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Under the Builder’s Lien Act of BC, anyone who provides labour and materials for construction of an “improvement” (i.e. A building or other construction project) on land is entitled to place a lien against the land if they are not paid.

This is a powerful tool that can help an unpaid contractor or subcontractor get paid, as it prevents the owner of the land from selling or refinancing the land without dealing with the lien. In addition, construction financing will not advance any more draws to an owner or developer until a lien is dealt with.

However, there are time limits that must be strictly followed in order to have the right to file and enforce a builder’s lien.

The time limit is 45 days from the earlier of a variety of events, these events being:

1. Issuance of a certificate of completion with respect to a contract or subcontract. The certificate of completion is a piece of paper in a specified format that notifies other persons that the work under the contract or subcontract is completed. It must be sent to certain individuals and also has to be posted on the job site in a conspicuous place.

2. Completion of the head contract or of the improvement if no head contractor is engaged. This means that if there is a general contractor for a project hired by the owner then 45 days from the completion of that contract. If there is no general contractor, then it is 45 days from the completion of the overall construction project. “Completion” is defined under the Builder’s Lien Act as being 97% of the work is done, or even slightly more than that depending on the overall value of the contract. This trigger is very important to keep in mind because on a larger construction project, which trade is involved will greatly change this trigger. For instance, the formwork contractor pouring the foundations may have literally years before the head contract comes to completion. However, the painting contractor may have very little time or the project could even be completed under the definition of the act before they are even done working.

3. Abandonment of the head contact or improvement if no head contract. While there is no specific definition of abandonment under the Builder’ s Lien Act, a good example would be where the contractor is not getting paid by the owner and says “I am out of here because I haven’t been paid” and pulls all of their forces of off the project with no intention to return. The head contract or project is deemed to be abandoned under the Builder’s Lien Act if no work is done for 30 days.

4. Termination of the head contract. “Termination” is also not defined under the Builder’s Lien Act and generally is determined by looking at the terms of the contract. Usually, the owner would issue written notice of termination setting out the reasons why.

5. If the construction project is a strata, then 45 days from when the strata lot is sold to a purchaser. This trigger is designed to protect new strata purchasers from being on the hook related to liens incurred by the developer, after a set amount of time.

As the above shows, the exact 45 day cut off date can be tricky to determine depending on the facts of the situation, so generally it is advisable to contact an experienced Construction Law lawyer like Robert Carter as soon as possible if you think you may want to file a lien claim, so the time limit is not missed.

You should also contact a lawyer even if you think a lien time limit has been missed, as you may still have contract rights and/or a separate lien against holdback money the owner and contractors are obligated to retain, called a “Shimco” lien.     

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Temporary Suspension of Employment Insurance Deductions and Overpayments and How that Affects Your Severance Pay

Effective March 30, 2025, the Carney Government instituted a number of temporary changes to how Employment Insurance in Canada works. The changes were designed to bring economic relief to workers whose jobs have been lost due to the ongoing trade war with the United States, although they apply to all workers in Canada.

One of the changes has to do with the allocation of earnings from separation from employment. Before these changes, if a terminated employee was paid a severance package, normally this payment would be allocated to a number of weeks or months and the employee would not be entitled to collect Employment Insurance until this time period was up. For instance, if an employee was paid 2 months of severance pay, then they would not be entitled to be paid Employment Insurance until that 2 months was up.

Under the changes, the 2 months severance would not be deducted and therefore would not postpone the employee receiving Employment Insurance benefits. Put another way, the employee gets paid the severance and Employment Insurance for that same period of time.

This change is temporary and currently applies between March 30, 2025 and October 10, 2026. This time period applies to when a claim is made or when an allocation starts.

The allocation wording is important because if an employee gets paid severance down the road after a law suit for wrongful dismissal, then normally the employee would have to report that payment to the government and would have to repay the government Employment Insurance paid over the period of time the severance pay was allocated to. So if the employee got paid 2 months notice after a law suit, then they would have to report that and pay back two months’ worth of Employment Insurance payments. The temporary changes suspend this and the employee would not have to pay back the overpayment.

