Small Claims Court Limit Climbs to $50,000.00

SMALL CLAIMS COURT UPDATE

by Darryl A. Aarbo

The Alberta Provincial Court Civil Division aka Small Claim Court has announced that the limit that you can sue for in that Court will be raised to $50,000.00 effective August 1, 2014.

Small Claims Court offers a good alternative to plaintiffs because it offers a streamlined procedure that tends to be faster and less expensive.  One does not need a lawyer in that court because of the simplified rules, but the basic rules of evidence and procedure do apply.  They are only simplified.  In other words, the rules are not applied as strictly as in the Court of Queen's Bench, but they do apply so some claims may be better handled by a lawyer if they are more complicated.

Also, the reason that Small Claims Court is faster and cheaper is because there is only a limited right of discovery.  There is normally an order for document production, but one does not get a pre-trial discovery process (now called questioning) that is offered in Queen's Bench.  This means there is no opportunity to question the other party before trial.  This can be invaluable in some cases.

Finally, there are some matters that always have to be in Court of Queen's Bench, no matter the amount. These include Surrogate Court (wills and estates) matters, most property based claims and certain torts like defamation, to name a few.  One should always check the jurisdiction of the Small Claims Court before filing.

For more information go to Alberta Courts:

http://www.albertacourts.ab.ca/ProvincialCourt/CivilSmallClaimsCourt/tabid/96/Default.aspx

or contact one of the lawyers at Courtney Aarbo Fuldauer LLP

http://www.courtneyaarbo.ca/contact.php

Fairy Tales Film festival

Courtney Aarbo Fuldauer LLP is a proud and long time sponsor of the Fairy Tales Film Festival.  The Film festival start this evening, please come down to the Plaza Theatre to join in the excitement http://www.fairytalesfilmfest.com/

Why do I need a Will?

What happens if I die without a Will?

By Anthony Pranata

Courtney Aarbo Fuldauer LLP
www.courtneyaarbo.ca

I would like to clarify what I have recently discovered to be a common misconception regarding Wills. A number of clients have informed me of their concern to have a Will drafted as soon as possible because they did not want to die without a Will and leave all their assets in the pockets of the government. I fully advocate the importance of having a Will, but rest assured that if you die without a Will, the government is not going to swoop in and take all of your stuff, unless you have no living heirs.

The legislation that governs the distribution of intestate estates (ie. estates of people who die without a Will) can be found in sections 58 through 70 of the Wills and Succession Act, SA 2010, c W-12.2.  http://canlii.ca/t/8ntp One of the good things about this portion of the Wills and Succession Act is that a person’s intestate estate is distributed in a way that that person may have reasonably distributed it anyway had he/she drafted a Will. That is to say, Alberta law dictates the distribution of an intestate estate in a very “common sense” way.

The following are common scenarios that might occur in a situation where someone dies without a Will:

a)      If the deceased has a surviving spouse or adult interdependent partner (ex. common law spouse) with NO children, 100% of the deceased’s estate would go to the deceased’s spouse/adult interdependent partner.

b)      If the deceased has a surviving spouse or adult interdependent partner WITH children, and all of the deceased’s children are also children of the surviving spouse/adult interdependent partner, then 100% of the deceased’s estate would still go to the deceased’s spouse/adult interdependent partner.

c)       If the deceased has no surviving spouse or adult interdependent partner but has children, and all of the children were alive at the time the deceased died, the deceased’s estate would be split equally between his/her children.

d)      If the deceased has no surviving spouse or adult interdependent partner but has 2 children for example, but only 1 was alive at the time the deceased died, 100% of the deceased’s estate would go to the child still alive UNLESS the deceased child has children of his/her own.

e)      If the deceased has no surviving spouse or adult interdependent partner but has 2 children for example, but only 1 was alive at the time the deceased died, and the deceased child has 3 children of his/her own, 50% of the deceased’s estate would go the living child and the other 50% of the deceased’s estate would be split equally amongst the deceased child’s children (ie. the deceased’s grandchildren). That is, each of the 3 grandchildren would get 1/3 of 50% of the deceased’s estate.

f)       If the deceased has no surviving spouse or adult interdependent partner or children or grandchildren, the deceased’s estate would be split equally between his/her parents, or to the survivor of them if only one parent is alive.

g)      If the deceased has no surviving parents, then the deceased’s estate would be split equally amongst the children of the parents (ie. the deceased’s siblings and half-siblings).

