What can I discuss with my lawyer in deciding whether I should negotiate first or commence a lawsuit without negotiating first for my civil dispute file?

Written by: Danna Shan (law student) and Alfonso Chen

Introduction

This article sets out a few considerations that you can go over when discussing your civil dispute in B.C. with your lawyer. Due to the uniqueness of each case, some of these considerations may not be important or relevant to your case. You must go over each of the considerations mentioned in this article with your lawyer before you know how relevant it is to your case.

Considerations

Without limitation, set out below are a few considerations for you to go over with your lawyer in deciding whether you should negotiate first or commence a lawsuit without negotiating for your civil dispute file where you are claiming that the opposing party is liable to you. To note, there may be other options besides negotiating with the opposing party and commencing a lawsuit against the opposing party, which you should seek advice on from your lawyer.

  1. Expiration of the Limitation Period

A limitation period, which you should discuss with your lawyer, may apply in your case to limit the time you have the right to sue. If your right to sue is about to expire, and if you would lose the right to sue after the expiration, then you may not have enough time to negotiate, which involves back-and-forth communications that might take months to complete. As a result, your lawyer may recommend you to commence a lawsuit immediately if the limitation period is set to expire soon.

  1. Willingness to Negotiate

Whether a negotiation is successful or not often depends on how much the parties involved are willing to negotiate. If the opposing party has already asserted positions of not being liable for what you are claiming they are liable for and of their unwillingness to negotiate with you, then, in certain cases, it may only waste your time to send an offer to the opposing party.

  1. Permanent Move Away from Canada

If the opposing party is about to permanently leave the country, then you may want to commence your lawsuit and effect service on the opposing party before the opposing party leaves. Otherwise, it may be difficult to find the opposing party; other consequences may also result.

  1. Legal Expenses

The legal expenses for successfully negotiating with the opposing party is often less than that for legal representation from commencement of the action through to the completion of the trial. As a result, if there is a good chance that you can successfully negotiate a deal without even commencing a lawsuit, then it may make more sense to attempt to negotiate with the opposing party first.

Conclusion

Each case is unique and deserves a one-on-one discussion between the client and the lawyer. It is possible that in your case, you should neither negotiate nor commence a lawsuit, since you might not have a claim at all. However, in some cases, it may be clear to your lawyer after considering factors, including the aforementioned, which is the better option. Our lawyers often assist clients in identifying the strengths and weaknesses of choosing certain options in civil dispute files and would be happy to assist you and to protect your best interests.

If you have scheduled an appointment to visit our firm, we warmly welcome you and look forward to assisting you to resolve your dispute.

Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.

Danna Shan holds a Master of Law degree from the University of Cambridge and is presently a law student at the University of British Columbia.

What are some of the fundamental laws in British Columbia relating to defamation?

Written by: Alfonso Chen

Introduction

Widespread defamation can have very serious and long-lasting effects on innocent targets. For example, a saleswoman’s well-deserved and hard-earned reputation of being altruistic, easy-to-approach and caring towards clients can be eroded with a baseless false story virally spread through social media about that person’s pattern of disregard of clients’ interests. The target may suffer from significant mental anguish, among other consequences, after the defamatory statements are published.

On the other hand, people should be entitled to freely publish statements in many cases without fear of becoming liable for publishing them.  For example, a former employer stating to a potential employer that the subject employee was often late for work, when the employee was indeed always late for work while working for the former employer, may rely on defences so as not to be held liable for defamation arising from the publication.

This article sets out the basic elements of defamation and a few defences available for an alleged defamer and is current as of August of 2019.

The Elements of Defamation

There are three basic elements that a person suing for defamation must prove. All three elements must exist for there to be defamation.

  1. Identification

First, the statement alleged to be defamatory must refer to the party complaining that it was about that party. For example, the first element could be satisfied if the recipient of the statement can identify the statement to be about the complaining party, even if the statement excludes any mention of the complaining party’s name.

  1. Third Party

Second, the defamatory statements must be communicated to third parties or a third party other than the alleged defamer and the complaining party. In other words, the statements must have been sent in comprehensible form and received and understood by a third party or by third parties. Publication does not need to be widespread.

  1. Defamatory

Third, the statement must be defamatory in that it decreases a right-thinking member of society’s estimation of the subject. For example, stating to an auditor’s clients that the auditor has a pattern of consistently producing poor work in her or his capacity as an auditor, when the serious allegation is not true in any way, would satisfy the third element. Negative innuendos where external circumstances shed light to the actual meaning may satisfy the third element.

Who proves truth/falsity?

It is unnecessary for the complaining party to prove that the statements were false in order for the court to find that there was defamation. Instead, the alleged defamer can try to prove that the statements were true in order to not be liable for the defamation by relying on the defence of truth.

