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*

Should I hire a Employment Lawyer to Review my Severance Package

Should I Hire an Employment Lawyer to Review your Severance Package?

By Darryl A. Aarbo
www.courtneyaarbo.ca

We get a lot of calls from people who have been terminated from their employment wondering if they should hire a lawyer to review their severance package. A severance package can be a very important legal arrangement with lasting consequences for a person’s career and financial well-being.

Assessing a severance package requires a proper intake interview to determine all of the relevant variables and factors that should go into a severance package. I have yet to see anything on the Internet that can provide this advice in a meaningful way to a person due to the number of variables. This does not mean that the lawyer has to undertake a detailed analysis of case law in every circumstance. Most experienced employment law lawyers can provide an opinion relatively quickly after a proper intake interview. In other words, the lawyer can usually render an initial verbal opinion at the end of an initial consultation. It is normally a preliminary opinion without the aid of legal research, but a range can be provided with some accuracy if you get an experienced employment law lawyer.

The Internet is one of the greatest inventions of our age, but it does give people the false sense of security that they can become an expert in any field instantly by reading a couple of articles on the Internet on a particular topic. Unless and until we get to the point where information can be downloaded instantly into the human brain like in the movie The Matrix then there will be value added to hiring professionals to obtain advice in medicine, accounting, law and just about any  other discipline.

Because of the nuances in the law and the interconnected legal relationship between an employee and employer it is impossible to advise a client as to whether it is appropriate to hire a lawyer to further negotiate a severance package until the intake interview is completed. Sometimes the package on offer is reasonable.  Sometimes it is most appropriate for the employee him or herself to return to the employer to ask for some additional monies or components to the severance package.  Sometimes it is faster and most appropriate for the lawyer to counter offer.

If a lawyer is hired to negotiate a severance package then there is no guarantee that that lawyer can improve the offer.  Nevertheless, hiring a lawyer does send a message to the employer that the employee is serious about his or her concerns and is taking a professional approach to dealing with the concerns. Termination can be a difficult process for both the employee and the person terminating. In smaller or midsize companies the person doing the terminating and negotiating on behalf of the employer may have worked with that person in a close capacity for many years.  Hiring a lawyer by the employee often results in the employer hiring a lawyer to represent its interests.  Hiring lawyers to negotiate the package allows the parties to remove any distractions and focus on the issues in an efficient and meaningful way.

Further, if a person has been terminated from a large corporation with a sophisticated human resources department and there is no personal connection between the involved parties then that employer often appreciates the professionalism of dealing with a lawyer, even if they do not retain its own lawyer during the negotiation phase.

Hiring a lawyer allows the parties to focus in on the real and material issues in dispute between the parties in an efficient manner without dealing with any irrelevant issues that may unnecessarily complicate the process.  I can tell you from years of experience that no employer wants to pay more than it has to on the termination of an employee. Further, unless there is an existing and valid contract that deals with the termination then most employers go in low with any offers.  Without a lawyer most employees accept the first offer and therefore the employer saves money on the package itself and any legal costs that may be incurred. This does not mean that they put their best offer forward first. In my experienced most employers leave some room for negotiation.

Finally, sometimes the employers are simply not sophisticated in the area of employment law. They make mistakes and they sometimes dig in their heels with offers that are inappropriate or even illegal as they may violate employment standards legislation. Sometimes these employers feel that they know better and make a horrible offer and dig in their heels. The best advantage to having a lawyer in this case is that employer will usually go get their own lawyer and that lawyer will explain to the employer why their offer cannot be maintained law and a more reasonable offer is forthcoming.  The size of the company does not determine this issue.

Finally, one aspect that people almost always forget to negotiate on their own is the own reference.  A experienced lawyers knows what and when to negotiate a reference.