The above examples are only SOME of the possible scenarios that may occur and is by no means an exhaustive list. You will need to refer to the Wills and Succession Act or consult a lawyer if you require information on an intestate estate situation that is not addressed above.

It is possible that the government will get your money, but it would be rare.  Under the terms of Unclaimed Personal Property and Vested Property Act, C. U‑1.5 there are provisions that the government may get the money, but you really would have to have no know heirs.  http://canlii.ca/t/81wh

Even though the law has measures to deal with intestate estates, I highly caution against relying on the Wills and Succession Act to dictate the distribution of your intestate estate in lieu of preparing a Will, especially if the legislation would dictate a distribution contrary to what you would have otherwise wanted. For example, if you have no surviving spouse or adult interdependent partner but you have 3 adult children, and you only have a good relationship with 1 of your children, you may want to give the majority or entirety of your estate to that one adult child. This would have to be specified in a Will. If you do not have a Will when you pass away, your 3 adult children would share equally in your estate.

Drafting a Will provides other significant advantages:

a)      Designate Executor (personal representative) -- You can designate a personal representative to manage your estate when you die. This is likely going to be someone that you highly trust as that person will have full access to your sensitive financial information. Without a Will, the person who ends up being entitled to administer your estate may not be someone that you would have wanted to gain access to your financial information.

b)      Designate Guardian -- You can designate a guardian for your children. Most often your primary choice is going to be your wife/husband/partner, but it would be wise for you to choose an alternate guardian in the event you and your partner die in a common accident. Choosing an alternate guardian is normally a conversation you would have with your partner while taking into account a variety of factors, not the least of which is who you believe would be the best person/couple to raise your children in accordance with your own beliefs and values. However, without a Will, you will not be able to dictate who gets guardianship of your children. In the best case scenario, your children will go to the person/couple you would have otherwise chosen. However, in (one of) the worst case scenario(s), there will be a massive fight amongst your family members as to who would be the most suitable guardian. If they cannot come to an agreement, they would have to make an application to court for the court to decide who would be the most suitable guardian. Further, the legal fees incurred in this application would likely be taken out of your own estate which is money that would have otherwise gone to your children. Though there may only be a small percentage of families who would put up this much of a fight over guardianship of your children, the fact remains that such a hassle is easily avoidable by drafting a Will.

c)       Designate personal items -- Many people have possessions that have low market value but high sentimental value. For example, a necklace passed down from generation to generation may not be worth very much if you try to sell it at a jewelry store, but is still very important to you because of all of the adventures that necklace has experienced. Most people prefer to leave their sentimental items to a particular person, whether it be their child, one of their relatives, or even a close friend. This is something that, again, can only be accomplished with a Will. Without a Will, all of your belongings, including your sentimental items, would be distributed to the person(s) entitled to your property in accordance with the Wills and Succession Act, which may not be the person you would have wanted to have such a keepsake.

d)      Cost and Clarity -- A Will is at least just as much for your loved ones as it is for yourself. If you die without a Will, or for that matter, if you die with a Will that has been poorly drafted, any inconvenience by reason of such is suffered by your loved ones, not you. Without a Will, your loved ones are the ones who are going to have to expend the time and energy to apply to court to be your estate’s administrator and your children’s guardians. With a poorly drafted Will, your loved ones are the ones who are going to have to rack their brain to interpret your Will and determine how you wanted to distribute your estate upon your death. These are all things you can avoid with a properly drafted Will.

The above are several examples of why you should draft a Will instead of leaving your estate to be distributed as an intestate estate in accordance with the Wills and Succession Act. With a Will, you can dictate the distribution of your estate in your own terms without having to worry about whether the law on intestate estates will distribute your property in a manner you want.