Including the defence of truth, otherwise known as the justification defence, there are several defences available to alleged defamers. If any of the defences to defamation are successfully established and accepted by the court, then the alleged defamer would not be held liable by that court for defamation for making the subject statements alleged to be defamatory. Two of the more common defences are set out below.

Defences

  1. Truth

Truth is an absolute defence to defamation. The statements do not have to be true in every sense for this defence to be made out. The court may find that the sting of the comments are true to be satisfied that the defence is made out.  For example, if Elizabeth states to a third party that Jack was convicted of stealing 23 chairs from the local public library when in fact Jack was convicted of stealing 22 chairs from the local public library, then Elizabeth can very likely rely on the defence of truth.

  1. Qualified Privilege

There is a defence of qualified privilege available where the alleged defamer has a legal or social or moral duty to publish the statements to another who has a corresponding legitimate interest in receiving the statement and where the alleged defamer does not publish statements with malice. For example, if Kate obtains information from a few highly reliable sources stating that Wilson plans to carry out a terrorist attack at an event at the local mall tomorrow at 3:00 p.m., then Kate can likely rely on the defence of qualified privilege if she, without malice, spreads the information to those planning to attend the event.

There are other defences, including:

  • responsible communication on a matter of public interest;
  • fair comment; and
  • absolute privilege.

Conclusion

Your reputation can be unjustifiably and irreversibly damaged if someone makes defamatory statements about you. However, to possibly obtain compensation from B.C. courts, you would need to prove the three elements of defamation and adequately refute the defences raised by the defendant or the defendants.

As someone who has been alleged to have defamed another, you should be prepared to establish that defamation has not been made out or that one or many of the defences apply to your case.

Alfonso Chen is a litigation associate of Henderson & Lee who often handles defamation files and developed a particular interest in defamation law while in law school. His practice mainly involves civil litigation and criminal defence matters.

Rosas v Toca, 2018 BCCA 191: a fascinating case on agreements to vary contractual terms

Written by: Alfonso Chen (Litigation Associate) and Isabella Wang (Articled Student)

Rosas v. Toca, 2018 BCCA 191 (“Rosas”) is a British Columbia Court of Appeal decision relating to agreements to vary contractual terms that should be fascinating for lawyers, articled students, law students, and the general public in British Columbia.

In Rosas, a lottery-winner (the “lender”) lent $600,000 with no interest to her friend for repayment after one year. Then, for several years, the lender agreed to extend the time for loan repayment for another year. After seven years have passed since the lender first lent her friend the money, the lender still had not recovered any money lent to her friend. Thus, the lender sued her friend for the amount of the loan. However, each time the lender agreed to extend the time for loan repayment for another year, the lender did not receive anything in return from her friend. Unfortunate to the lender, the British Columbia Supreme Court decided that such variations to the existing contractual terms were unenforceable for lack of consideration from the lender’s friend. Accordingly, the Supreme Court decided that the limitation period, which is the period after which a court proceeding must not be brought with respect to a claim, already passed by the time the lender sued and dismissed the lender’s claim.

The lender then appealed to the Court of Appeal, which overturned the Supreme Court decision.

Mr. Chief Justice Bauman, writing for the Court of Appeal, provides on para 183 of Rosas:

When parties to a contract agree to vary its terms, the variation should be enforceable without fresh consideration, absent duress, unconscionability, or other public policy concerns, which would render an otherwise valid term unenforceable.

In Rosas, as the variations were enforceable even though the lender did not receive consideration for her extension of time for her friend to repay the loan, the Court of Appeal found that the lender’s cause of action arose when her friend failed to pay on the repayment date of the last extension that the lender provided to her friend. Therefore, the action was not precluded by the limitation period.

Articled student, Isabella Wang, thinks highly of the decision and trusts that the case will soon be canvassed in great detail by courts of other jurisdictions. Looking toward the future, litigants and legal representatives can expect to find more fascinating cases if courts in British Columbia and elsewhere do discuss Rosas in the context of various types of contracts.

Contracts and limitation periods are often more complicated areas of our legal system that litigants require legal representation and advice on. Our firm has several lawyers who can review your contracts or represent you in court regarding litigation involving contracts. If you seek the assistance of lawyers on your file, we welcome you to meet with our lawyers to discuss your case.

Alfonso Chen is a litigation associate of Henderson & Lee. His practice mainly involves civil litigation and criminal defence matters.

Isabella Wang is an articled student of Henderson & Lee and mostly represents clients in the areas of corporate law, real estate law and general litigation. She is expected to become a lawyer in early 2020.