Because the word allocation is used, this means this temporary change could apply even if the employee did not file an Employment Insurance claim by October 10, 2026, as long as the severance payment was allocated to a period of time before that. For example, if an employee was terminated on October 9, 2026 and got a severance payment of 2 months, but then did not apply for Employment Insurance until December 10, 2026, they would still be entitled to keep the full severance payment without deducting Employment Insurance because the amount would start to be allocated to the day after termination, being October 10, 2026.

The wording also means that as long as a claim is made or an allocation is made during that period of time, then the temporary measure would apply. So if an employee got one year of severance and made a claim on October 1, 2026, then they would be entitled to “keep” the entire year of severance and continue to receive Employment Insurance, it would not cut off on October 10, 2026.

Given theses temporary measures are in response to job instability from the trade war, if Canada has not achieved a resolution of this issue by October 10, 2026, then it is possible these benefits could be extended.

The temporary measures also include waiving the waiting period and extending the number of entitlement weeks for long time employees. The government’s information page on the issue is linked here: Temporary Employment Insurance measures to respond to major changes in economic conditions – Canada.ca

Why are these changes important? For employees, it may make pursuing a lawsuit for wrongful dismissal make more economic sense, if the employee does not have to pay back Employment Insurance benefits as an overpayment.  For employers, the fact that a severance doesn’t have to deducted from Employment Insurance could be used as a negotiating tactic to get an employee to accept less severance than they may have otherwise and should be highlighted by the employer in termination negotiations.

If you have questions about these changes, do not hesitate to contact an experienced Employment lawyer like Robert Carter.

Call us for more information: 604.380.3517

Dying Without a Will in British Columbia – Intestacy

We, as humans, tend to project our greatest fears onto the things we don’t understand and often presume the worst-case scenario. In saying that, I mean it is commonly believed that if a person dies without having a will, the entire estate is taken by the provincial government. However, the reality is far more structured and much more complex.

In British Columbia, the Wills, Estates and Succession Act (WESA), governs how estates are managed and distributed upon death. Part 3 of WESA sets out the mandatory distribution scheme which determines how the estate is to be distributed when an intestate dies leaving:

1. A spouse and no surviving descendants:
   – The entire estate must be distributed to spouse (section 20 of WESA);

2. A spouse and surviving descendants (descendant being of both deceased and surviving spouse):
   – Spouse: $300,000 preferential share (section 21(3) of WESA); household furnishings (section 21(2) of WESA); and right to acquire spousal home within 180 days after the representation grant (section 27(2) of WESA)
   – Residue: half to spouse and half to intestate’s descendants (section 21(6) of WESA).

3. A spouse and descendants not common to intestate and spouse:
   – Spouse: $150,000 preferential share (section 21(4) of WESA); household furnishings; and right to acquire spousal home within 180 days after the representation grant
   – Residue: half to spouse and half to intestate’s descendants.

4. Multiple spouses:
   – Spousal share divided as agreed between them or if an agreement cannot be reached, as determined by the court (section 22 of WESA).
5. Surviving descendants but no spouse:
   – Equally amongst all descendants (section 23(2) of WESA).

What’s Escheat?

If someone dies without a will and has no living relatives, their property undergoes “escheat,” meaning it passes to the provincial government under section 23(2)(f) of WESA. However, individuals with a moral or legal claim to the estate may apply to the Lieutenant Governor under the Escheat Act (R.S.B.C. 1996, c. 120) to request the return of some or all the property.

Presumption against Intestacy

The presumption against intestacy is a judicial principle that the courts follow when dealing with cases related to the interpretation of wills. In essence, it means that if a will is unclear or can be interpreted in two different ways, the court will follow the one that will result in the full distribution of the estate rather than following the rules of the intestacy. However, this golden rule doesn’t exist without limitations. In the case of The Estate of Lorne A. Campbell, 2005 BCSC 1561, the court noted that an intestacy may be found when it becomes apparent that the testator simply did not think about the circumstances that may arise in the future and found that the will was silent about the matters in issue.

To avoid any misinterpretations or challenges to your will in the future, please contact Riya Singh.

Call us for more information: 604.380.3517

Most employers and employees know about the Employment Standards Act, and that when an employee is fired by an employer in circumstances without employee misconduct, the employer has to give or pay the employee notice of roughly 1 week per year of employment up to a maximum of 8 weeks (it varies a bit from this format in the first 2 years of employment).