For more information, please contact the law office of Courtney Aarbo Fuldauer LLP at:

Address:              3^rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone:                403-571-5120

Email:                   info@courtneyaarbo.ca

Anthony Pranata, Barrister & Solicitor
apranata@courtneyaarbo.ca

To see Anthony's bio:
http://www.courtneyaarbo.ca/pranata.php

To visit our Will and Estate Planning page:
http://www.courtneyaarbo.ca/wills.php

The Wills and Succession Act of Alberta:
https://www.canlii.org/en/ab/laws/stat/sa-2010-c-w-12.2/latest/sa-2010-c-w-12.2.html

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*

Employment Law -- case comment

HUMAN RIGHTS UPDATE - EMPLOYMENT LAW

One of the most interesting decisions I have come across in the past year has been the decision of Fair v. Hamilton-Wentworth District School Board 2013 H.R.T.O. 440.   http://canlii.ca/t/fq6vhThe Ontario Human Rights Tribunal found that the employer had breached its obligations under the Ontario Human Rights code by terminating employee’s employment in 2003.  She was not accommodated and instead was terminated.  The Tribunal ordered that the non-union employee be reinstated to employment despite the fact that she had been away from the workplace for approximately a decade.  

It is true that the Ontario legislation specifically provides for reinstatement, but it is extraordinarily unusual for employees to be reinstated in a non-union workplace.  In fact, the writer has never seen the exercise of this remedy outside of a unionized workplace.  Why?  I suspect that it would be very difficult for both the employee and employer to be reintegrated without the assistance a union.   In what position would she be placed?  Her old position?  There are no bumping rights in employee law as opposed to the world of labour law.  If the employer were to remove the prior employee and that employee had been there for ten years then they would on the hook for a severance package, a severance package for a 10 year employee.

The case is very interesting but it seems unlikely to catch on as a remedy generally within this area of the law.

 Darryl Aarbo, Courtney Aarbo Fuldauer LLP
darrylaarbo@courtneyaarbo.ca

To see Darryl's bio: 
http://www.courtneyaarbo.ca/aarbo.php

To see our human rights page:
http://www.courtneyaarbo.ca/human_rights.php

Alberta Human Rights Commission:
http://www.albertahumanrights.ab.ca/

Privacy Law -- Labour Law Update

Employment Law – Privacy Law

Case comment on: 

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 2013 S.C.C. 62 http://canlii.ca/t/g1vf6

During a lawful strike lasting 305 days both the Union and the Employer videotaped and photographed individuals crossing the picket line.  The Union posted signs in the area of the picketing stating that images of persons crossing the picket line might be placed on a website.  A number of people filmed complained to the Alberta Information and Privacy Commissioner.  The case ended up at the Supreme Court of Canada.  The issue was the general rule that organizations cannot collect, use or disclose personal information without consent.  It was held that by imposing restrictions on the ability of unions to communicate and persuade the public of their cause, the act impaired the ability of the Union to use one of the most effective bargaining strategies in the course of a lawful strike.  This infringement of the right to freedom of expression was deemed disproportionate to the government’s objective of providing individuals with control over the personal information that they expose by crossing a picket line and was therefore unconstitutional.  The declaration in validity was  suspended for twelve months to give the Alberta Legislature time to decide how best to make the legislation constitutional compliant.

It is the writer’s opinion that privacy laws have gone too far in certain circumstances.  Although extremely important to have privacy laws at one level, they seem to have been taken to extreme measures in some contexts.  The information being collected in this case appears to have been collected in an open and public space.  The people were being given notice of the fact that they were being recorded.  It is not as if they were being filmed in secret or on private property.  It used to be that filming or capturing images in the public was perfectly acceptable and reasonable.  There does not seem to be any logic in extended these laws to covering situations where people are in the public’s fear.   Good decision by the SCC.

