Driving in British Columbia as a foreign national…

By Daniel Henderson

In British Columbia, foreign nationals are permitted to drive if they are in possession of a legally issued foreign driving licence for a long as they are a full time student at a recognized University, College, or Educational Institution. Recognized means in this context that the Institution can grant degrees or local students are eligible for student loans to attend.  The foreign driver’s licence must be accompanied by an English translation if the language of the licence is not English. The foreign national must be in possession of both the licence and translation (if necessary) when operating a motor vehicle.

Foreign nationals should be aware that sometimes the local police refuse to accept a foreign issued licence as valid. In order to reduce the chance of this occurring, the foreign driver should also keep in their possession their student visa and their school transcript showing their full time attendance to show to the police if stopped. If the foreign national is, nonetheless, issued a ticket for failing to produce a valid driver’s licence or driving without a valid licence, then the driver should dispute this ticket. If a foreign driver receives an indefinite driving prohibition for driving without a valid licence, do not continue to drive. The driver can appeal this prohibition by written submissions to the Superintendent of Motor Vehicles. The penalty for driving while prohibited is quite severe; including the temporary seizure of the motor vehicle, a one year driving prohibition, and approximately $1500 in fines and penalties for a first offence.

If you find yourself in any of the predicaments discussed above, we would be happy to assist you in resolving the matter for you.  Please contact our criminal defence team to discuss or book an appointment with Daniel Henderson.

Loaning money to family members…

With the ever rising cost of real estate in Vancouver, first time home buyers are often required to look for additional sources of financing in order to purchase a home.  Usually these first time home buyers receive assistance from their families and the family may try to document and secure this loan with a promissory note in the event that their child eventually gets a spouse.  This is a suggestion that an accountant made to one of my clients.  The concern with this is that there are two kinds of promissory notes commonly used in these transactions, a demand note that is payable upon the demand of the lender or holder of the note, and a contingent note that is payable once an event occurs, such as the passing of a certain amount of time. 

Since these situations usually occur when there is a “friendly” loan made between family members, a simple demand note is usually chosen as the lender can simply request payment when the borrower is ready to pay rather than requiring payment by a certain date. Many would think that this means that the limitation period for a demand note will begin to run when the repayment is demanded, however this is actually not the case.  This exact type of situation was considered by the British Columbia Court of Appeal in Kong v. Saunders, 2014 BCCA 508 (CanLII), and there the court found that the limitation period begins to run from the date that the demand note is made for all such demand notes made prior to June 2013.  Fortunately, section 14 of the current Limitation Act, passed in June 2013, states that the limitation period of 2 years begins to run on the first day that a failure to pay the note has occurred.  Unfortunately, all demand notes that were made prior to June 2013 are already under a 6 year limitation period that began to run once that note was created.

If you have a demand note, for whatever reason, that was made prior to June 2013 then you should consult a lawyer to determine the current status of the enforceability of such a note.

If you have a situation where you have loaned money to a family member and are in situation where you seek to recover that amount or your family has become embroiled in a family law dispute please contact Chen Shen.

An overview of the Employment Standards Act

The Employment Standards Act and Regulation set minimum standards of wages and working conditions in most workplaces in British Columbia. There a number of provisions limit or exclude coverage for certain groups such as independent contractors, employees covered by the Federal Government’s labour standards and various other types of employees that are excluded such as lawyers and professional engineers.  However, generally speaking the vast majority of working people are covered by the Act in British Columbia. 

The Employment Standards Act’s minimum standards include hours of work, rates of pay including minimum wage and overtime, vacation pay, requirements of recording pay statements and various other areas such as statutory holidays.  If an employer is in breach of any of the minimum standards of the Employment Standards Act, then the employee has a right to have the breach resolved and file a complaint to have the adjudicators of the Employment Standards Branch issue a decision.  Keep in mind that for any breach of the Employment Standards Act, the complainant must file a complaint within 6 months of that breach or else they lose the right to file a complaint.  In general, the complainant may only file a complaint related to matters that occurred 6 months prior to the date of the event that resulted in the complaint however this may be extended in the case of vacation pay.