But did you know that an employee can be entitled to more notice under the common law?

Under the common law, which is made from judges’ decisions over time, an employer has to pay or give an employee “reasonable notice” if the employer fires them in circumstances without employee misconduct.

The court calculates what is reasonable notice by considering the “Bardal Factors.”  These factors are:

1. The age of the employee (generally if the employee is nearing retirement age this will factor in to a longer notice period);

2. The duration of employment (the longer the employment the longer the notice period);

3. The degree of responsibility of the position (generally the more responsibility and difficulty associated with the job, the longer the notice period); and

4. The availability of similar employment (if you are in a niche job where there aren’t any other jobs, then a longer notice period would be required than for a job with lots of job opportunities, such as sales).

The court says there is no set reasonable notice period and each case will be decided individually depending on the Bardal Factors. While there is therefore no set “notice period.” most awards trend to about 1 month per year of service under the common law versus 1 week per year of service under the Employment Standards Act. However, each case varies so it is important to get qualified legal advice from a lawyer unique to the facts of your specific situation.

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A personal injury claim is where someone has been injured due to the intentional or negligent acts of another person or company.

When someone is injured and it is legally some other person or company’s fault, then they can pursue a law suit to get compensation for their injuries.

Generally speaking there are a few main types of claims for compensation that the injured person can make. These are called “heads of damages.” Think of these as a legally created “box” that the person claiming injury has to put their claim into in order to be legally entitled to compensation for it.

The main heads of damages are as follows:

1. Non-pecuniary damages: Most people have heard this type of damages referred to as compensation for pain and suffering. This is an amount of money to reflect the unpleasant nature of an injury and the pain associated with it as well as the impact on your day to day life. A judge has broad discretion in making an award for pain and suffering and generally will look at past court decisions involving similar injuries.

2. Past Income Loss: This is a claim for any money someone has lost because they were unable to work due to their injuries. A person making this claim has to show that their injuries stopped them from working, as opposed to some other reason.

3. Future Loss of Capacity: This is a claim for how someone’s injury may affect their ability to work in the future. This could be a claim for what the person would have made over their working life, if the person is completely disabled from working for life due to injuries, or it could be an amount to reflect that the person’s injuries make them less able to do certain types of jobs or limit them to part time work, for instance.

4. Special Damages: This is a claim for anything an injured person is out of pocket paying for. Usually this comes in the form of fees to get treatments not covered by universal Canadian healthcare, such as physiotherapy or massage therapy. This claim could also be for the cost to replace personal items damaged in an event that caused an injury, like if the force of falling broke someone’s watch. A person making this claim needs to have receipts for these costs in order to make a claim.

5. Future Costs of Care: If any injured person needs ongoing assistance or care, they can make a claim for the future costs of this.

There are certain other types of claims that a person can make in an injury claim, but the above are the most common.

Compensation is based on the individual facts of each case and you should consult a lawyer like Robert Carter if you are injured and want to know how much compensation you may be entitled to.

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Since May of 2021, the Provincial Government of BC has changed the law so that all ICBC personal injury claims (i.e. all injury claims arising from motor vehicle accidents) are now subject to a “no fault” system similar to WCB claims and the injured victims of car accidents have been stripped of their rights to pursue a legal claim for fair compensation. Injured victims are no longer entitled to compensation for pain and suffering. The only claims still available are for coverage for medical treatments and income loss claims, but these claims are now much more limited.

As a result of these changes, there is no role for lawyers in most ICBC injury claims anymore and we no longer take such cases except in certain specific and rare exceptions. We do still take personal injury cases arising from non car accident related causes.

If you think these changes are unfair, we encourage you to talk to your local MLA. We are hearing more and more stories of people being left financially destitute due to these unfair changes and the reality is we all effectively have much less coverage under our car insurance for injuries than we used to have, but ICBC and the BC government has kept most of the additional profit. For instance, in the 2024/2025 fiscal year, ICBC made a net income of approximately $1.65 billion dollars. Keep in mind, ICBC was originally incorporated as a Crown Corporation to provide affordable insurance to BC citizens and to be a break-even enterprise, not a government cash cow.