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

Darryl A. Aarbo, Barrister & Solicitor
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl's email: darrylaarbo@courtneyaarbo.ca

Employment Law page: http://www.courtneyaarbo.ca/employment.php

*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*

Family Law Information -- Separation, Judicial Separation and Irrecincilability

Family Law Information from Experienced Family Law Lawyers:

What is the Difference between a Separation, a Separation Agreement, a Judicial Separation and a Declaration of Irreconcilability?

by Olivier Fuldauer

 These similar-sounding things are actually quite different.  A separation describes the situation where one spouse or both spouses (married or common law) decide not to live together as spouses anymore and take some physical step to create the separation. This can be moving to another room or another home altogether.

A Judicial Separation in Alberta means a type of court order that can be obtained under the Matrimonial Property Act that lets people apply to the court for a division of their matrimonial property. It’s a fairly narrow concept that gets very limited use because it is just one of several possible preconditions to making a court application to divide matrimonial property. The Matrimonial Property Act only applies to married couples.

A Declaration of Irreconcilability is similar type of order that the court can make under the Family Law Act. This order can apply to a broader range of people, not just married people. A Declaration of Irreconcilability states that the parties (married spouses, common law spouses or adult interdependent partners) have no prospect of reconciling. The point of this type of order is similar to the Judicial Separation order described in the above paragraph. It is one of the possible preconditions to making a court application to divide property under the Family Law Act (married or not married people) or matrimonial property under the Matrimonial Property Act (married people).

A Separation Agreement is a type of contract that is the end-result of a negotiation. It is an agreement that can contain as much or as little of what separating people want to agree to in writing. The beauty of Separation Agreements is that they are flexible and legally enforceable, particularly regarding division of property and spousal support.

To be effective under the Matrimonial Property Act, Separation Agreements must have been made with legal advice. The legal advice should include advice on how favourable or unfavourable the Separation Agreement is. An agreement between two people on how they want to sort out their affairs without this legal advice has little or no legal effect.

For most people a Separation Agreement is an important goal because it can give finality on division of property and spousal support. And even though there is less finality on issues related to children, a Separation Agreement still goes a long way toward setting the roadmap for the way forward regarding parenting and child support.

Olivier Fuldauer, Barrister and Solicitor
Olivier's bio:http://www.courtneyaarbo.ca/fuldauer.php

Email Olivier: ofuldauer@courtneyaarbo.ca

Family Law Page: http://www.courtneyaarbo.ca/family_law.php

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

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

Phone:                 403-571-5120

Email:                  info@courtneyaarbo.ca

*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*

Legal Waivers and Assumption of Risk in Extreme Sports

Liability Issues with Backcountry Skiing,

Extreme Sports, Waivers and Assumption of Risk

Kennedy v. Coe

2014 BCSC 120

 http://www.canlii.org/en/bc/bcsc/doc/2014/2014bcsc120/2014bcsc120.html

By Darryl A. Aarbo

Back country downhill skiing is becoming more popular.  Advances in equipment technology combined with the assistance of highly trained guides have allowed more people have the pleasure of experiencing this style of skiing.  Just as technology and sherpas as made climbing Everest easier than when Sir Edmund Hillary first climbed it, backcountry skiing has been made easier with new skis and guides who know where to go.  I have tried it and I love it.  In fact, I am now quite addicted to powder skiing.  I have done a number of trips into the backcountry using helicopter and cats.  No lifts lines, absolute quiet, stunning scenery, deep light powder that makes you feel like you are floating.  Those are just some of the things that make it a fantastic experience.

The downside of more people into the back country is more accidents and more deaths.  This year was no exception.  It is very dangerous and even the best guide cannot completely avoid all avalanches.  Also, unbeknownst to many, one of the biggest dangers is not avalanches but tree wells.   Most people that fall into a tree well cannot get out without assistance.  In an experiment, 90% of volunteers that went into one could not get out without assistance.  Without assistance most people will die.  A tree well is basically a void around the base of a coniferous tree.  It acts like a “booby trap”, as we used to say as kids.  If the snow is deep enough you can ski right over it without even knowing you are skiing over a tree until you hit the void.  There are places in the Purcell and Selkirk Mountains ranges where you are sking on many metres of snow.  Also, if skiing in trees that are clearly visible then you may never notice the wells because the lower limbs of the trees and  the loose snow on top of the well make it almost invisible.  Once in a tree well, the more you struggle against it, the more the walls collapse around it and the more snow falls down from the tree above covering the victim.  Having a buddy is critical to getting out alive.

