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