Nick de Dominico, one of ICBC’s first adjusters and then a long-time mediator, now retired, has written a history of ICBC explaining how we got here that can be explored at the following link:   Home | ICBCHx

Disinheritance is a term used to describe a situation where someone is deliberately prevented from inheriting someone else’s property in circumstances where they would normally be entitled to. The classic example is a parent giving their entire inheritance under their will to their favoured child and cutting the other child completely out of the will.

In these types of circumstances, the disinherited person may have a legal claim to be entitled to a share of the estate.

In the case of a will that doesn’t make adequate provision for the will maker’s spouse or children, the disinherited person can make what is called a “Wills Variation Claim” to ask the court to rewrite the will and reapportion the will maker’s property on a fairer basis. See the Wills Variation Act here.

Unfortunately, in many cases a deceased’s property does not pass through their estate and instead is put into joint ownership with another person or is gifted to another person during the deceased’s lifetime, and a Wills Variation Claim is not possible. However, if there were circumstances that were suspicious, such as one adult child having an elderly parent with dementia transfer all the parent’s property to the one adult child, then that child’s siblings may have a claim to challenge the transaction on the basis of it being done with “Undue Influence” and it being an “Unconscionable” transaction. The law also presumes that if a parent puts property into joint ownership with an adult child that the transaction was not a gift, unless there is clear evidence it was, such as an agreement in writing.

If you think you have been disinherited, it is important to seek the advice of a lawyer like Robert Carter to determine your legal rights. Also, if you are making a Will or doing Estate planning, it is important to seek the advice a lawyer like Riya Singh so you don’t unintentionally create a legal headache for your loved ones when you pass.

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Generally, there are two main ways people operate their businesses in BC, although there are others. The two most common ways are to either operate as a sole proprietorship or to incorporate a company.

A sole proprietorship means simply you operate the business as the legal individual you are. You may pick a business name, but legally the business is you. John Smith might start a moving business and call it Smith’s Moving, but the business would legally be him doing business under that name.

If you incorporate a company, then you are creating a new legal entity that is considered a fictional person at law, with most of the rights and responsibilities real legal people have. An incorporated company can own property and enter contracts, and it can also be charged with crimes.

But why would anyone incorporate a company versus simply operating as a sole proprietorship? The answer is that there are pros and cons to each.

One of the biggest advantages to incorporating a company is the concept of “limited liability.” What this concept means is that if the company owes money to other people or companies due to debts or being sued for some reason, then its obligations to the people it owes money to are limited to what money or assets the company owns. In other words, the owners, or shareholders, of the company will not be responsible for the company’s debt if the company cannot pay. This allows the owner to carry on their business without risking their personal house or money if the business fails.

The second main advantage of incorporating a company is that it gives the owner(s) more options in terms of tax planning. Company taxes are much lower than income taxes, which in many cases allows the owners to take advantage of these different rates. For instance, if the business had a fantastic year and made way more money than the owner needed to live on, a sole proprietor would have to pay income taxes on all of the net income earned in the year. In contrast,  the owner of a company could take some money out of the company to live on, which would be subject to income taxes, but then leave some of the money in the company and pay a much lower corporate tax rate on that money. Obviously, an accountant would be the person to get advice from to understand the tax options that come with incorporation.

One of the advantages to a sole proprietorship is that it is much cheaper and easier to get the business started. A person would still need a business licence and may want to register their company name as a proprietorship (so someone else doesn’t use the business name or get the legal right to it). However, if you incorporate a company you will likely need the assistance of a lawyer to properly set it up.

Another advantage to a sole proprietorship is that the annual costs are also much less than with a company. An incorporated company needs to file certain documents with the corporate registry each year and do certain filings in its minute books. If the owner doesn’t know how to do these filings themselves, then they will need to hire a lawyer to assist. Also, a company must file a separate tax return each year which in most cases will mean that the business owner will have to engage an accountant. That said, the tax advantages that come along with being incorporated may far outweigh these costs and if the owner is in a “risky” business the limited liability afforded by a company may be well worth these additional costs.

Generally speaking, a sole proprietorship probably works best for a small one person start up business, but if the business is larger with many employees and is making sizeable revenue, then an incorporated company will be much more advantageous.

Each businesses’ needs are unique so you should contact a lawyer like Riya Singh if you want to explore what business model would work best for you.

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