It was inevitable that a tree well death would end up in a law suit.  The first case of its kind was Kennedy v. Coe, a 2014 decision of the British Columbia Supreme Court.  It has become known as the “Ski Buddy” case.  On January 11, 2009 a man died while heli-skiing with a group of guided skiers in the back country when he fell into a tree well.  He was not rescued and suffocated.

The man’s widow sued his assigned “ski buddy”.  This is the person that was assigned to ski with the deceased at various times during the day.  The two men had never met each other before sharing this adventure.  It is common practice in back country skiing for the guide to pair people up, especially when skiing through the trees where tree wells are common.  The idea being that if one person goes into a well then the other person can help get them out.  When skiing through the trees it is impossible for the guides to watch every skier all the time. 

The widow did not sue the heli-ski company or the guides, but sued the buddy.  The deceased had signed a waiver regarding the heli-ski operation.  She argued that the buddy owed her husband duty of care and he failed in that duty of care when he did not assist her husband when he fell into a tree well.  This is the first case of its kind in Canada. 

What this case was asking was whether those two men owed a duty of care to each other and if so, was the defendant negligent in the exercise of his duty of care. 

The Court found that there was not a duty of care between the two skiers in the circumstances of this case.  The Court left it open to find that a duty of care could arise in a different fact situation.  The Court found that in this case the guide had not expressly instructed the two to ski together for the portion of the run where Mr. Kennedy died.  Thus, leaving it open to another court to find a duty of care in a different fact situation.  In particular, the court seemed to suggest that if they had been told to ski together on that run then there may have been a duty of care.  The Court went on to find, however, that if there was a duty in this case then the defendant met that duty.  He reported the man missing within one to three minutes of meeting at the assigned spot. 

Practically speaking, however, reporting someone missing within a few minutes at the bottom of the hill is not much help.  If you have ever done this before, you would know why.  When you are at the bottom of a treed run and you look up, there are hundreds if not thousands of trees.  The road back is deep snow, possibly metres deep, up a sharp incline.  Where do you start looking for a person buried in snow?  If his tracks got skied over then it could be impossible. 

The court also talked about the assumption of risk in a high risk sport.  What follows are my comments on the assumption of risk in high risk sports.  I represent a lot of sporting clubs and umbrella sporting groups.  I tell them all the same thing.  There is a difference between the voluntary “assumption of risk” and “negligence” – never forget that.  The waiver is an acknowledgement of the inherent risks of any sport and is particularly important in cat or heli skiing.  People need to know that they can die and how they can die so they can make an informed decision as to whether or not they want to participate.  The waiver is very important in that regard.  If someone dies in an avalanche or tree well then the waiver is important.  Also, it is important to deal with injury, such as a broken leg or neck for that matter.  It should not be open to someone to participate in an extreme sport and then sue because that person broke a leg. 

For the waiver to be most effective there should be a close monitoring of the signing process.  At a resort I was at recently there was an employee that hovered with each guest individually and ensured that they read the waiver and then asked if we had any questions.  They would be able to state unequivocally that we read it, if asked in court.  I suspect that they were also monitoring for alcohol or drug consumption because they were close enough to our face to smell anything on my breath.  That is the proper way to have a waiver signed.  Anything less could affect its enforceability.