If a complainant reaches a settlement agreement or has a Determination granted in their favour then the complainant has a variety of mechanisms available to enforce the Determination including charging it as a lien against real or personal property of the employer or any other person, removing up to 2 months of unpaid wages from the personal accounts of the employer’s corporate officers and registering it as a Supreme Court judgment.  Furthermore, penalties against the employer ranging from $500 to $10,000 per contravention of the Act may be collected.

It is common that small and medium sized business are in breach of the Employment Standards Act without any intent or often without even having any knowledge of the possibly breach.   For employers, given the significant consequences of a breach of the Employment Standards Act, that they seek the advice of an experienced employment lawyer to assist them in making sure that they are in compliance with the Act or to represent them in a case where they have or will likely have a complaint filed against them.  For employees who are concerned about whether their employment is in breach of the Act or wish to have assistance with making a complaint.   

Finally, both employers and employees should be aware that there are many rights at common law that may exist between employers and employees at common law depending on the terms of the employment contract between the parties.

If you have a matter that concerns the Employment Standards Act or employment law as a whole please contact Eric Chow.

Honesty is the best policy when Immigrating to Canada

By Chen Shen and Eric Chow

Canada is an attractive country for new immigrants and Vancouver is where many choose their start in Canada. With high demand and limited availability, some immigrants might be tempted or misled by unscrupulous consultants to make themselves look more attractive through falsehood or omissions. It would be a grave mistake to do so and it could jeopardize the applicant’s whole future in Canada.

Canada’s society and immigration system relies on the integrity of the application process to admit the best-suited immigrants, and take misrepresentation extremely seriously. The Immigration and Refugee Protection Act allows the government to revoke the visa or Permanent Resident status of anyone found to have made misrepresentations in a material way. This means that anything which would have affected their decision, or could have affected the decision, could lead to a revocation of the status.

The risk does not end at Permanent Residency. The Citizenship Act even allows the revocation of citizenship if it was obtained by false representation, fraud, or omissions of important information. This power is routinely exercised by the Federal government.

If you are accused of committing a misrepresentation, a report will be made to the Immigration and Refugee Board, which will hold a hearing about the accusation. If you are found to have committed a misrepresentation at this hearing, the Board will likely issue a Removal Order against you, which will deport you out of Canada.

However, Canada recognizes Humanitarian and Compassionate grounds to allow some individuals to stay even if it is found that they have committed a material misrepresentation. If you are a Permanent Resident, you may make an appeal on these grounds. The factors that will be considered were set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] IABD No 4, which are:

  1. The seriousness of the misrepresentation and the circumstances surrounding it
  2. The remorsefulness of the appellant
  3. The length of time spent in Canada and the degree to which the appellant is established in Canada
  4. The appellant’s family in Canada and the impact on the family that removal would cause
  5. The support available to the appellant in the family and the community
  6. The degree of hardship that would be caused to the appellant by removal from Canada, including the conditions in the likely country of removal; and
  7. The best interests of the children affected

Appellants who now have Canadian family and dependent children, who have become productive members of Canadian society, are often given a second chance to remain in Canada despite their earlier misrepresentation. There may also be other appropriate ways to stay in Canada, such as a refugee application, depending on why you left your original country.

Misrepresentation on an immigration application can have severe consequences for applicant even if it was not initially found out, and even if the applicant did not intentionally lie. If you are accused of committing a misrepresentation, it is important to speak to a lawyer immediately to know your legal jeopardy, your rights, and your options. Don’t miss the opportunity to defend yourself right from the start.

If you have an immigration matter that involves making an immigration application, please contact Joyce Ling.  If you have an immigration matter that may require you to make an appeal to the Immigration and Refugee Board or Federal Court, please contact Chen Shen or Dan Henderson.

Family Law Protection Orders

By Daniel Henderson

 

Under section 183 of the Family Law Act, a third party may apply to the courts for a protection order on behalf of an at risk person who is at risk of experiencing family violence from a family member. For example, a teacher could apply for a protection order on behalf of one of their students if that student was at risk of experiencing violence from his or her family member.

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