Darryl A. Aarbo, Barrister and Solicitor

darrylaarbo@courtneyaarbo.ca

visit our employment law page
http://www.courtneyaarbo.ca/employment.php

visit Darryl's bio:
http://www.courtneyaarbo.ca/aarbo.php

Office of the Information and Privacy Commissioner of Alberta:
http://www.oipc.ab.ca/pages/home/default.aspx

Human Rights Update -- Employment Law

HUMAN RIGHTS UPDATE - EMPLOYMENT LAW

A very interest case to come recently is Wilson v. Solis Mexican Foods Inc. 2013 ONSC 5799. http://canlii.ca/t/g0nkm The Ontario Supreme Court exercised its jurisdiction under the Ontario Human Rights Code to award human rights damages in a wrongful dismissal action.  After a back injury the employee was terminated after she requested a gradual return to work.  Instead she was terminated.  The Court held that the termination of employment was due in whole or in part to Ms. Wilson’s back injury and awarded $20,000.00 for discrimination on the basis of disability.  It is interesting and unique because section 46.1 of the Ontario Code provides that a Court in a civil proceeding may make an award with respect to the breach of the person’s human rights.  In that regard it does make sense and it all seems perfectly reasonable, but it does demonstrate a further evolution away from the decision in Honda Canada v. Keays of the Supreme Court of Canada.  It is a decision that does not make any practical sense with respect to this area of the law.  One can only hope that the Alberta Courts will follow suite and/or the Alberta legislature would also see the merit in distancing itself from the principals set out in Honda Canada v. Keays.  As stated before in an earlier post, the Supreme Court of Canada decision was likely correct at law, but not terribly practical for the modern funding of human rights commissions.  Surely it could have found a way to allow more crossover between human rights and employment law.

by Darryl A. Aarbo, Courtney Aarbo Fuldauer LLP
http://www.courtneyaarbo.ca/aarbo.php
darrylaarbo@courtneyaarbo.ca

Link to Alberta Human Rights Commission: 
http://www.albertahumanrights.ab.ca/

You Tube and Copyright Law

Posting Videos on YouTube – Copyright Infringement or Not? 

The “Mash-Up” Provision

By Anthony Pranata of Courtney Aarbo Fuldauer LLP
http://www.courtneyaarbo.ca/index.php

Have you ever watched a YouTube video where the creator of the video used a popular song as the background music? Have you ever wondered whether the creator got permission from the artist of the song to use the song in the YouTube video? Have you ever wondered what would happen if the song artist decided to sue that video creator for “stealing” his/her song without permission?

You may have come to the logical conclusion that it is not worth it for pop stars like Justin Bieber and Miley Cyrus to crack down on that artistic YouTube video creator who decided to use “Baby” and “Wrecking Ball” in his video, and you are probably right. However, from a legal perspective, even if those artists wanted to crack down on the video creator, the video creator would have many defences available to him against these superstars.

Generally speaking, you cannot use a substantial portion of copyrighted work in your own work without the permission of the owner of the copyrighted work. However, copyright law is full of exceptions, one of which being the exception of non-commercial user-generated content. This exception is enumerated in section 29.21 of the Copyright Act, RSC 1985, c. C-42 (a new piece of legislation that was introduced into the Copyright Act in 2012) – this provision is sometimes referred to as the “mash-up” provision. This provision states that it is not an infringement of copyright to use even a substantial amount of a copyrighted work in your own new work provided that:

1. The copyrighted work has already been published (ie. made available to the public);
2. Your new work was created for non-commercial purposes;
3. The source of the copyrighted work is mentioned in the new work if it is reasonable in the circumstances to do so;
4. The creator of the new work had no reason to believe that the copyrighted work was itself an infringement on another party’s copyright; and
5. The use of, and dissemination of, the new work does not have a substantial adverse effect on the copyrighted work.

If the above conditions are met, the YouTube video creator would not have to worry about million dollar lawsuits from Hollywood pop stars. However, if the video were to become YouTube famous and the video creator started raking in royalties as a result, he might want to consider giving Justin Bieber’s and Miley Cyrus’ agent a call to see if he can get a license from them.

For more information, please contact the law office of Courtney Aarbo Fuldauer LLP at:

Address:              3^rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4

Phone:                (403) 571-5120

Email:                   info@courtneyaarbo.ca

Anthony Pranata, Barrister & Solicitor
 http://www.courtneyaarbo.ca/pranata.php

apranata@courtneyaarbo.ca

Canadian Intellectual Property Office:
http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home

*The information contained in this blog is not legal advice. It should not be construed as legal advice and should not be relied upon as such. If you require legal assistance, please contact a lawyer*