Where waivers get complicated is negligence.  Again, there is the assumption of risk, but this does not cover errors and omissions made by people in the exercise of their duties.  It is an important distinction and not many appreciate the difference.  Waivers are not very effective, if at all, to cover negligence. I will give you an obvious example.  If there is a problem with the helicopter, the operator is informed of the problem and continues to use it despite the advice of the mechanic that there is a problem.  There is an accident and people are injured.  There would likely be liability.  The ski resort clearly owes a duty of care and an accident would be foreseeable once the mechanic advises of a problem.  The waiver does not cover heli accidents when the resort pushes forward in spite of a known problem. 

I will give another more subtle example of something that happened to me over Christmas.  I was cat skiing with my buddy.  My friend bought a new pair of skis and, although the DIN setting was fine while resort skiing, when we were in the deep powder the DIN setting was obviously not correct.  My friend kept popping out.  It was frustrating for the whole group and we were already running late because a couple of skiers from Ontario decided at the last minute to rent those packs that expand in the event of avalanche so we were already running about half an hour behind.  It was going to be an awesome powder day because it had been snowing like crazy, and probably one of the first really good powder days of the season.  The front guide was visibly annoyed by the situation, he seemed more concerned about his good day skiing than safety.  As we were about to head into the trees my friend asked for a screwdriver to adjust the setting.  He was obviously concerned about heading into the trees.  I will never forget what the front guide said: “Just gimp it down and we will fix it at the bottom”.  Both the back guide and myself jumped in and said absolutely not, we fix it now before we go into the trees.  It was the back guide who pulled out the screwdriver and let my friend fix it himself. 

As a friend and lawyer I have a lot of problem with the guides’ comment.  If my buddy had followed that advice and then ejected and hit a tree or then fell into a tree well then I have to think there is a chance that there would be liability.  There was a statement by a person in authority, he basically ordered him down and an accident occurred then there could be a legal problem.

The other thing with this guide was that his instructions were very poor.  It was snowing like crazy and windy at the top, yet he talked forward a lot of time.  He would start talking to us and then turn to start his run, while finishing his sentence – while giving us instructions!  If we were at the back, we had to ask other people what he said.  What if we were supposedly told to keep left of his tracks and ski within 20 metres but we thought we heard him say keep within 20 metres of his tracks, we ski right within 10 metres and fell off a cliff or set off an avalanche?  The last thing about this guy (as you can tell I was not impressed).   

These are real life examples where problems could have been caused by the guide.  Real life examples that could have resulted in a problem but did not.   Again, I would not think that waivers cover these examples.  Getting the customer to assume the risk does not allow the organization to get away with negligent behaviour.  There is a clear duty of care imposed upon  guides.  Their behaviour and training is crucial.  They have to put safety first always, even when you have a couple from Ontario renting more equipment at the last minute or have a slow skier or a skier has technical problems.  Safety First.

For more information contact:

Darryl A. Aarbo, Barrister & Solicitor
3^rd Floor 1131 Kensington Road N.W., 
Calgary Alberta T2N 3P4 
403-571-5120

Darryl's email: darrylaarbo@courtneyaarbo.ca
Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl Skiing:

*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*

Estate Planning for Persons with Disabilities

Estate Planning for Persons with Disabilities

Discretionary Trusts and Registered Disability Savings Plans

By Courtney Aarbo Fuldauer LLP, Barristers & Solicitors

It is always a huge concern for parents of persons with disabilities to estate plan for when the parent dies.  How will a disabled son or daughter be looked after?  Two savings vehicles have traditionally been resorted to, the “Discretionary Trust” and the “Registered Disability Savings Plans”.

1. Discretionary Trust

In Alberta, traditionally parents would set up a discretionary trust whereby a Trustee, often a brother or sister of the disabled child, would be appointed Trustee over a sum of money.  This Trustee would invest the fund and pay it out to cover the needs of the disabled child.  Often, any money left in the fund on the death of the disabled child would go back to the parents’ Will to then be distributed to other beneficiaries. 

Disabled adults in Alberta regularly receive support payments from the Alberta Government (usually under the “Aish” program).  In the past, the government would allow the disabled adult to continue to receive Aish benefits so long as the amount in the discretionary trust did not exceed $100,000.00.  The discretionary trust thus was a vehicle to purchase “extras” for the disabled adult, above the minimal amount received from Aish.

Unfortunately, government officials have recently indicated that the policy of Aish benefits continuing even though there was a discretionary trust for the disabled adult not exceeding $100,000.00, is now no longer the policy.  In the future, the Aish benefits may well be cut off until the $100,000.00 fund is exhausted.

In our view, the discretionary trust vehicle should not be considered as a supplement amount on top of Aish benefits anymore.  It may well be however, that the discretionary trust estate planning vehicle is still useful to care for the disabled adult for other valid reasons.

2. Registered Disability Savings Plan

The preferred vehicle for looking after a disabled adult, after his or her parents are gone, is probably the Registered Disability Savings Plan (“RDSP”).

Anyone can set up a RDSP for a disabled person.  It functions a lot like an RESP in that there is no tax deduction on contributions, but any interest, and as well various government grants to top up the fund are not taxable.

The maximum amount of contributions is $200,000.00.

A parent can contribute to the fund after death through his/her Will and can name the RDSP as a beneficiary up to $200,000.00 from RRSP/RIF accounts.  Money left through an RRSP/RIF from a parent can even be rolled over to the RDSP without the RRSP money being deemed cashed in and taxed.

 A parent can name a person to administer the RDSP in the case of a disabled adult beneficiary with a mental disability.

 Lastly, and possibly most importantly, Alberta government officials have indicated that an RDSP plan (up to $200,000.00) will not result in the disabled person being cut off from their Aish (government) benefits.  Obviously, this is quite different then the government policy on discretionary trusts.

If we at Courtney Aarbo Fuldauer LLP can assist further in the Will documentation required to plan for a disabled beneficiary, we would be pleased to do so.

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

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

Phone:                (403) 571-5120

Email:                   info@courtneyaarbo.ca

Gary C. Courtney

Barrister & Solicitor
garycourtneyaarbo@courtneyaarbo.ca

*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*

What can I do with my Copyright -- Intellectual Property Law

What can I do with my copyright?

By Anthony Pranata of Courtney Aarbo Fuldauer LLP

So you are the owner of a copyright. What does that mean?

It means you have the sole discretion to do whatever you want with the work. No one can use your copyrighted work without your permission.

There are several common ways to exploit your work. Firstly, you can enter into a license agreement. It is an agreement between you and another party where you authorize that party to use your copyrighted work. The license will normally dictate the extent to which the other party can use your work, the duration of the license, and what you are getting in return (often money).

Secondly, you can assign your work to another party. This is similar to a license in that you authorize another party to use your copyrighted work to whatever extent you agree upon, except that the authorization is of a permanent duration. Think of this like selling the right to your work to someone else.

Thirdly, you can have a copyright collective or copyright organization represent you. There are different copyright collectives available depending on the area of your work. For example, if you are the copyright owner of a musical work, you may be interested in the Society of Composers, Authors, and Music Publishers of Canada (SOCAN), which is the copyright collective for the performing rights in musical works.

Let’s say that a band wanted to play your musical work in a commercial setting, such as at a concert. The band would have to get your permission in order to legally use your music, which would normally involve you and the band entering into a license agreement where you grant the band a license to play your music at that concert. However, tracking you down may be difficult, and unless the band was particularly interested in playing your song, the band may simply choose the next song on their list if that song’s artist is easier to locate. SOCAN eliminates the need to personally track down every artist to obtain a license agreement. Provided that you have registered your musical work with SOCAN, SOCAN has the ability to grant the band the necessary license to allow it to play your song at the concert in exchange for a license fee to be paid by the band. As SOCAN grants more and more licenses to different parties to use your musical work, SOCAN will obtain more and more licensing fees from these parties. SOCAN will then provide you with a payment proportionate to the number of times your song has been used. These payments are called royalties.

As already indicated, there are different copyright collectives for different areas of work in order to streamline the process of obtaining a license to use that work. If you are interested in taking advantage of a copyright collective, whether to make yourself known or to make your work more easily accessible, you should find the right copyright collective for your situation.

by Anthony Pranata, Barrister and Solicitor

Anthony's email: apranata@courtneyaarbo.ca
Anthony's bio: http://www.courtneyaarbo.ca/pranata.php

Or 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

*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*

Sexual Harassment -- Employment Law Advice

Sexual Harassment -- Employment Law Advice

by Darryl A. Aarbo, Barrister and Solicitor

This is only anecdotal evidence, by sexual harassment in the workplace tends to cluster around certain days and events in a year: holiday (Christmas) parties, Stampede events (Calgary only obviously); St. Patrick’s Day and even Valentine's Day. The first three are obvious, if you have ever been to a large corporate holiday party or a corporate Stampede event in Calgary then you know that large amounts of alcohol can be consumed in a short period of time with co-workers being in close proximity of each other. Alcohol and work events are a dangerous mix.

Valentine's Day can also be a dangerous day. It is not traditionally an alcohol based event, but like buying a puppy for someone at Christmas, sexual advances to a co-worker on Valentine's Day can seem like a good idea at the time, but a little later can result in a big problem. It’s all in the planning and execution. Sometimes it is best to avoid the big "holidays" to avoid big expectations and pressure.

Mutually acceptable workplace flirtation is not sexual harassment. The key words being "mutually" and "acceptable". Co-workers are allowed to ask each other out on a date, but if it is a person in authority over a subordinate employee then problems can arise. Also, repeatedly asking someone out can also be harassment even if each request is innocuous in itself, but how many times does it take get you a date with someone playing hard-to-get and how many times does it take to get fired for sexual harassment?  Gifts delivered at work to an unsuspecting co-worker in front of the rest of the staff may or may not be sexual harassment depending on the gift and circumstances, but it can be a very awkward situation and may mean a trip to the human resources manager a bit latter on for a discussion on proper workplace behaviour if you got the “signals” wrong. Obviously overt sexual remarks and advances are wrong. Touching is always wrong, as well as showing sexualized images and innuendo.

Problems arise because sexual harassment is a very subjective thing and some employers are simply not prepared for the subtle occurrences of sexual harassment.  That is why Valentine's Day can be a much riskier day than others. It is pretty obvious that getting drunk and making a lewd remark or advance is wrong and can easily end in termination, but what about sending flowers to a co-worker in front of everyone when she does not know they are coming? What happens if he or she does accept the request to go out on a date and it is a disaster and you have to work together on Monday morning? What if a relationship commences between a manager and subordinate that is originally consensual but ends in tears and a complaint to the human resources manager.  These little subtleties can be much trickier to navigate than a serious and obvious offense. 

It is extremely important that all employers, regardless of size, have a clear, accessible and enforced harassment policy. Employees need to know the boundaries and need to know the rules will be enforced fairly and consistently at all times. It is the employer’s legal responsibility to ensure a safe workplace in world where human beings will be human beings.  The key is to be prepared before the inevitable complaint gets made. 

Happy Valentine's Day!

*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*

Darryl's bio: http://www.courtneyaarbo.ca/aarbo.php
Darryl's email:darrylaarbo@courtneyaarbo.ca

I have copy and pasted the Alberta Human Rights Commission's Information sheet on sexual harassment:

Sexual harassment

INFORMATION SHEET

A printable PDF version of this information sheet is available.

What is sexual harassment?

Sexual harassment is discrimination based on the ground of gender, which is prohibited under the Alberta Human Rights Act. Sexual harassment is any unwelcome sexual behaviour that adversely affects, or threatens to affect, directly or indirectly, a person's job security, working conditions or prospects for promotion or earnings; or prevents a person from getting a job, living accommodations or any kind of public service.

Sexual harassment is usually an attempt by one person to exert power over another person. It can be perpetrated by a supervisor, a co-worker, a landlord or a service provider.

Sexual harassment is unwanted, often coercive, sexual behaviour directed by one person toward another. It is emotionally abusive and creates an unhealthy, unproductive atmosphere in the workplace.

Employees, customers or clients can make sexual harassment complaints to the Alberta Human Rights Commission. These complaints can be costly, both in terms of financial costs and employee morale, particularly for employers who do not have an effective sexual harassment policy in place or who do not treat such complaints seriously.

Who is affected?

Males, females and transgendered [1] individuals can all experience sexual harassment. Sexual harassment can occur between individuals of different geners (for example, male to female) or between individuals of the same gender (for example, female to female).

What constitutes sexual harassment?

Sexual harassment can be expressed in many ways, from very subtle to very obvious, through any of the following:

• suggestive remarks, sexual jokes or compromising invitations;
• verbal abuse;
• visual display of suggestive images;
• leering or whistling;
• patting, rubbing or other unwanted physical contact;
• outright demands for sexual favours; and
• physical assault.

Sexual harassment and workplace romance

Mutually acceptable workplace flirtation is not sexual harassment.

Who is legally responsible?

The Supreme Court of Canada has decided that in cases of proven sexual harassment, employers are responsible for the actions of their employees.

Lack of awareness by management does not necessarily eliminate this liability.

Employer responsibilities

In Alberta, employers are responsible for maintaining a work environment free from sexual harassment for all employees, customers and clients.

A supervisor who neglects to follow up on a complaint of sexual harassment may be liable under the Alberta Human Rights Act for failing to take prompt and appropriate action.

Having an effective sexual harassment policy in place can decrease an employer's liability if a human rights complaint is made. Prompt and appropriate action on sexual harassment complaints can reduce an employer's liability still further.

Sexual harassment policy development

Commission staff can help employers develop sexual harassment policies. Staff can also provide educational workshops to help employers, managements and employees understnd their rights and responsibilities related to sexual harassment in the workplace. Please contact the Commission for more information about these services.

What to do about sexual harassment

Anyone who believes they has been sexually harassed should first make it clear to the offender and/or to a person in authority that such action has occurred and is unwanted. Employees who are harassed may also wish to contact their union or employee association.

If the behaviour persists, or corrective action is not taken, a complaint may be made to the Alberta Human Rights Commission. A complaint must be made within one year of the alleged incident or the Commission does not have the authority to accept the complaint.

For the purposes of investigation, a record should be kept of when the alleged incidents occurred, the nature of the behaviour, the names of any witnesses and any other information relevant to the investigation.

It is against the law to retaliate against anyone who has made a compliant of discrimination in good faith or who has given evidence in support of or against a complaint.
Footnote1. The words "transgender" and "transgendered" are used to refer to people who identify as either transgender or transsexual. The Ontario Human Rights Commission offers a helpful definition of gender identity on its website: "Gender identity is linked to a person's sense of self, and particularly the sense of being male or female. A person's gender identity is different fom their sexual orientation, which is also protected under the [Ontario Human Rights] Code. People's gender identity may be different from their birth-assigned sex, and may include:
Transgender: People whose life experience includes existing in more than one gender. This may nclude people who identify as transsexal, and people who describe themselves as being on a gender spectrum or as living outside the gender categories of 'man' or 'woman.'
Transsexual: Peope who were identified at birth as one sex, but who identify themselves differently. They may seek or undergo one or more medicat treatments to align their bodies with their internally felt idenityt, such as hormone therapy, sex-reassignment surgery or other procedures."
Please note: A complaint must be made to the Alberta Human Rights Commission within one year after the alleged incident of discrimination. The one-year period starts the day after the date on which the incident occurred. For help calculating the one-year period, contact the Commission.